Can I Get Part of a Worker's Compensation Settlement in a Divorce?

Full question:

My husband and I are divorcing, do I have claim to any of his workman's comp. settlement? During the time of his injury he was home and was paid his regular salary, I only had to endure the results of his bad moods, dispositions and at times his anger. I continued to care for him as always and handled any responsibilities/duties at our home that he was unable to do due to his condition.

• Category: Divorce
• Subcategory: Property Settlements
• Date: 04/07/2025
• State: Georgia

Answer:

Georgia is an equitable distribution state. The court will distribute the marital property of the parties between them as it deems equitable and just, after setting aside to each spouse that party's separate property. Alimony may be awarded to either spouse on either a permanent or temporary basis in accordance with that party's needs and the other party's ability to pay, although a party is not entitled to alimony if the court determines that the cause of the spouses separation was due to that party's adultery or desertion. The amount of alimony will be determined by the court after consideration of the following factors:

1. The standard of living established during the marriage;
2. The duration of the marriage;
3. The age, physical and emotional condition of both parties;
4. The financial resources of each party;
5. The time necessary for either party to acquire sufficient
education and training to find suitable employment;
6. The contribution of each spouse to the marriage;
7. The condition of the parties, including the separate estate,
earning capacity and fixed liabilities of each party;
8. Any other factor the court deems relevant and just.

Whether a workers' compensation award falls within gross income in order to calculate a property or support award depends upon a factual analysis of the elements of damage the award was intended to remedy. If the settlement was to make up for lost income, then it may be counted as income. A lump sum worker's compensation award may be made for "future income benefits" and may also contain a sum for the claimant's attorney if the State Board of Workers' Compensation approves the fee under OCGA § 34-9-108. If the settlemnt instad was to compensate for physical injury, rather than lost income, it may be treated as separate property of the injured spouse.

OCGA § 19-6-15 (b) (1) provides that "computation of child support shall be based upon gross income." OCGA § 19-6-15(b)(2) includes within gross income "100 percent of wage and salary income . . . and all other income, except need-based public assistance." This definition is broad in keeping with the public policy of requiring parents to provide support for their minor children

If the award is made for lost income, then it falls within the plain language of OCGA § 19-6-15 and must be included within gross income for determining a child support award.