When one a couple is in the middle of a divorce and one spouse is about to receive a settlement from a car accident or other personal injury claim, which spouse gets the money? The answer depends on the timing of the accident and what the rest of the assets in the case look like.
The Timing of the Accident and the Settlement
Illinois has two different categories of property in a divorce: individual property and marital property. Each spouse is allowed to keep his or her own individual property. However, the court divides marital property equitably.
Marital property is a broad category that includes all property acquired by either spouse during the marriage, subject to a few exceptions. None of the exceptions cover personal injury recoveries.
If the incident that gave rise to the settlement happened before the marriage, then the settlement is most likely individual property. However, if the incident happened after the marriage, even if it happened after divorce paperwork was filed, it is most likely marital property.
One exception would be if the incident occurred after the marriage and after a judgment of legal separation was secured. Even though a couple is still technically married after an order of legal separation, any property acquired after the order is individual property and not marital property.
If the Settlement is Marital Property? How Will It be Divided?
When marital property is divided, judges are legally required to take into account a variety of factors and then divide the property fairly according to those factors. Some of the factors include the ability of both spouses to earn income and acquire assets after the divorce, the contribution of both spouses to the marriage, including as a homemaker, and any child support or spousal maintenance payments. This means that the marital property is almost never divided evenly.
In the case of a personal injury settlement, the amount of the award will be added to the total assets of the marriage. Because money is one of the easiest assets to divide, part of the settlement will most likely be used to make the assets balance out the way the judge feels is fair. This may mean that the injured spouse could end up with little, or even none, of the settlement.
For questions concerning property division or any other family law issues, you need to speak with a knowledgeable DuPage County family law attorney. Call Sullivan Taylor, Gumina & Palmer, P.C. at 630-665-7676 to schedule your consultation today.
Source:
http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59
