When you enter into divorce negotiations with your former spouse, you have to lay out all of the assets you acquired over the course of your marriage. Even though you believe that certain assets are solely in your name, your spouse could likely lay claim to a portion of them. One asset you may have concerns about is a personal injury award you received during your marriage. Your spouse could claim a portion of this award in your divorce proceedings.
Are Personal Injury Awards Eligible for Division?
California operates under a community property standard for the marital division of assets. You and your spouse must divide all of your marital property equally upon divorce. Marital property, also known as community property, includes all of the property you and your spouse acquired during your marriage. Gifts and inheritances to one spouse are not a form of community property and are not subject to division.
However, personal injury settlements you receive may be eligible for community property division under certain circumstances. If you suffered the injury that you filed the lawsuit for during your marriage, you will have to divide your settlement with your spouse. If you suffered the injury during a separation or after you filed for divorce, you do not have to divide your award.
Judges have to use their own discretion when considering how to divide a personal injury settlement during a divorce. California courts have discussed personal injury settlement division in divorce extensively, and experts have concluded that these awards are an exception to the community property statute.
How Do You Divide Personal Injury Awards?
You may wonder how it is possible to divide personal injury settlements, since the funds are supposed to compensate you for specific damages. While your award is subject to division, judges do not have to divide the award equally between the two of you. Judges will use their own discretion to divide your settlement, analyzing the economic situations and the specific needs of you and your spouse.
Under California law, the judge in your divorce cannot award more than 50% of your personal injury award to your spouse. In some circumstances, the judge can give your spouse a small portion of your settlement and you can keep the rest. In many circumstances, you can retain the entirety of your award. This division depends on how your judge decides to divide your settlement.
How to Protect Your Personal Injury Settlement in a Divorce
Your spouse did not suffer from the damages you incurred in your accident – you were the one who experienced the injuries, after all. If you want to protect your personal injury settlement during a divorce proceeding, you can employ a few strategies to retain as much of your award as possible. First, seek advice from a divorce attorney and a personal injury lawyer and discuss the potential division of your award.
Next, make sure that you specify the damages in your personal injury settlement. Your attorney can help you file a request to specify the different award amounts in your settlement, so you do not have to enter into lengthy proceedings with your former spouse. Finally, keep your settlement funds in a different bank account to avoid mixing assets. Speak to an attorney before you make this decision.
Dividing your assets with your spouse in the wake of a divorce can be a challenge, especially if you have personal injury settlements on the line. By hiring an attorney, you can advocate for your right to retain as much as your award as possible to recover from your injuries. Contact a California divorce attorney as soon as possible to advocate for your needs at these negotiation discussions.