The judge in a Florida divorce can only divide assets and liabilities that are considered marital. So, the question then becomes if a personal injury settlement or judgment is a marital asset? The answer to that question is generally no. However, there are circumstances where the personal injury settlement could be considered marital and subject to distribution. To arrive at that conclusion, the judge will need to look at the type of damages the injured spouse received as a part of the settlement.
In a personal injury case in Florida, the injured spouse may recover economic or non-economic damages. Economic damages include, for example, payment for past and future medical bills, as well as payment for past and future loss of income. Non-economic damages would include past and future pain and suffering, loss of enjoyment of life, disability, and disfigurement.
Separate non-marital property of the injured spouse
Payments for non-economic damages, including pain and suffering, loss of enjoyment of life, disability, disfigurement are considered the non-marital property of the injured spouse. Payments for future economic damages, including future medical bills and future loss of earnings or income, are also considered non-marital property of the injured spouse.
On the other hand, payments for lost wages during the marriage and past medical expenses that were paid for with marital funds are considered marital and subject to division in the divorce. Compensation for lost wages would be considered marital property because any income earned during the marriage would have been considered marital.
Separate non-marital property of the non-injured spouse
Loss of consortium damages would be considered the non-marital property of the non-injured spouse. This is because those damages are designed to compensate the non-injured spouse for loss of services and companionship with the injured spouse due to the injuries. In a personal injury case, a loss of consortium claim is actually brought by the non-injured spouse.
Damages have to be itemized
The divorce court can only determine if any of the payment would fall within the above referenced categories if the settlement was itemized. This means that the settlement would have to specify what portion of the settlement covered each category of damages. Most personal injury settlements are not itemized. In those cases, the entire award will be considered the non-marital property of the injured spouse. If the settlement is itemized, then the judge will go through the itemized award and include in property division any portion of the settlement that was for past medical bills or lost income, for example.
Please contact us if you have any questions about your divorce case and a possible personal injury settlement.