Is My Spouse Entitled to My Workman's Compensation Benefits During a Divorce?

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Your spouse may receive part of your workmans' comp award in a divorce.
Your spouse may receive part of your workmans' comp award in a divorce. (Image: Goodshoot/Goodshoot/Getty Images)

The state in which you live determines whether or not your spouse receives part of your workers' compensation benefit. Even if the state law treats workers' compensation as separate property from the marriage, your spouse may still receive part of your workers' compensation if you owe child support.

Workmans' Compensation

Workers' compensation, or workmans' comp, is a state-mandated insurance program for employees who suffer job-related injuries or illness. State laws require employers to pay into an insurance fund to support workmans' comp claims. Job-related injuries or illnesses, whether caused by the employer, the worker himself or a coworker, fall under workmans' comp insurance. In exchange, the coworker gives up his right to sue his employer in court for damages for his injuries.

Workmans' Comp and Divorce

State laws vary when it comes to workmans' comp in divorce settlements. States that treat workmans' comp as wages consider it marital property during the marriage. Payments received before or after the marriage are individual property. States that treat workmans' comp as a personal injury award, break it down into component parts for lost wages allocated during the marriage and after the divorce. States that treat workmans' comp as disability pay consider it communal property belonging to you and your spouse. Compensation after marriage is separate property. Some states treat workmans' comp as an acquired right and distributable as marital property.

Child Support

In general, federal law prohibits garnishment of workmans’ comp benefits. However, there are exceptions such as in the case of child support. A court-issued order for child support entitles your spouse to part of your workmans' comp benefits. The amount of child support payments depends on the number of children you share with your spouse and the state formula for child support deductions.

Insight

Consult with an attorney about the state laws regarding workmans' comp in divorce settlements. Even if the state treats your workmans' comp award as separate property, you may have to pay child support as ordered by the court. However, you have the right to ratify your child support payments because of reduced income. In this case, you have to petition the court to reduce the child support payments until you begin earning a full salary when you return back to work.

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