Is my ex-wife entitled to a settlement made prior to our marriage?

Question:

Years ago I lost my lower legs and my right hand. The settlement damages were awarded to me for my loss. All of this happened before I was married, and now I’m divorced.

So is my ex-wife entitled to a settlement made prior to our marriage?

 

Answer:

Property (in the broad sense to include personal injury settlements) acquired prior to the marriage is considered “separate property” in most states. This means it is not automatically a part of the marital estate subject to division in a divorce.

Personal injury settlements acquired during the marriage, moreover, are generally considered “separate property” because they compensate the injured for a personal loss, as opposed to the marriage partnership for a partnership loss. However, there are (as in most laws) exceptions.

First, if the settlement is for lost earning capacity rather than a lost limb, then a divorce court may consider it the same as income you brought to the marriage, even if the income stream came from a settlement made prior to the marriage.

Second, if you comingled the settlement money with marital property (e.g., used some of it to remodel your marital home kitchen), divorce courts are loathe to and usually do not parse-out what you contributed – it is comingled, forever mixed with the marital property.

Third,  if the other spouse “needs” a share of the separate property because she has taken on a larger share of marital debt, cannot support herself, etc., then the divorce court may divide it. What the court will do in your case depends in large part on the facts unique to your case, such as what you did with the money and how you treated it during your marriage.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Texas. I can only give you general information in this answer. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in divorces do. Cordell & Cordell has offices in Dallas and Fort Worth, Texas.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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6 years 7 months ago
Settlement is separate property – if you protect itTexas is a community property state (from the Spanish tradition) instead of the English tradition, which refers to marital property. What happened to you before the marriage resulted in you receiving monetary compensation before you were married. Money you have before marriage is separate property (not community property). As a general rule, absent fraud, the divorce court can’t touch your separate property, but it can keep your separate property in mind when deciding on a just and right division of the community property. Texas law is settled that your wife gets you… Read more »
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