Should I waitto file fora divorce until after my spouse gets a personal injury settlement?

UPDATED: Oct 8, 2011

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Should I waitto file fora divorce until after my spouse gets a personal injury settlement?

My husband is getting a settlement in a couple months due to him getting hurt at work. I have been a stay at home mom for 3 1/2 years to raise our son together. This past year I worked just 2 1/2 hours a day. I want a divorce from my husband, and he has everything vehicles bank accounts but I have my personal items along with my sons stuff. Am I entitled to any money from the settlement?

Asked on October 8, 2011 under Family Law, Iowa


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

In answer to your question, if the award is to compensate for injuries, pain and suffering, loss of enjoyment, or medical bills (and they do not have any impact on the marital estate), then it is considered separate property and should be fully awarded to the injured person. 

However, in some state courts have held that a personal injury settlement (and workers comp awards are treated the same) is marital property if it is for compensation for lost wages and medical bills that have an effect the marital estate. Additionally, in cases where there is a lower settlement amount than what would have otherwise occurred (e.g. due to low policy limits), a court is within its right to allocate a portion of such an award to lost wages even though the settlement indicates that it is for personal injury only.
Since this can all get somewhat complicated, you should consult directly with a divorce attorney in your area.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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