Big changes in life can often be a trigger for a divorce.  There are fewer bigger changes than sustaining a significant personal injury and then receiving a subsequent settlement or award for that personal injury.  Often, this change in physical and financial circumstances can make a marriage unsustainable and, thus, subject to divorce.  What is the relationship between divorce and personal injury in Illinois? What happens to a personal injury award in an Illinois divorce?

Marital vs. Non-Marital Property In Illinois

All assets that either party has in their name or possession at the time of divorce must be classified as marital or non-marital for the purposes of division of assets pursuant to that divorce.

After an Illinois divorce, property classified as “non-marital” assets will remain with the party that has those non-marital assets in their name and/or possession.

However, property classified as “marital” assets will be divided by Illinois divorce courts.

Illinois courts divide marital assets equitably.  This means that an Illinois judge has great powers to divide marital property as the judge sees fit.

90% of the time an Illinois judge will just divide the marital property 50/50 for the sake of fairness and efficiency.  Any deviation from 50/50 is usually based on some outside factor like “he makes a lot more than she does so I’m going to divide the marital property 55/45 in her favor.”  I, personally, have never seen an Illinois court “equitably” split a marital asset in a greater ratio than 60/40…except in the case of personal injury awards (more on this later)

So, in the context of a personal injury award, is a personal injury award marital or non-marital property in Illinois?

Are Personal Injury Awards Marital or Non-Marital Property in an Illinois Divorce?  

In re Marriage of DeRossett, 173 Ill. 2d, was an Illinois Supreme Court case that settled this question.

Mr. DeRossett got terribly injured in 1990.  Mr. DeRosset filed a workers’ compensation claim and proceeded to wait for resolution of worker’s compensation claim…which took years.

Well, marriage is hard and it’s even harder when one person is horribly injured.  Mr. DeRossett filed for divorce four years later in 1994 and his workers compensation settlement still wasn’t settled.

The Iocal Illinois court found that the workers compensation award would be split 70/30 between Mr. and Mrs. DeRossett, respectively, once it was finally awarded.

Mr. DeRossett went all the way to the Illinois Supreme Court to contest this divorce court’s ruling.  Mr. DeRossett argued that a bulk of the settlement was to compensate Mr. DeRossett for wages he couldn’t earn because of the accident.  Mr. DeRossett further argued that those unearned wages would have been earned AFTER the divorce so that portion shouldn’t be marital.

The Illinois Supreme Court rejected that argument because it “completely ignores section 503 of the [Dissolution] Act, which mandates what constitutes marital and nonmarital property for purposes of disposition on dissolution of marriage.” The Illinois Supreme Court specified “marital property” means “all property acquired by either spouse subsequent to the marriage.”

So, if you get a personal injury award while you’re married, that personal injury award is marital property.

The Timing Of The Injury Can Impact Whether A Personal Injury Award Is Marital or Non-Marital Property In An Illinois Divorce.

Mr. DeRosset’s error was simply one of timing.  If Mr. DeRosset had been injured before he was married, the subsequent award would not have been found to be marital property.

In re Marriage of Burt, 144 Ill. App. 3d had the same facts as DeRosset but Mr. Burt was hurt before the marriage occurred.  The court determined that a property interest begins at the time of the actual accident NOT when the final settlement check gets written.

My Personal Injury Settlement Is Marital! What Do I Do?

Recall that marital property in an Illinois divorce case is not divided 50/50.  Marital property in Illinois is divided “equitably”

Now recall that Mr. DeRossett’s wife got only 30% of his future settlement award.

Years ago, I represented a gentleman who had a similarly large settlement that was definitely marital property…I had read the DeRossett case.  But, I also knew that 50/50 wasn’t the default.

I asked that the matter be set for pretrial.  I explained to the judge that my client’s injury was terrible and he has to live with that injury for the rest of his life.  Why should his wife get any money from the injury that hurt him and him alone?

The opposing counsel said, “This money is marital!”

I replied, “Even If the personal injury settlement is marital, what is the fair portion to give her?…I think it’s 10 percent”

The judge agreed with me and the opposing counsel accepted the recommendation!

I’m not one to kiss and tell but the judge has since retired and the attorney is no longer practicing (that’s another story).

If you don’t ask, you don’t get.   So, ask for something minimal. What’s the worst that could happen? 50/50?

I Can’t Work Because Of My Personal Injury.  Should My Spouse Support Me?

Absolutely! You are still eligible for spousal maintenance (formerly known as alimony) even if you’ve received (or are about to receive) a personal injury settlement.

The Illinois maintenance statute lays out several factors to consider that are very favorable to the injured:

  • “The needs of each party.” 750 ILCS 504(a)(2)
  • “The realistic present and future earning capacity of each party.” 750 ILCS 504(a)(3)
  • “Any impairment of the realistic present or future earning capacity of the party against whom spousal maintenance is sought.” 750 ILCS 504(a)(5)
  • “The age, health, station occupation, amount and sources of income, and sources of income, vocational skills, employability, estate liabilities, and the needs of each party.” 750 ILCS 504(a)(9)

But, the statute also does consider that possible personal injury settlement money

  • “All sources of public and private income including, without limitation, disability and retirement income.” 750 ILCS 504(a)(10)

Proceed with caution! You may want to trade your temporary spousal maintenance for your future personal injury settlement.

So, if you have a personal injury claim and you’re thinking about divorce, please contact my Chicago, Illinois Family Law Firm for a free consultation.

If you’re looking for a great Chicago Personal Injury Attorney, I recommend Rosenfeld Injury Lawyers.  They’re a short walk from my office see below.