Can my Spouse Who I am Divorcing Receive any of my Workers Compensation Settlement Money in Virginia?

Posted on Wednesday, May 17th, 2017 at 9:28 am    

This is a frequent question we get and our best piece of advice is to seek the advice of an attorney who specializes in Divorce Law in Virginia.

This is because the law in the area of domestic relations is one that is constantly changing and evolving and more likely than not, even the little bit of information we are providing here is likely to be outdated by the time you read this.

As of May of 2017, in Virginia, under VA Code Section 20-107.3 (H), the court may direct payment of a percentage of the marital share of any personal injury or workers’ compensation recovery of either party, whether such recovery is payable in a lump sum or over a period of time. However, the court shall only direct that payment be made as such recovery is payable, whether by settlement, jury award, court award, or otherwise. “Marital share” means that part of the total personal injury or workers’ compensation recovery attributable to lost wages or medical expenses to the extent not covered by health insurance accruing during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.

So this means there is a presumption that because a workers compensation settlement is primarily related to lost wages and medical expenses, it is marital property, and therefore subject to division; however, this is the hard part and the reason why you need a Divorce attorney to answer this question for you in Virginia:

There is another section of the law of Code Section 20-107.3, namely section E, and that section says that the amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:

  1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
  3. The duration of the marriage;
  4. The ages and physical and mental condition of the parties;
  5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivision A (1), (3) or (6) of § 20-91 or § 20-95;
  6. How and when specific items of such marital property were acquired;
  7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
  8. The liquid or nonliquid character of all marital property;
  9. The tax consequences to each party;
  10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
  11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

So although there is a presumption that it’s marital property, the Court is going to look at the totality of the circumstances to figure out if it should be divided or not.

To know which factors in your situation are going to tilt the decision one way or another, you need to speak with an attorney extremely knowledgeable in Virginia Family Law.

Joe Miller Esq. is President of Joe Miller Law and the Work Injury Center. He represents injured workers in both Virginia and North Carolina and has recovered millions of dollars for them, giving them the opportunity to move on to the next stage of their lives.

If you or a loved one were hurt on the job, please do not hesitate to fill out the online form or call us toll free at 888-667-8295.  It is a simple process to perform an initial evaluation of your claim and determine if we can help you. If not, we will do our best to send you to someone who can.