Yes, in many cases, your spouse may be eligible for a share of your personal injury settlement, but whether they are, and how much, depends on the type of damages awarded. Whether your personal injury settlement is paid before or after your divorce is finalized may also play a role.
There may be considerable room for interpretation regarding which portion of your personal injury award should be considered community property subject to division and which is exclusively yours. You stand a better chance of keeping more of your money if your settlement is explicit about how much is awarded for each type of damage. If you’re in the middle of a divorce when your case is pending, or if the injury occurred while you were married, but the case resolved after one spouse filed for divorce, it’s important to let your personal injury lawyer know right away, so they can make sure that your settlement documents are properly worded. Our personal injury lawyers in Keene, NH and beyond are here to help.
[H2] When are personal injury settlements divided in a divorce?
New Hampshire is not a 50/50 community property state for divorce; rather, the court follows an equitable distribution method for dividing marital assets. There is a good chance that a family law judge will view a personal injury award as separate property of the injured spouse, as they were the one hurt. However, the other spouse may make a compelling argument contesting this assessment, claiming that the injured party’s lack of contribution to the household expenses negatively impacted them.
Settlement damages intended to replenish assets classified as marital property, such as a vehicle jointly purchased after marriage, or lost wages that could be considered community property (both contributing to the household expenses), may be divisible in a divorce. You and your spouse both suffered from the lack of income from the time you missed at work, so both would be entitled to a share of replacement wages.
Damages intended to cover other expenses, such as medical expenses, should not be considered marital assets, as this money is for the doctors and hospital, not part of the replenishment of your loss of assets. Many forms of non-economic damages, such as those awarded for pain and suffering, though, should be considered separate property, as your spouse did not suffer as you did.
However, your spouse may be entitled to their own loss of consortium claim, related to their loss of emotional and physical support following your injury. This is more likely if the injury occurred prior to divorce proceedings.
Should I divorce or file a personal injury claim first?
New Hampshire and many other jurisdictions set a three-year statute of limitations for filing a personal injury claim. But the statute of limitations can vary by state and in specific situations. If you miss that deadline, you essentially forfeit your right to sue. However, there is no deadline for filing for divorce.
Additionally, the longer you wait to file a personal injury claim, the weaker your case may be. Evidence could be destroyed or erased if it’s not protected by a court order (like security footage of the incident), and witness memories can fade. The sooner you file, the easier it is for your lawyer to track down and depose witnesses and place legal protections around physical evidence that’s key to your case.
Timing your divorce and your personal injury case
You may be able to avoid sharing your personal injury settlement, depending on the timing of your divorce and filing your case. Speak with both your personal injury attorney and divorce lawyer about your other legal matters. Waiting to file your personal injury suit until you finalize a divorce could jeopardize that claim.
The legal team at Shaheen & Gordon can help you properly manage your claim, timing it so that it is filed within the required statute of limitations, and developing the right strategy to ensure you keep the compensation you are entitled to. As a full-service firm in New England, we have additional experience in family law and other areas to help guide you through your personal injury case. Contact our firm today at (800) 451-1002 for a free consultation.
