If you and your spouse are thinking about ending your marriage, you probably realize that your marital property will need to be divided between the two of you in the process. Ideally, you and your spouse could negotiate an amicable agreement without the need for courtroom litigation. If you cannot do so, a judge will need to decide the matter for you.
In the state of Illinois, marital property must be divided between divorcing spouses equitably—which does not necessarily mean equally. For most marital assets and debts, equitable distribution is fairly straightforward. The marital home, for example, benefited each spouse equally, in most cases, and has a specific monetary value. Other assets are more complicated, however, such as the proceeds of a verdict or settlement to one of the spouses in a personal injury case.
Timing Is Important
The first step is determining whether a personal injury award should be divided is establishing that it is, in fact, marital property. Generally, this will be decided by when the cause of action—the injury-causing accident or event—occurred. Illinois law specifies that property acquired by either spouse during a marriage constitutes marital property with very limited exceptions. A civil lawsuit, including personal injury cases, may require unique consideration because such proceedings may take months or even years to complete, and even longer for the verdict or settlement to be paid.
Court rulings throughout Illinois have established that the incident that caused the lawsuit is the determining factor in whether the proceeds of the case are marital property, regardless of when the award was actually received. If, for example, a person was injured in a slip and fall accident before he or she got married, any award related to the injury would be considered non-marital, even if the victim received the money during the marriage.
Illinois case law has established the type of award and its intention may be taken into account in a divorce—assuming the award is a marital asset. In a case from the early 1990s, a divorce court was faced with a multimillion-dollar personal injury verdict that was considered marital property. The court found it equitable to give the injured spouse a disproportionately large portion of the award—$2.6 million of a $3.4 million verdict—to cover the medical treatment required for his permanent injuries.
Noneconomic damages, such as those for pain and suffering, may also be allocated unevenly in some situations. A number of cases in Illinois over the years have resulted in significantly unequal proportions because the verdict or settlements were intended to cover the victim’s pain and suffering. The courts determined that the uninjured spouse was not forced to endure the same pain and suffering. Thus, the injured spouse was entitled to keep a larger portion of the award. It is important to note that in at least one case, the court specifically refused to consider the pain and suffering portion of the award to be non-marital property. The court found the entire award to be marital property but decided the injured spouse should receive a greater share.
Get Help With Your Divorce
A divorce is a complex undertaking. If you considering a divorce but have a personal injury claim currently pending, your situation may be even more complicated. Contact an experienced Kane County divorce lawyer to get the guidance you need. Call 630-377-7770 for a free consultation at Bochte, Kuzniar & Navigato, P.C. today.