We are the masters of our destiny, kings and queens of our castle.  We live in a world where we can choose everything we experience—our playlists, podcasts, social media connections—so you would assume you have complete control of what happens when you settle your personal injury, workers’ compensation, or medical malpractice case.

But you don’t.  At least not completely.  Especially if you are married.

Am I advocating against people getting hitched?  Of course not!

But if you are married when you get injured, be wary that what you think is coming your way may not be all yours after all.

Marital Property

I’m no expert on divorce law.  In fact, other than having survived one, I don’t really know much about how that area of the law works.

I am, however, familiar with the concept of marital property.  Marital property essentially is property that either spouse acquired during the marriage, no matter whose name it is in.  

For instance, a paycheck either one of you earns during the marriage is marital property. So is property that you buy during the marriage, like a house or car. And if one spouse wins the lottery with a ticket purchased during the marriage, those winnings are considered marital property too. 

There are some exceptions, but for the most part, any property acquired by either spouse during the marriage is considered “marital property,” which means it is subject to division in a divorce. 

What about a settlement or judgment in an injury case?  Can your spouse take some of that from you?

As usual in law, the answer is, “it depends.”

It Depends

 The general rule is that if you are injured and are married when the injury occurs, you, as the injury victim, are entitled to the proceeds.  Except that if you get divorced, divorce lawyers will always try to argue the other spouse should have a stake in that case.  You might argue, hey, I was the one hurt here, why should he or she get any of it?  But it’s not quite so simple.

What if you claimed that you needed your spouse to help you bathe and change your dressings during your recovery?  Or if your case involved a claim for loss of consortium (in other words, that your spouse was deprived of your companionship and affection due to your injury)?  What if you claimed in your personal injury lawsuit that you had to have your uninjured spouse run your business while you were recovering?

All these can be factors used to argue that your spouse might be entitled to part of the financial recovery from your injury case. (However, in catastrophic cases where the injury is solely to the one spouse without any of the factors mentioned above, courts often are reluctant to take away money from a severely injured person.)

How about another example?  Let’s say you are at work as a nurse and injure your shoulder lifting a patient, leading to a workers’ compensation claim.  At the time of your injury, you are living with your fiancé.  You share a house, you co-parent children, and you have joint bank accounts.

But you are not married at the time of the injury.  Let’s say you do get married later, while your case is pending in the system.  But the marriage doesn’t work out and you agree to divorce.  All goes well until his lawyer starts asking questions about your workers’ compensation case. 

Can your now ex-spouse get his hands on your case proceeds if it resolves?  Possibly.  While you and your lawyer will argue there was no marriage when your injury occurred, his lawyer will argue he was there for you during the case, while you recovered from surgery, and that you are married now.

It’s not always so easy to draw a bright line.  With money involved, everything can be argued. 

Let’s say your case is worth $200,000 and settles for that amount.  After attorney’s fees and costs, you net $155,000 tax-free.  How much money are you willing to pay your divorce lawyer to make sure you keep all of that?  Is it worth paying your spouse a small portion of that settlement to reach a resolution? 

And what if the former spouse came into a $20 million settlement?  How much would each side pay to keep/get to some of that?

Best Practices

If you retain a personal injury, medical malpractice, or workers’ compensation lawyer, tell him or her the truth about your domestic situation at the first meeting.  If you are having an affair behind your husband’s back and plan to file for divorce next week, that would be very important information to tell your lawyer early in the representation.

If you are still married legally, but live apart, you should tell your lawyer about this arrangement.

Similarly, if you cohabit but are not married, this is important information.

All of these things can affect the type of claims available to be pursued. Loss of consortium, for example, can only be pursued if the injury occurred during the marriage.

If you are disabled, you must be certain your lawyer is aware of who has power of attorney over your medical decisions and financial matters.

In short, if you have an estate plan—a will, a trust, powers of attorney for healthcare and property, living will etc., tell your injury or workers’ comp lawyer!

The worst thing you can do is hide your marital status from your lawyer, only for a giant settlement to occur, and for your lawyer to get dragged into a legal fight with your soon-to-be ex-spouse. 

Takeaways

  • A settlement or judgment that counts as marital property might have to be shared with your ex, even if you are the only one injured
  • Many factors affect who might be entitled to a portion of an injury settlement
  • Tell your injury or workers’ compensation lawyer immediately the current status of your marriage and of any plans to divorce

Contact Chicago Personal Injury Lawyer Stephen Hoffman

As in all cases involving injury, dog bites or animal attacks, workers’ compensation, medical malpractice, or other injury and potential liability, if you have been hit by a vehicle immediately get medical treatment, report the crash to police and your own insurance company, and contact a lawyer with expertise in your type of case, such as bicycle accidents or pedestrians hit by cars.

If you’ve been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has over 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything up front, and he only gets paid if you do. Don’t wait another day; contact Stephen now.