What Assets Are Non-Marital?

 Posted on July 27, 2019 in Family Law

Division of marital assets, or marital property, is a big part of divorce. Illinois is an equitable property division state, which means that all marital property is divided fairly, though not necessarily equally. Income, real property, small business ownership or growth, stocks, and pensions are all examples of property that can be divided equitably between spouses if acquired during the marriage. However, a few types of property do not follow the normal procedure of equitable division. One of these types of property is money from a personal injury settlement or lawsuit.

When Did the Injury Occur?

Usually, all property acquired during an Illinois marriage is considered marital property. Lawsuit verdicts and even out of court settlements for personal injury cases can take multiple years to be awarded or agreed upon, respectively. As such, a settlement check may arrive during a marriage for an injury that occurred before the marriage began. In this case, the court would typically award all of the personal injury settlement money to the spouse who was injured because the money would not be considered marital property. If the accident did occur during the course of the marriage, whenever the verdict is reached or the settlement distributed, it could be considered marital property. This is not always the case, however.

Other types of civil settlements have been considered marital property even when the incident in question occurred before the course of the marriage, such as the Marriage of Rivera, 2016 IL App (1st) 160552, in which the court decided that a wrongful conviction settlement was considered marital property because the lawsuit occurred during the marriage. Yet, the forced coercion that leads to the wrongful conviction occurred before the marriage.

The Injured Spouse Typically Gets a Much Larger Share

It makes sense that the spouse who sustained the injury would receive a larger portion of the settlement or lawsuit award considering they are the one who underwent pain and suffering, debilitation, scarring of disfigurement, and emotional distress. In most cases, Illinois divorce courts give a disproportionately greater amount of personal injury compensation to the injured spouse even when the compensation is considered marital property. However, this may not always be the case.

For example, an Illinois court in the Marriage of Tammie E. Cramm and Kevin V. Cramm awarded a higher percentage of the marital property, including marital property from a medical malpractice award totaling over $640,000, to the non-injured spouse because the injured spouse had non-marital assets—much of it from an inheritance of land from a dead uncle—worth double that of the marital assets.

A Hinsdale Divorce Attorney Is Here to Help

Whether you are the injured or non-injured spouse, the skilled DuPage County asset division attorneys at the Law Office of Martoccio & Martoccio can help you reach a desirable outcome in your divorce. Call us today at 630-920-8855 to schedule a free consultation.

Sources:

https://courts.illinois.gov/R23_Orders/AppellateCourt/2013/4thDistrict/4130112_R23.pdf

https://courts.illinois.gov/Opinions/AppellateCourt/2016/1stDistrict/1160552.pdf