blog home Divorce How Are Lawsuit Settlements Evaluated in Illinois Divorces?

How Are Lawsuit Settlements Evaluated in Illinois Divorces?

By Nottage and Ward on September 6, 2021

We all have recourse under the law if we are injured through someone else’s negligence or suffer unlawful conduct in the workplace. A person who has been hurt in an accident that was someone else’s fault may file a personal injury claim for compensation. A victim of wrongful termination, discrimination, or harassment in an employment situation may file an employment lawsuit in civil court.

If you have received or are expecting a settlement for such a claim, and divorce is on the horizon, you may be wondering what will happen to your settlement in the divorce? In Illinois, lawsuit settlements may be considered marital property and subject to property division between the spouses.

What Is Marital Property and How Is It Divided in Illinois?

Marital property includes all assets acquired during the marriage by either spouse, except property received by one spouse only as an inheritance or gift. Separate (non-marital) property includes assets:

  • Acquired before the marriage and kept separate from marital property
  • Excluded from marital property by a prenuptial or postnuptial agreement between the spouses
  • Received by one spouse during the marriage as a gift or inheritance

When a couple divorces in Illinois, the best way to divide marital assets is for the parties to reach an agreement out of court. If an agreement cannot be reached, the court will decide the matter on the basis of equitable distribution. This is not necessarily a 50/50 split, but rather a division of property based on what is fair to both spouses, as the family court judge sees it.

Are Personal Injury and Employment Lawsuit Settlements Always Marital Property?

Personal injury settlements are typically classified as marital property in Illinois if the incident that gave rise to the lawsuit and settlement occurred during the marriage. The same is true for employment lawsuits. If the injury occurred during the marriage, but you did not receive the settlement until after your divorce was final, the settlement would still be subject to equitable distribution. For the same reason, if the incident that gave rise to the lawsuit occurred before the marriage, but the settlement was received during the marriage, it would be considered separate property.

How Does Equitable Distribution of an Injury Settlement Work in Illinois?

If it is left up to the judge to decide how to divide your marital property, he or she will divide it on the basis of what is fair. If you suffered a serious injury that gave rise to a lawsuit and settlement, the court will consider your future medical needs and how the injury will affect your future earning potential. Depending on the circumstances, you may receive a larger portion of the settlement than your spouse in the divorce. If you were disabled in the accident that resulted in your settlement, you could be allocated a larger portion of all the marital assets – not just the settlement. Factors the court considers in dividing marital property include age, health, and employability.

Can Compensation for Pain and Suffering Be Divided Differently?

Portions of a settlement intended to cover economic losses (medical expenses, lost income) are usually considered marital property and divided between the spouses. But a settlement may include compensation for non-economic losses, such as pain and suffering, disability, and disfigurement. In equitable distribution, a family court judge may allocate this portion of the settlement to the spouse who was actually injured and suffered those losses.

Why You Need a Lawyer

Property division can be one of the most complicated and contentious aspects of a divorce. An experienced attorney who understands the process can protect your interests and work toward the most favorable outcome in your case. Nottage and Ward, LLP was founded in 1988. Our Chicago divorce lawyers have decades of experience practicing only family law. Call us at (312) 332-2915 if you are facing divorce and marital property division.

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