In Indiana, assets acquired by either party before the marriage and brought into the marriage, acquired during the marriage and up to the date of filing, are considered marital property subject to the court’s division. Furthermore, the presumption for a just and equitable division is a 50/50 division, although the trial court has vast discretion to deviate for any fair reason.1 Where worker’s comp awards of personal injury settlements (particularly structured settlements) come into play, they generate a lot of confusion and acrimony between the parties. This blog generally surveys the legal landscape and covers what you may do with skilled counsel to address these issues in your divorce.
With worker comp awards, skilled counsel may show that the award is to compensate the injured person to make him or whole and compensate future losses relative to the inability to work in whole or part due to the injury. If the court accepts this argument, then only that portion of the award intended as compensation for past losses, that is, losses incurred during the marriage should be included in the marital estate. However, if you are on the other side of that argument, skilled legal counsel will know that a party who seeks to have that property (lost wages) not included (or at least not divided) bears the burden of proof of demonstrating that the statutory presumption should not apply. In a complex divorce trial, this may be impossible without an expert witness. Thus, this case may well turn on skilled lawyering. Are you willing to risk your award or if you are on the other side, leave money on the table for division with a strong argument to the contrary? You thus need competent and seasoned divorce counsel to properly handle such a case and maximize your potential award.2
Personal injury cases often have the spouse of the injured named in the lawsuit and any settlement may not clarify what sums are to compensate for what injuries during the marriage and future loss of income. This is a very complex area of law and litigation. Also, federal law may have other limitations binding upon the trial court by federal statutes. These are often large settlements and can mean tens of thousands to hundreds of thousands of dollars may be in play to be divided equally or unequally depending on trial strategy and skilled lawyering. In this case, it is still true that the party who seeks to have the property non included (or at least not divided), bears the burden of demonstrating that the statutory presumption of an equal division should not apply. How does a litigant do this you may be asking? Think of it this way, if your workers’ comp award or personal injury settlement is to compensate you for future loss of wages due to injury, it would or could be unfair to set this over to the other party because they still have their earning power for future earning upon divorce. Is that fair? It truly depends on the facts of every unique case and a solid trial theme for why the court should divide the property your way to make the division equitable.
This blog is written to survey some of the considerations of how a divorce court may treat and divide or deviate in a divorce involving a worker’s compensation claim and/or personal injury award. A significant part of winning or losing this dispute is by your counsel knowing the law and having a trial theme that makes sense and is logical as there is a lot of ambiguity in the law. Ambiguity is where skilled divorce attorneys spend their careers and maximize their client’s cases. If this is your case, know that Ciyou & Dixon P.C. handles complex divorce cases and domestic appeals throughout Indiana. This blog is written to provide general educational information only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- An equal division of marital of the marital estate, assuming it was liquid (in cash), would take all cash, minus debts and divide by two and equally distribute these respective sums to the parties.
- Beckley v. Beckley, 822 N.E.2d 158 (Ind.2005). See also, Leisure v. Leisure, 605 Ne.2d 755 (Ind.1993).