Marital Assets: How Will Illinois Treat My Personal Injury Award in a Divorce?

 Posted on November 19, 2015 in Divorce

A personal injury accident can happen at any time and under a variety of circumstances. Neither single individuals or married couples are immune from the risk of being injured in a personal injury accident. Depending on the extent of the victim’s injuries and associated expenses, the victim can be awarded a substantial sum of money (sometimes called “damages” or a “compensation award”). These awards are meant to compensate the injury victim for medical bills, lost wages, and pain and suffering (amongst other losses). But will an Illinois divorce court order such an award to be divided if the victim and his or her spouse divorce? The answer: It depends.

When You Receive Your Personal Injury Award before Marriage

If you win your personal injury lawsuit and are awarded damages before marriage, the damages you are awarded will most likely be considered separate property and remain your property if you subsequently marry and divorce. In other words, your personal injury damages would be treated in the same manner as any other property you received prior to the marriage. The divorce court would generally not consider the award’s value when dividing the marital estate between you and your spouse.

Will a Court Ever Divide Your Personal Injury Award?

There are two potential situations in which a court may choose to divide your personal injury award along with other marital property. The first situation is where you receive your personal injury award while you are married to your spouse. Illinois courts consider most property and assets acquired during the course of the marriage to be “marital property” that must be divided fairly and equitably between the parties at the time of divorce. Thus, even if you were the only one injured in your accident, the compensation meant to help you with your losses may figure into the court’s determination of what is a “fair and equitable” division of the marital property.

Even if you received your personal injury award prior to marriage, a court may still consider it part of the marital estate and subject to property division if you commingle your award with other marital assets. For example, depositing the award money in the same account you and your spouse deposit your paychecks and/or from which you or your spouse withdraw money to pay household expenses can be considered “commingling” and can result in the court treating your personal injury award as marital property.

How an Illinois Family Law Attorney Can Help You

A court may deviate from these general rules and will treat the parties “fairly and equitably” where the facts do not clearly indicate whether a personal injury award is separate or marital property. A skilled DuPage County divorce attorney can help present facts and arguments to the court so that a personal injury award is characterized in the manner most beneficial to you. Contact one of our three offices for help – we have locations in Oswego and Wheaton.

Source:

http://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm