Are Spouses Entitled to Part of an Injury Settlement During a Divorce?

A personal injury lawsuit can be filed when a person was hurt because of another party's intentional or negligent conduct. The injured party may accept a settlement in exchange for discontinuing any further legal action.

Separate Property

During a divorce, spouses must divide their assets. Some assets are considered separate property, usually exempt from division. In most states, personal injury settlements are the receiving spouse's separate property and the other spouse is not entitled to a percentage upon divorce.

Commingling

A personal injury settlement may become a marital asset if it is commingled with other marital property. For example, if a personal injury settlement check is deposited into the spouse's joint checking account, it has been commingled with the other marital funds and will then be divided during a divorce proceeding.

Dividing Property

Separate property, like a personal injury settlement, may also be divided if there is no marital property and one spouse has significant separate assets, or if one spouse requires a larger divorce property award when she is unable to work because of a disability or other health condition. When property is divided, community property states like California and Nevada award half of the marital assets to each spouse. Other states divide property under "equitable distribution," in which courts examine several factors to determine the fairest division of assets.

References

• The Modern Woman's Divorce Guide: Separate Property Basics
• NOLO.com: Dividing Property and Debt During Divorce