Legal Question in Family Law in Illinois

Workers compensation settlements are marital property

The first question to be addressed is whether your prospective settlement is marital property. Section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) creates a rebuttable presumption that all property acquired after marriage is marital property. A party claiming that property is non-marital has the burden of proving its status by clear and convincing evidence, a very high standard.

With the exception of a single case, Illinois courts have consistently held that personal injury awards (including foreseeable prospective but unpaid awards) (and especially including worker�s compensation awards) are marital property, including claims for future pain, suffering, and loss of income, and a disability pension was held to constitute marital property even though it included elements of compensation for loss of income and physical impairment.

So, your settlement is probably marital property. This doesn�t end the issue.

By the terms of Section 503(d), in dividing marital property, the court is expressly directed to consider �the age, health, . . . employability, . . . and needs of each of the parties� together with the opportunity of a spouse to secure future income. This, of itself, authorizes the court to consider the disability of an injured spouse and award a larger portion of marital property, including proceeds of a cause of action to that spouse. Moreover, the factors expressed in section 503(d) are not the only factors that can be considered. Other factors may be considered if relevant. The pain and suffering and disability of an injured spouse would be relevant considerations.

This means that your award is marital property subject to division with your wife, but you may be awarded a greater share (or all) of it by convincing the court that you need it for future pain and suffering, disability, future lost wages and earning capacity, and future medical and hospital expenses. Since this is a proposed settlement, you don�t have a court to look to for decision; you must instead convince your wife. She should recognize the risk of future bills related to the injury, and the likelihood that the court would allow for it. In my view, she would not be awarded half the settlement, but only a split of the amount which compensates you for bills already paid and wages already lost during the marriage.

Re: workmans comp settlement

How the court decides to divide your property will depend on the current and future financial situation of you and your wife - this applies across the board for all marital property. Therefore, you need to argue your case to a judge to get what you believe you are entitled to.