New York City Personal Injury Law Blog
Personal Injury Awards in Divorce Cases
The divorce rate among the general population is extremely high. In the United States, the current divorce statistics is estimated at 50 percent. The divorce rate for first marriage is 41 percent, while the rate for second marriages is 60 percent.
For third time marriages, the divorce rate is 73 percent. According to the Discovery Channel, the same channel that delivers to us Dangerous Catch and Gold Rush, the rate of divorce is slightly lower among couples who have children compared to childless couples. In the US, at least 66 percent of all divorced couples do not have children.
Divorce and personal injury can be two of the most devastating and challenging events that take place in a person’s life. According to research, the instance of divorce goes up when a spouse has suffered a personal injury. Needless to say, cases that involve divorce and personal injury can be complicated.
Sharing Personal Injury Awards in Divorce
It is a fact that practically every married couple owns assets and property. Some good examples are the family home, cash in the bank and furniture. When a couple divorces, it is usually necessary for all these things to be divided between the spouses through a property division.
This is true of personal injury awards as well. It may be required for you to share the damages you recovered in a personal injury suit with your soon-to-be ex, or you may get a share of your ex’s award. The divorce and property division laws in your state play a role in this.
The Basics of Property Division
As in the case of the house and vehicles, a personal injury award is either separate property, i.e. it is owned solely by the injured spouse, or it is marital or community property, i.e. each spouse has a right to get a share of the award. When it comes to personal injury awards, either the analytic or mechanical approach is typically used by the courts to figure out if one spouse is entitled to a share in the other’s personal injury award.
The Analytic Approach
In the analytic approach, focus is put on what the award was intended to replace – was it something both spouses lost or something personal to the injured spouse. As a general rule, if a personal injury award was compensation for the injured spouse’s personal well-being, it is the separate property of that spouse.
The Mechanical Approach
It is the state law’s definition of marital property and individual or separate property that defines the mechanical approach. Property owned by the spouse prior to marriage and property acquired by inheritance or gift during the marriage is separate property while marital property is property that the spouse acquired during marriage.
In many cases, personal injury awards are treated as marital property. It is a simple idea: a personal injury award must be marital property since it is not acquired by inheritance or gift, and it does not fit into an exception to the general rule that marital property is property that is acquired during marriage.
If you are going through a divorce and your spouse received a personal injury award as compensation during your marriage, you should contact a personal injury lawyer at Rosenberg, Minc, Falloff, & Wolff of RMFW Law at 212 697 9280. You can find out if you are entitled to a share in that award – the first meeting is on us.
Give us a call at this number, again it is: 212 697 9280. We know how to represent clients and build resolute cases. We are the best law firm in the city. We look forward to hearing from you.