Separating Personal Injury Claims In A Divorce
Table Of Content
People often wonder if an accident claim that one spouse receives is part of a divorce settlement. You may be surprised to find out how it works. Here’s an example of an accident that occurred and how the divorce proceedings were handled.
A driver was involved in an accident while he was traveling home from work. The other driver crosses the center of the line and hits his vehicle head on. The driver was not at fault for that accident, was taken to hospital and examined by the doctors on staff. During the time of the examination there were no noticeable pains for the person who was not at fault for the accident. However, after a week the person starts to notice pain and it’s quite painful preventing him from working his regular job, the medical expenses piles up abut he’s lucky that the health care system supplies the medical help he needs but it doesn’t cover the cost of medication.
Now there’s an issue with how personal injury cases are divided when it comes to family law settlements. Some spouses feel that everything should be divided equally but that’s often not the case. If a portion of the personal injury settlement does get divided it’s often just a small portion, the portion which is considered equal property. If a spouse has Vancouver personal injury ICBC claim and that needs to be settled, often the only portion of the claim which could be awarded to the other spouse is the portion of the claim which enables them to receive compensation for any lost wages that have occurred as a result of the accident. Often that portion is a small portion of the accident claim.
How A Personal Injury Can Impact A Marriage
He realizes he’s unable to do any household chores as a result of the accident, what was once simple tasks like mowing the lawn which he’s done regularly is now an issue.
This causes the wife to become argumentative, as she has to work her regular job and handle all the household chores as well as look after her husband. The sex life has also suffered as result of the accident, this has led to significant arguments between the couple, after about a year of this,
they get separated. Eventually they both decide that a divorce is necessary as the difference seem to be getting worse and they’re at point where they seem to be unable to maintain proper communications with one another even after marital counseling. They both hire different lawyer to handle their divorce. After you have started your divorce proceedings. You learn from the personal injury lawyer handling your accident case that he has received what he deems to be a fail settlement and ask you to come to his office and review the offer from the insurance company. the money involved in the settlement will help significantly with your current financial situation.
But you’re in the middle of a divorce and the personal injury lawyer working on your case informs you that your spouse will also need to sign off on the offer before a check can be issued. Your lawyer contacts your wife’s divorce lawyer and sees if it can be settled without any issues. They respond
saying they’ll think about it. When they get back to you with the answer, they want part of your Calgary personal injury settlement that your lawyer has negotiated for you as part of the divorce proceedings, they now tell you they won’t finalize the divorce unless a part of the settlement is included in the final negotiations. The tell you that this is a new issue and it was not part of the original settlement. You may think this is your injury and that it might not have anything to do with your wife, but personal injury claims have many aspects to it especially when it’s tied to a divorce proceeding.
Would Your Personal Injury Settlement Be A Part Of Common Marriage Assets?
The rule regarding personal injury settlements is that the payment is to help compensate you for your injuries, any pain and suffering you have had to deal with, loss wages, future and current medical expenses. This should not have an impact on the marital assets that are to be divided because
they are to compensate you for the losses you had to deal with. Although these are the rules to have the personal injury claim should be settled, although the lawyers handling the divorce are aware of the personal injury statues, they may not act accordingly. They will try to make the compensation you receive as part of the settlement.
Although that should be the case with you retaining all of the monies from the settlement, if you and your former spouse can’t come to an agreement that the personal injury settlement shouldn’t be part of the agreement, this will need to be settled in court and it will be up to the judicial system to determine which part of the settlement should count as marital property and which part should count as separate assets. Although most laws state that personal injury claims are to be considered separate property, except for the part which includes loss earnings however this can get complicated, because the lawyer can trace funds to see how much of it should be considered separate property and which are martial the employment portion, it can also get deeper if the money was invested from the personal injury claim. You would essentially need forensic accountants to trace which part of the funds are used for investments and if there was any capital appreciation form the investments, if
there was the increased assets will also need to be considered as joint property.
