Divorces include a division of marital property. At least part of a personal injury settlement will usually be included in the marital estate and divided between the ex-spouses.
But when you and your spouse separate, Florida leaves the division of your property up to you and your spouse. Florida does not recognize “legal separation.” In Florida, you are legally married or you are not.
Here is some information about what happens to a personal injury settlement during a separation.
Separation vs. Divorce
People choose separation over divorce for many reasons, including:
Spouses may also separate in the hope of reconciling one day.
Separation in Florida
Florida does not recognize any form of legal separation. If a couple lives separately in Florida, they remain technically married. They cannot remarry, and a court will not divide the couple’s property.
However, a spouse can petition a court for a child custody order, child support order, and separate maintenance order without filing for divorce. This allows Florida residents to have a separation that approximates a divorce without ending the marriage.
Divorce in Florida
Divorce provides many benefits not provided by separation. A divorce decree resolves four main issues:
- Child custody
- Child support
- Property division
- Spousal support
A divorce also terminates the marriage so both spouses can remarry.
The difference between separation and divorce is the division of property. Florida law leaves the division of property during a separation to the spouses. During a divorce, a judge makes an equitable division of the property.
Personal Injury Settlements
When you get injured in an accident due to the negligence of another party, you can pursue a claim to cover your economic and non-economic losses.
Your economic losses include your medical costs and lost income. Your non-economic losses include compensation for the diminishment in your quality of life, such as pain, mental suffering, and inability to participate in activities.
For example, suppose that you suffer a brain injury in a car crash. You will have medical expenses for treatment and therapy. You will also miss work while you recover from your injuries. You may even need to change jobs if your injury prevents you from performing your job duties.
You will also have non-economic losses. You will have pain and sleep loss. You might experience depression, anxiety, and post-traumatic stress disorder. Your brain injury might block you from the activities you enjoy, like exercising or playing with your kids.
Getting a Personal Injury Settlement During a Separation
Since you remain married during separation in Florida, you do not need to share your personal injury settlement with your spouse. Arguably, you do not even need to tell your spouse about the settlement.
In effect, you can spend the settlement any way that you want. However, you should keep a few issues in mind:
You Cannot Lie to Your Spouse About Your Settlement
Strictly speaking, you can lie to your spouse about anything. But if you lie about money and you or your spouse seeks a separate maintenance order, you need to come clean about your settlement. If you do not, you could pay heavy consequences.
A judge can consider several factors in deciding whether to award separate maintenance, including:
- Standard of living during the marriage
- Duration of the marriage
- Age and health of each party
- Financial resources of each party
- Earning capacity, education, and job skills of each party
- Contribution of each party to the marriage including services and support
- Responsibilities each party to their children
- Sources of income available to each party
To assess whether you or your spouse deserves separate maintenance, you will need to disclose your finances to your spouse and the court.
You might end up keeping your personal injury settlement. In many cases, as discussed later, you might keep part of your settlement and share the rest with your spouse. But you must disclose your settlement during discovery in the separate maintenance proceedings.
Lawyers use discovery to get information from the other party. During the separate maintenance proceedings, your spouse will ask about your assets and income. You must provide accurate and complete answers, or you could face sanctions from the court.
In most cases, the judge will order you to pay the lawyer fees incurred by your spouse to uncover your deception. A judge could also take your deception into account when awarding maintenance to your spouse.
You Can Keep Your Settlement Unless You Divorce
You have no obligation to share your settlement with your spouse while you are separated. As long as you are married, you have just as much right to spend the settlement as your spouse does. But you might not want to spend it all.
If you or your spouse files for divorce, at least part of your settlement could end up as a marital asset. If it does, the judge will divide it rather than award it to you. The divorce decree will order you to pay a share of your settlement to your spouse. If you spend it all, you might need to trade a piece of property with a value equal to your spouse’s share of the settlement.
The portion of the settlement that will probably end up as a marital asset will include:
- Lost income, since income earned during the marriage belongs to both of you
- Reimbursement for medical bills paid with marital assets
- Losses incurred by your spouse, such as loss of consortium or companionship
The portion that will belong to you will include:
- Reimbursement for medical bills paid with separate assets
- Diminished future earning capacity
- Pain and suffering
You incurred these losses personally and, as a result, you will probably keep the compensation for them.
Planning for Your Personal Injury Settlement
If you settle a personal injury claim while separated, you should discuss your settlement with a family law and your personal injury attorney. These settlements raise complex issues. How the settlement gets characterized by the insurer for the at-fault party could determine how much you get to keep.
Contact the Orlando Family and Divorce Law Firm of Conti Moore Law, PLLC for Help Today
Conti Moore Law, PLLC
815 N Magnolia Ave Suite 100
Orlando, FL 32803