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Recent Posts in Personal Injury Settlements Category
| January 18, 2010 |
| My Wife caused a CAR ACCIDENT. Am I LIABLE too? |
| Posted By Thurman Arnold |
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Q. My Wife caused a car accident. We were underinsured. Am I liable if the wreck occurred before we separated? A. Personal injuries and property damages caused during marriage get a different treatment under the California Family Code.
FC Section 1000 sets up a preference for which funds, community or separate, are used to satisfy the debt. If the liability occurred while the married person was performing an activity for the benefit of the community, like going to work or to the food store, the liability is first applied to the community estate and if that is exhausted, the balance is applied to your wife's separate estate.
On the other hand, if she was going to see her lover, the liability is first applied to her separate estate and then the excess, if any, still due is applied to the community.
In either event, there is still a right of reimbursement from the tortfeasor spouse, but this right expires after 7 years.
A local case decided in the appellate courts in 1996, handled by one of my father's former law partners, dealt with dividing a $150,000 liability owing to the Palm Springs Tramway on account of monies embezzled by the Wife as a ticket taker over a number of years (embezzlement is both an intentional tort and a crime). She spent all the money for the benefit of the community, although her husband did not know of the source of the money at the time. Not surprisingly this led to divorce, and the ruling was that both spouses owed one-half of the $150,000 settlement, but only the wife owed the income taxes and the attorney fees for defending the criminal and civil cases. (Marriage of Bell). Husband had directly benefited from these ill-gotten gains, and he wasn't protected because he did not participate in the theft. |
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| January 06, 2010 |
| My Husband Is Receiving A PERSONAL INJURY SETTLEMENT. Am I Entitled To Any of It? |
| Posted By Thurman Arnold |
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Q. My Husband is receiving a large settlement for an auto accident he was in. If we divorce, am I entitled to 1/2 of the settlement?
A. Probably not, but maybe.
Personal injury awards in California are community property if the injury occurs before separation no matter when the settlement comes in. Family Code section 780. However, Family Code section 2603 states:
(a) "Community estate personal injury damages" as used in
this section means all money or other property received or to be received by a
person in satisfaction of a judgment for damages for the person's personal
injuries or pursuant to an agreement for the settlement or compromise of a
claim for the damages, if the cause of action for the damages arose during the
marriage but is not separate property as described in Section 781, unless the
money or other property has been commingled with other assets of the community
estate.
(b) Community estate personal injury damages shall be
assigned to the party who suffered the injuries unless the court, after taking
into account the economic condition and needs of each party, the time that has
elapsed since the recovery of the damages or the accrual of the cause of
action, and all other facts of the case, determines that the interests of
justice require another disposition. In such a case, the community estate
personal injury damages shall be assigned to the respective parties in such
proportions as the court determines to be just, except that at least one-half
of the damages shall be assigned to the party who suffered the
injuries.
Hence, the court has discretion to divide community personal injury damages by assigning it all to the injured party. As a practical matter, this is usually what does happen. Still, Family Code section 781 provides certain reimbursement rights to the community for payments made from the community.
Lesson: Don't avoid settling your case just because you think you should get 1/2 of what your spouse recovered. You might get something, but the expense outweighs the risks. Judges are inclined to award PI damages to the injured spouse.
By the way, if the other spouse (here, you) caused the injuries, a different outcome might result. Also, different rules can apply to worker's compensation recoveries.
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