In our practice, we handle both personal injury cases and divorce matters. Every now and then, these two areas of law collide when an injured client who receives a personal injury settlement winds up in a concurrent divorce matter. In this situation your lawyer needs to be wearing two hats.
Personal injury claims are [for the most part] peculiar to the injured client. In a personal injury settlement [for a married individual], there are several components payable for damages: pain & suffering; lost income; medical expenses; and loss of consortium. In a divorce action, the Court will seek to divide the parties’ property into marital [joint] property or non-marital [individual] property.
Pain & suffering damages are not martial property. The uninjured spouse cannot make a claim for equitable division for money stemming from the other spouse’s misery. An award which compensates for lost income and medical expenses is considered marital property for which the spouse can make an equitable claim. Debt and income are always subject to the grasp of the Court.
An award for loss of consortium, the grab-bag term for a spouse’s claim for loss of societal and marital relations with the injured spouse, is ofttimes an award given by a jury. It is considered non-marital property as well. If a party is going through a divorce and the injury occurs, chances are slim that a consortium claim will be recognized. Still, a consortium award belongs solely to the uninjured spouse.
A word of warning – in settling a claim, insurance companies usually requires both parties to sign a blanket Release for a single lump sum of money covering all of the aforementioned items of damages. Unless the specific items of damages are individually specified within the Release, the divorce Court can take hold of the entire settlement and divide it between the parties as it sees as equitable. What might be considered equitable to one Judge might not be seen the same way as another Judge. Attorneys regularly gloss over a blanket Release and permit the parties to sign. If marital strife is looming in the background, this might not be wise nor advisable.
Not to say that the law is full of traps, but the law is in fact full of traps. It is best to give a lawyer a holler when matters of divorce and personal injury claims cross paths with one another. We can help you.