Personal Injury And Divorce: The History, Analysis And Evolution Of The Standard To Be Applied In Illinois

Todd R. Warren and Kenneth A. Hoffman

Divorce and personal injury, while separate and distinct areas of the law, share many common traits:

• They often come unexpectedly and without warning;
• They have direct consequences to each spouse;
• They usually find each spouse unprepared on how to deal with the fallout;
• The timing of one can often cause the other; and
• They almost invariably result in the hiring of attorneys.

Illinois Courts have long struggled in determining which area of the law takes priority when these two worlds intersect. Questions that commonly arise include:

• Are the proceeds of a claim an asset to be divided as property, or alternatively as a stream of income to be used to support the injured spouse?
• Are the proceeds of a claim subject to claims for maintenance and/or child support for the non-injured spouse and children

In order to understand these issues, it is incumbent upon the practitioner, as well as the parties to the divorce, to have a clear understanding of the current laws and case precedent which have shaped these decisions over time.

The first place to start is an understanding of the underlying statutes in divorce which define the relevant terms and set the parameters for these determinations by the courts.

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