Is my spouse entitled to any part of my personal injury settlement if I filed for divorce prior to the accident?

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Is my spouse entitled to any part of my personal injury settlement if I filed for divorce prior to the accident?

Separated for 2 years; living in separate rooms of the house. Filed for divorce in 10/09. I bought car in my name and insurance policy is in my name. I was injured in accident in December.

Asked on December 16, 2010 under Family Law, Illinois

Answers:

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

Answered 10 years ago | Contributor

Typically, unless there is a legal separation agreement in effect, your spouse's rights remain the same as if you were in a stable marriage.  However, that having been said, the general rule is that if the settlement is to compensate for injuries, pain and suffering, loss of enjoyment, or medical bills that do not have any impact on the marital estate, the settlement is separate property and should be fully awarded to the injured person. 

It should be noted that, some state courts have held that a personal injury settlement is marital property in the following situations: commingling assets by accepting the entire settlement in one check made payable to both parties; compensation for lost wages; and medical bills that have an impact on the marital estate.  In addition, when there is a lower settlement amount than what would have otherwise occurred due to low policy limits or a lack of funds from the responsible party, there is no abuse of discretion for a court to allocate a portion of the settlement to lost wages even when the settlement indicates that it is for personal injury only.

At this point you need to consult directly with an IL divorce attorney as to your specific situation.


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