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Can I Claim a Portion of my Spouse’s Personal Injury Recovery in a Divorce?

Posted on : July 27, 2017, By:  Hildebrand Law
Can I Claim a Portion of my Spouse's Personal Injury Recovery in a Divorce?

Can I Claim a Portion of my Spouse’s Personal Injury Recovery in a Divorce?

Couples going through a divorce divide the finances and property they have obtained during their marriage. Courts determine which assets are part of the marital property and separate property, and distribute them either equally (in a community property state) or equitably (in an equitable distribution state) between the divorcing spouses.

The assets or property owned by a spouse before marriage, including inheritances or gifts, received before they got married, remain their separate property. Depending on the state you live in and its property division laws, a personal injury recovery may be considered marital property and subject to division between the spouses.

When a Judge May Count a Personal Injury Recovery as Marital Property

In a personal injury case, the plaintiff is entitled to receive compensation for different types of damages. These may include lost wages, loss of earning capacity and the past and future medical expenses.  These types of injuries are known as economic damages.

The plaintiff may also be awarded noneconomic damages, which include loss of the ability to enjoy life, emotional distress and pain, and suffering. These injuries are considered personal as they reflect the individual’s suffering or pain they experienced as a result of the personal injury.

In most cases, noneconomic damages are considered indivisible as they are personal to a particular person. So in turn, the compensation for loss of the ability to enjoy life or pain and suffering may not be divided between the spouses going through a divorce. On the other hand, compensation for economic damages, such as medical expenses and lost wages, affect your income and finances, and the other spouse may be able to claim a portion of those losses.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
A Google User
20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
A Google User
21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
Google User
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14:58 04 Oct 17
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
A Google User
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16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
A Google User
22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
A Google User
A Google User
18:16 18 Sep 17
Kevin Park of Hildebrand Law was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
A Google User
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19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
A Google User
A Google User
17:44 23 Jun 16

Equitable Division Approach

Most states now follow an equitable division of property approach, though there are still differences in how each of the states treats a personal injury recovery during divorce proceedings. Some states may consider the entire recovery as marital property if the accident took place during the marriage. This means that payments for pain and suffering, lost wages, or loss of a leg or arm could be divided, but each award is treated differently and may or may not be included as marital property.

Can I Claim a Portion of my Spouse's Personal Injury Recovery in a Divorce?

Can I Claim a Portion of my Spouse’s Personal Injury Recovery in a Divorce?

Community Property Approach

If you live in a community property state, there is a chance that your injury award may be divided during the divorce settlement. The rule, discussed above will apply for economic damages will be considered as marital property and subject to equal division between the spouses. In contrast, noneconomic damages will not be divided, as they will be considered as separate property.

However, in some states, like California, if the accident happened during the marriage, the entire personal injury settlement may be treated as community property.

It can be difficult to understand the rules and regulations about personal injury settlements and division when a person is going through a divorce. Laws vary among the states, and it is advisable to work with a local divorce or personal injury lawyer Delray Beach FL trusts who have an in-depth understanding of the state laws where you live and who can provide competent legal guidance and guide you through your case.

If you have a question about divorce in Arizona, please call to speak to one of our experienced Scottsdale and Phoenix Arizona divorce attorneys at (480)947-4339.

Thanks to our friends and contributors from The Law Office of Eric H. Luckman, P.A. for their insight into personal injury practice.