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My Husband Is Receiving A PERSONAL INJURY SETTLEMENT. Am I Entitled To Any of It?


Q. My Husband is receiving a large settlement for an auto accident he was in. If we divorce, am I entitled to one-half of the settlement?

Allice - Rancho Cucamonga, CA

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.

Author: T.W. Arnold, III