If I file for divorce and my wife receives an accident settlement while we are still married, amI entitled to any of it?
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If I file for divorce and my wife receives an accident settlement while we are still married, amI entitled to any of it?
Married 5 years; no children. She is planning on leaving and buying a new house in her name only when she gets the settlement. We now live in the house that I had when we got married. She has been off work for almost a year. I am adding her to my insurance because hers ran out. I pay all bills and have taken care of her while she recovers.
Asked on June 15, 2011 under Family Law, New York
Answers:
M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney
Answered 13 years ago | Contributor
The general rule is that unless there is a legal separation agreement in effect, your rights remain the same as if you were in a stable marriage. However, that having been said, if the settlement is to compensate for injuries, pain and suffering, loss of enjoyment, or medical bills that do not have any impact on the marital estate, the settlement is separate property and should be fully awarded to the injured person.
Note: Some state courts have held that a personal injury settlement is marital property in the following situations: commingling assets by accepting the entire settlement in one check made payable to both spouses or compensation for lost wages/medical bills that have an impact on the marital estate; etc.
Since NY has "equitable distribution" of property, this means the property division isn't necessarily equal; it's just needs to be fair. At this point you need to consult directly with an divorce attorney in your area.
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