Person looking over divorce document

Is an Injury Settlement Considered to be a Marital Asset?

In a Florida divorce, unless the parties reach an independent agreement, the court will be tasked with dividing the marital assets. Only marital assets will be subject to division as separate assets will remain the property of the respective owner spouse. This is why it is critical to understand what will be considered a marital asset and what will be considered a separate asset. If you have received an injury settlement, it may be a significant asset and you may be wondering whether it will be considered a marital asset in a divorce and, thus, subject to division. It is a good question and one worth investigating.

Is an Injury Settlement Considered to be a Marital Asset?

Generally speaking, no, a personal injury settlement will not be considered a marital asset, but there are some exceptions to this general rule depending on things such as the nature of the settlement itself. There are circumstances where at least part of a personal injury settlement could be considered marital property. The judge in a dissolution of marriage case would have to look at the damages awarded in the injury settlement in order to determine what part of the settlement would be separate property of the either spouse and would be considered marital property.

To understand what part of an injury settlement may be considered a marital asset, it is instructive to take a look at the types of damages that may be included in such a settlement. There are economic damages such as medical expenses, the cost of future medical care, and past as well as future loss of income. There are also noneconomic damages such as pain and suffering and loss of enjoyment of life. Any payments made to cover lost wages during the marriage as well as those past medical expenses covered by marital funds would likely be considered to be marital property as they were earned during the marriage. The cost of future medical care and pain and suffering damages would likely be considered the separate property of the injured spouse.

There may also be part of the settlement that is the separate property of the non-injured spouse. After all, there are damages designed to compensate the non-injured spouse. Loss of consortium damages, for instance, would likely be considered the separate property of the non-injured spouse as they are intended to compensate the non-injured spouse for loss of companionship and loss of services due to the injuries incurred by the other spouse. A loss of consortium claim is, in fact, brought by the non-injured spouse.

The problem often arises, however, when a personal injury settlement is not itemized. This actually happens in the majority of personal injury claims. Because the settlement is not itemized, it would be nearly impossible for a judge in divorce court to determine what part of the settlement was intended to compensate the injured spouse versus the non-injured spouse, and it would be impossible for the judge to decipher what part of the settlement was designated to compensate for future medical care versus lost wages, etc. 

Florida Family Law Attorneys

Do you worry about what will happen to your assets during divorce? Talk to the trusted Florida family law attorneys at Bernal-Mora & Nickolaou for the questions to which you seek answers. Contact us today.

Andrew Nickolaou

Andrew Nickolaou, Esq., B.C.S., is a founding partner at Bernal-Mora & Nickolaou, P.A. He practices almost exclusively in divorce, marital and family law. Andrew also handles record expungements and sealings. If you have questions about this article, contact Andrew today by clicking here.