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Does my ex have any right to my personal injury award?

Posted by Jess A. Lorona | Dec 20, 2016 | 0 Comments

personal injury law

Legal Standing of Ex-Spouse for Personal Injury Settlement in Divorce

Whether or not a spouse has legal standing for a claim against an ex-spouse's personal injury settlement hinges on certain material case facts of the actual claim as an experienced Phoenix divorce lawyer might explain. The date of the occurrence is one primary factor, but there may also be other legal factors that allow a former spouse to claim a portion of a personal injury settlement. The personal financial liability that one former spouse may have to the other can also matter, especially when there is a situation or agreement regarding child support or alimony that is delinquent. Potentially the most important factor in standing to claim an ex-spouse's personal injury settlement is the actual state in which the divorce was granted.

Community Property States

There are nine community property states in the U.S. that recognize all property acquired during a marriage as co-property of both spouses. The question would be what the court will allow based on the factors of the divorce. Time is very important, and it is entirely possible that a portion of a settlement for a personal injury that occurred while the couple was married could be claimed by the former spouse, even if the claim is paid after the divorce is finalized. This could also be a claim that a current spouse could defend as well, so the potential for a complicated legal issue is clearly present even in community property states. Former spouses may also have a claim if they had to stop working in order to serve as primary caregiver for the injured spouse while they were recovering from the injury. In addition, some injuries are permanent, which can create a problem concerning the amount a former spouse may collect. If the personal injury settlement is based on an injury that occurred prior to the marriage, and paid during or after the marriage, then the uninjured spouse may not have a basis for a claim without mitigating circumstances.

Equitable Property States

The remainder of states are equitable property states that dissolve divorces according to itemized analysis of each asset. There is no guarantee of equal portions being distributed between the divorcing individuals when assessments are made determining non-marital property. Depending on the approach taken by the state concerning marital assets, the pain and suffering component of a personal injury settlement can be determined by the state as belonging completely to the injured party, but the portion that is purposed as recovery for lost income could still be assessed as marital property. Complications can also arise with a personal injury claim when the injured plaintiff has negotiated with the insurance company to forfeit income replacement for an increased amount of pain and suffering damages, which happens regularly in personal injury settlement cases. Some equitable property states are actually unitary in marital property approach, meaning that the entire amount of a personal injury claim belongs completely to the injured person. However, workers compensation injury settlements are usually marital property because they are economic recovery damages.

Divorce Decree Agreements

In many ways, a final divorce decree is effectively a contract between the divorcing parties that should include all aspects of asset allocation before the divorce is finalized. Regardless of the state's approach to marital assets and liabilities, an enforceable contract between the two former spouses will control distribution of the personal injury settlement. This technical approach to a planned divorce is the best method of ensuring that an ex-spouse will receive an appropriate portion of the settlement based on all case factors. Injuries that are permanent can also be questionable claims, because often the ongoing income recovery damages will be for a period of time during which the two are not married, meaning the court will probably need to intervene with an additional ruling on the settlement intentions and allocations.

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Jess A. Lorona



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