Maybe you were hurt in a car accident, or you have a work-related injury, or a slip and fall, or some other personal injury claim or settlement and maybe you’re getting divorced. The question often arises, can I keep my personal injury settlement money if I’m getting divorced? The main question that we have to ask is, how is your personal injury settlement or recovery described? How is it characterized? What’s important to look at is, did the settlement include any component of past lost wages and that for the past time period, is that time period during your marriage?
As a general rule, your personal injury settlement is not considered a marital asset under Florida divorce law. Except there is one component of the settlement, that would be wages that you would have earned during your marriage that you get compensated for by way of the personal injury settlement. That part would and could be considered a marital asset, but the “lion’s share” of your personal injury settlement typically would not be considered a marital asset.
Now warning, if you’ve received the settlement, and you have co-mingled that money with your marital money, for example you receive a settlement check made to you for your injuries and you deposit into your joint bank account with your spouse, that is going to create a presumption that that settlement is now marital. The entire settlement is marital and then subject to division in your divorce. There are ways to deal with unequal or uneven distributions of marital assets, but the characterization of your personal injury settlement can lose its designation as separate non marital property by you co-mingling it or combining it with your marital assets; in particular, a joint marital account. Likewise, if you take the money from the settlement and you purchase an asset, for example a car or motorcycle, and you title that asset jointly with your spouse, that personal injury settlement will likely lose the characterization of being non marital in nature. If you’ve comingled, there is a concept that is difficult and can sometimes be impossible process of tracing the funds, where you can trace the funds that are in the joint account back to your personal injury settlement and perhaps strip them out of the marital asset consideration. It can be done, but it is a difficult and expensive process.
If you have a pending claim, that is you have an injury, someone else is responsible for it, you are pursuing collection of the money to compensate for the injuries, medical expenses, the loss of wages, those type of things, you have not settled or resolved the case, and have not received the money yet, then you are in good shape because the claim, not the money, but the claim itself is not marital. It’s personal to you. Your spouse may also have a claim under what’s called the loss of consortium claim, but your claim, in and of itself, remains yours and is separate non marital property.
So, if you have a pending injury claim and you’re considering or in the process of getting divorced, you may be better off not resolving that claim until the divorce is finalized. Either way, the personal injury claim itself is personal to you and not subject to division in a marital proceeding or a divorce.