Which Portion Of The Personal Injury Claim Can Be Divided
Although the compensation should go towards the injured party even in divorce settlements the lawyer can argue that because there was loss of enjoyment as a result of the injury to the spouse the other spouse should also be entitled to some compensations. They can argue that because they were married and the other spouse should share in the loss of enjoyment and the suffering which was the reason the marriage was broken apart. They may claim that a portion of the settlement proceeds were intended to help with the spousal loss of enjoyment as part of the settlement. Often unless a solid argument can be presented the majority of the times the courts will view the personal injury compensation as a separate asset and not a joint asset. There are times when the courts may not even award any portions of the settlement to the spouse if the settlement is low. If you (the person injured) didn’t purchase enough coverage or if the other party doesn’t have the assets to cover the personal injury claim, the amount awarded as compensation may be insignificant and if that’s the case the courts will most likely not divide up the compensation, even if your spouse may be entitled to the loss wages portion of the personal injury claim.
If the case needs to go to court your personal injury lawyer is often able to request the insurer to break down the amounts they have awarded in each category, how much monies they have allocated to pain and suffering, loss wages, future medical expenses and other costs associated with the injury. This will be helpful in the separation claims, but if a breakdown of the assets cannot be obtained, the compensation will be argued in the courts to determine how much of it is paid for lost wages and which portion of the settlement is used for pain and suffering. The courts will then base their decision on how the injury occurred, the expenses associated with the treatments and the lost wages, that the person received as compensation, all this will be used to determine the portion of loss wages in the personal injury claim.
Concluding How Personal Injury Settlements Should Be Assigned In A Divorce
The courts will need to understand which portion of the compensation was for injuries and other expenses and which portion of the compensation awarded was for other issues, but what they are mainly looking for is how to determine the amount to be used for lost wages. There are many factors they would need to address to come to this point when the insurer isn’t able to or will not break down the awards for the family law courts. In most cases the spouse will not be awarded half of the entire compensation, they will be entitled to a portion of the amount that is determined to be set aside for lost wages. In most personal injury cases the loss wages is often just a small portion of the injury claims. They make up a far less amount than the amount paid out for pain and suffering, which is often the bulk of the compensation claim. Any amounts that are given as lost of wages in the compensation claim should be detailed in the insurance settlement as this will greatly help reduce the time it takes to negotiation a settlement as that is the only portion of the claim the spouse is entitled to.
In order to get properly compensated for your injury claim and to have fair split of assets it’s important that you speak with a personal injury lawyer who understands the portions that should be split in the personal injury claims. Although these types of cases are often not part of most divorce settlements you will also need to be prepared if this does occur. The courts will work to make sure each side receives the assets they are
given fairly. Make sure you speak with an experienced personal injury law team in Surrey if you have to deal with the compensation amounts and how they should be divided up, in some cases if you are not properly represented you can expect the amount you are to give in the divorce settlement to be far less than the amount the other lawyers want you to give. Only with the right understanding of the law which portions of the personal injury claim will you be entitled to getting fair compensation for your injury claims if your marriage falls apart.
We are one of Georgia’s largest family law firms. We are experienced in all areas of family law representation including but not limited to divorce, child custody visitation, child support, alimony and spousal payments, division of property, divorce agreement modifications. We serve clients across Georgia.
The goal of our law firm is to provide our clients with top notch legal representation and offer advice and strategies to assist our clients in getting the outcomes they’re looking for. We pride ourselves on providing our clients with the highest level of legal services.
At our law firm we recognize that every family situation is different this is why we tailor our services to fit the outcome of each of our clients. We are experienced in all areas of family law; our first goal is to have you settle the any legal disputes including divorce collaboratively. If necessary we will vigorously defend you in court to help you get the best outcome possible for your case.
We pride ourselves on working with you our clients through every step of the divorce process and in providing you with honest and realistic expectations as well as sound legal advice throughout the divorce process.
If you’re dealing with a divorce or any family law related issue speak with a divorce attorney today for a reliable and honest assessment of your divorce case. Hiring a respectable law firm will have a substantial impact on your case. To learn more about our services visit divorce lawyer Atlanta, for a more comprehensive outline of the services we provide for our clients. We are a full range family / divorce law firm, with a primary focus on helping clients through divorces and all family law related issues.
If you want to learn more about how auto accidents impact personal injury cases visit http://www.vancouverlegal.ca/practice-areas/icbc-claims/ and also visit the wikipedia page on meditations to learn more about how personal injury cases and divorce cases can be settled through alternative resolutions http://en.wikipedia.org/wiki/Mediation, you’ll find that most cases can be settled before going to court, either through negotiations of mediation.