We were asked a question by a woman who wanted to know if she would be entitled to any part of a personal injury settlement that her husband was in the process of getting. She said that she and her husband were recently separated, but the injury happened during their marriage. She also said that she can't stand him, but she'd love to get part of this money.
In Illinois, property that is acquired during a marriage is considered marital property, unless it falls under a few specific exceptions. All marital property gets divided between the spouses during the divorce. A cause of action for a personal injury that occurred during the marriage is considered to be marital property according to Illinois law.
Even where the cause of action includes claims for pain and suffering and other loss that is specific to the injured spouse, Illinois still considers that to be a loss owned by the marriage and not the individual. This may seem to be an odd result, and not all states follow this. But the reasoning is that money from a personal injury cause of action reimburses the inured spouse for harm that affects the value of the assets of the marriage as a whole. The goal in dividing property in a divorce is to have the family supported according to each person’s needs. The family of the injured spouse also suffers a loss to the amount of possible marital assets.
Once you decide, though, that the personal injury cause of action is part of the marital assets, it does not necessarily mean that the amount of the award or settlement would be split equally. Many factors go into deciding who gets how much in a divorce. And here is where the judge may consider how much of the money may be personal to the injured spouse, and how much reflects a loss to the family. The percentage each gets may take these specifics into account, but the total starts out in the marital pot before it is divided.
There is one other issue in this particular case, though. In the question that was asked, the wife said that she and her husband were separated. Is not clear, though, whether they had been legally separated or were just living apart and only physically separated. Legal separation is actually the result of a formal court proceeding, much like a divorce, except the couple remains married. Once there is a judgment for legal separation, property and debt from each spouse remain separate. So generally, any property acquired after that point would not be split. If the two are just living apart and physically separated, property and debt of the two are unchanged, and continue to be part of the marriage. So even though the wife said they were married when the injury happened, it would be important to know whether they were legally separated before the injury happened, even if they were still married.
Lastly, the wife had asked about whether a settlement check is sometimes made out to the husband and wife together. While this can be the case, it should not matter as far as being legally entitled to a portion of the settlement. If it is marital property, then it is owned by the husband and wife, regardless of whose name is on the check.
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