Receiving an award for damages in a personal injury lawsuit is a long and difficult process, and the money you receive is usually needed to pay for your injuries. If you are going through a divorce when the settlement is reached, you might be having some major concerns that the award you and your personal injury attorney Atlanta GArelies on worked so hard for may end up being split with your soon to be ex-spouse. Unfortunately, there is no simple answer to the question of whether or not a personal injury award will be split in divorce proceedings.
Generally speaking, property and other assets accumulated during a marriage are considered “marital assets” and may be equitably divided among the parties of the divorce action. So, if a spouse in a divorce receives a large award in a personal injury settlement before the divorce is finalized, it could be seen as a marital asset and be eligible for division. Because of this, the absolute best way to protect a personal injury award from being divided is to make sure you finalize the divorce before settling the personal injury claim. This way, the award from the claim cannot possibly be a marital asset, as the marriage has been dissolved. However, doing this in practice can often be easier said than done as both personal injury and divorce cases can be tedious, expensive, and drawn out proceedings.
What type of award was granted will also be a major factor in if it will be eligible for division. If the award was granted for compensatory damages such as “pain and suffering”, which are clearly granted to a particular person for the hardships they endured, then your attorney may be able to defend the award from being divided. However, other types of compensatory damages such as lost wages or medical expenses directly impact marital property and may be divisible.
Even if the award is not divided, it may be factored into the calculations for alimony or child support. Some very determined ex-spouses may also file a modification on the divorce action in order to incorporate any personal injury awards that occurred post-divorce.
Divorce law and personal injury law vary on a state by state basis. Without an experienced personal injury or divorce attorney advising you, it can be easy to grow confused and frustrated. For specific information and guidance on how to protect your personal injury award from being divided with your spouse in a divorce, talk to your attorney to find what the best path will be for you.
Thanks to our friends and contributors from Andrew R. Lynch, P.C. for their insight into divorce and personal injury awards.