Can I claim a portion of my spouse's personal injury recovery in a divorce action?

December, 2010

By Bob Coleman

Coleman, Chambers, Rogers & Williams, LLP

Bob,
I'm currently separated from my spouse and in the middle of a divorce. My spouse just received a large settlement from a personal injury claim involving a car accident. Even though I was not involved in the accident, do I have a right to any of his recovery?

Yes, you may have a right to some of the recovery. How much largely depends on when your spouse receives the settlement, and the types of damages for which he or she is being compensated.

Generally, property accumulated during the marriage - other than gifts or inheritance -- is considered a marital asset and may be equitably divided among the spouses in a divorce action. The fact you are already separated should not matter, as the law states the date of the actual divorce decree - not separation - is the last date for the accrual of marital assets. So, as long as a jury verdict or settlement from a lawsuit is recovered before your divorce decree is final, it can be considered a joint asset. If it's after the divorce is final, then all the proceeds go to your spouse and it is considered part of his or her total assets.

However, not claiming the recovery is a joint asset may actually benefit you more depending on the circumstances. For example, if it's considered part of your spouse's total assets, you may be able to argue your spouse has the ability to make a lump-sum alimony payment. This may be a better option than claiming it's a joint asset and seeking your share of the recovery. The reason is that some of the damages for which your spouse was compensated may be considered "personal damages" and may not be divisible.


Why is that?

Damages in personal injury actions are awarded for different types of injuries. There are damages apportioned for monetary loss, medical expenses, lost wages, and other types of property loss, that are considered monetary. There are also damages awarded for things like pain and suffering, emotional distress and loss of consortium, that are considered "personal" as they compensate that particular individual for the pain or distress they experienced. Georgia law treats the damages differently when treating the recovery as a joint asset.

As a rule, compensatory damages are personal to a particular person, and are therefore not divisible. So portions of the settlement designated as "pain and suffering" or "loss of consortium" are not divisible among the spouses. This is the same rule that applies to gifts and inheritance - it's the spouse's "personal property" and not divisible. However, damages designated for lost wages or medical expenses may be divisible, as both spouses were affected by that loss of income or expenses. So if you claim the recovery is a joint asset, you can claim a portion of the damages designated for lost wages, medical expenses or other types of monetary loss, but you can not claim a portion of your spouse's damages designated for pain and suffering or emotional distress.

This is something your attorney needs to consider carefully whenever you're faced with personal injury proceeds in a divorce. Your attorney will probably need to see certain court or settlement papers to find out what type of damages were awarded, and how much money was apportioned under each category. If the damages are mostly monetary, you may be able to claim a significant portion of the recovery. However, if a large portion of the damages were designated for pain and suffering, emotional distress or other "personal damages," you may be stuck holding the shorter straw. In that case, it may be wiser to allow the entire recovery to be considered part of your spouse's total assets, which will factor into any awards for alimony.

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