How to Protect Your Personal Injury Claim in a Divorce


Over 90% of Americans marry by age 50, but unfortunately, that doesn’t mean they stay married. It’s true that about half of marriages end in divorce. The outcomes for marriages that follow the first one are even worse.

In Ohio, 58% of marriages end in divorce, according to 2011 data from the Ohio Department of Health (their most recent data). However, according to the National Vital Statistics System, divorces in Ohio per 1,000 population have steadily declined since 1990 — but so has the number of marriages. Nationally, the number of people cohabiting continues to rise, with 18 million adults cohabiting in 2016 — a 29% increase from a decade prior.

Couples with children have a slightly lower rate of breakup. And some people remain in a marriage for financial reasons. An Ohio State University study found that people tend to see a steep increase in wealth after marriage. Couples report an average net worth of $43,000 after 10 years of marriage compared to single people who report $11,000. But following a divorce, both people suffer a significant decrease in wealth. Divorced men generally do better than divorced women. Men retain $8,500 in assets on average, while the average divorced woman is left with only $3,400.

If some of your assets happen to be from a personal injury settlement, how do you keep it in a divorce? Below, we’ll take a look at how division of property works in Ohio, how personal injury settlements are affected, and how details matter when negotiating a divorce settlement.

Division of Property in an Ohio Divorce May Include Part of a Personal Injury Settlement

A painful part of any divorce is splitting up assets. The couple must decide (or have the court decide for them) what is marital property and what is separate property. Each person keeps their separate property, but marital property is subject to “equitable division.” Marital property is generally property acquired during the marriage unless it falls under an exception. Separate property includes property each party brought into the marriage, gifts made to one of the spouses and inheritances.

According to Ohio Rev. Code Ann. 3105.171(A)(6)(a)(vi), separate property includes:

“Compensation to a spouse for the spouse’s personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets.”

If you are expecting a personal injury settlement and are soon to be divorced, don’t be surprised when your spouse’s attorney wants to claim part of your settlement for their client, saying that part of the settlement represents compensation for expenses paid from marital assets. At first, it’s hard to imagine that a personal injury suffered by only one party could have impact on the other to the extent they should get part of the settlement. But if a person is compensated for lost work due to injury, it makes sense that money can be considered marital property. Also common is for a spouse to receive damages for loss of consortium.

Example of a Personal Injury Claim in an Ohio Divorce

To put this into real-life perspective, let’s say Joe was driving home from work one day thinking about the concert he and his wife Sally planned to attend that evening. He started to drive through an intersection when the light turned green, and was hit broadside by a car that didn’t even slow down for the red light. Joe broke a couple bones, and suffered a concussion and contusions. He spent some time in the hospital and had to go to physical therapy. He missed weeks of work, and sometimes he thought he could not bear the pain. Joe was reclusive for months while he healed, which did not help his already unstable marriage. Joe and Sally hired a personal injury attorney to handle the claim, including Sally’s claim for loss of consortium.

After a year and a half, Joe and Sally decided there was no sense in trying to work on their marriage anymore and filed for divorce. Joe moved out. Shortly thereafter, Joe finished his medical treatments and his personal injury attorney came to him with a good settlement offer from the insurance company. Joe was shocked when his Ohio divorce lawyer informed him that it was likely Sally would make a claim for part of the settlement money.

It’s unlikely that the payments for medical treatment would be considered marital property, unless Sally’s lawyer could show there was an impact on the marital estate. However, a court would likely consider payment for days off work and any health insurance co-pay as marital property. A court would also likely consider payment for Sally’s loss of consortium to be Sally’s property.

The Burden is on the Spouse Claiming Separate Property

In the case of Modon v. Modon, 115 Ohio App. 3d 810, 686 N.E.2d 355 (1996), the court classified the full amount of the husband’s personal injury settlement as marital property. The court stated it could not determine what part of the proceeds was for lost wages, loss of consortium, or pain and suffering, and therefore declared it all marital property. The Ohio Court of Appeals upheld that classification ruling. The trial court’s inability to determine what part of the settlement was for lost wages and the wife’s loss of consortium, as opposed to compensation for the husband’s medical expenses, permanent injuries, and pain and suffering, defeated his claim of separate property.

The burden of showing that property is separate is on the party making the claim, the court stated. The court found the husband did not meet that burden.

Details Matter when Negotiating a Divorce Settlement

If you are expecting a personal injury settlement or award while you are in the process of getting a divorce, your lawyer will need to detail the type of compensation the amounts cover. If you are settling with an insurance company, your personal injury or divorce lawyer should be able to get a detailed, written categorization from the insurance company. Of course, as with any property distribution in a divorce, it’s always best if the spouses can agree. Barring that, make sure you consult with a good Ohio divorce lawyer who is experienced in dealing with personal injury settlements and awards.

If you need help with your personal injury case, contact the experienced attorneys of Dyer, Garofalo, Mann & Schultz. We offer free consultations and can get you the compensation you deserve.

Call Now ButtonContact a Lawyer Skip to content