Illinois Divorce Law...

Illinois Law - Personal Injury

Money received on account of personal injury to either party that compensates for wage loss during the marriage is marital property.

Money that compensates for strictly personal losses is separate property.

Money that compensates for wage loss after the marriage is separate property.

Cases:

DeRossett (1996) 219 Ill.Dec. 487, 173 Ill.2d 416, 671 N.E.2d 654 (The award from a worker's compensation claim, where the injury occurred during the marriage, was marital property subject to division. The amount of the workers' compensation award was decided after the divorce, but the court gave 30% of the $112,000 award to the wife nonetheless. The husband had developed severe carpal tunnel syndrome and had to retire. For that reason, the husband had argued that the workers' compensation award compensated him for post-divorce earnings, which would be his separate property. The court disagreed, because the Illinois statute says that all property acquired during the marriage is marital property, and the workers' compensation claim had been acquired during the marriage.)

Pace (1996) 215 Ill.Dec. 923, 278 Ill.App3d 932, 664 N.E.2d 320 (The husband's $2 million personal injury settlement was found to be marital property, and 25% was awarded to the wife. The husband argued that the court should allocate some of the $2 million to his pain and suffering, which would be separate property. The appeals court said that even if the trial court had done that, it was reasonable for the court to have awarded 25% of the $2 million to the wife. And so the appeals court did not decide whether in general personal injury settlements are partly allocable to separate-property pain and suffering, or whether personal injury settlements are entirely marital property. The parties had been married for 18 years, and of the three children born into the marriage two were emancipated and one was still a minor. As a result of a work accident, the husband underwent at least five operations and ceased employment in the same year as the separation. The wife who had earned minimum wage throughout the marriage, was currently unemployed and in fair health, having completed 1,1/2 years of college.)

Adan (1994) 200 Ill.Dec. 439, 263 Ill.App.3d 566, 635 N.E.2d 778 (The court found that, where an injury occurred after separation but before divorce, both the workers' compensation money and the personal injury money constituted marital property. However, the judge gave only about 12% to the wife. (In this case, this cash was the only significant marital asset.) This was because the marriage was of short duration and the husband was permanently injured. The judge may also have been influenced by the fact that there were no children, and by the fact that the injury occurred after the separation. The parties had been married for five years, and upon the divorce the husband was responsible for supporting a minor child from a previous marriage, while the wife was employed at a salary of $8,000 a year. From the workers' compensation claim, the wife received $30,000 out of $126,000. From the personal injury settlement, the wife received about $19,000 out of a total of $85,000 in cash plus an annuity that paid $1,200 a month for life (with a 10-year minimum). (These numbers are all after expenses and attorneys' fees.) The wife claimed that the annuity was worth $191,000, so that the combined cash and annuity were worth $85,000 + $191,000, or $276,000. The court awarded only about $19,000 of this claimed $276,000 to the wife. The court's total award to the wife was thus $30,000 + $19,000, or $49,000, out of $402,000. And so the court's award to the wife was only about 12% of the marital assets.)

Waggoner (1994) 634 N.E.2d 1198 (Husband injured his back. The part of his Workers' Compensation disability payment that was for personal losses was separate. The part that was for wages that would have been paid during the marriage was marital. The part for wages that would have been paid after the marriage was separate.)

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