Is a pain and suffering settlement separate property while married?

I will be receiving a lump sum pain and suffering settlement in a month or so. No lost wages or medical bills will be in it. Just pain and suffering. I am married and live in CA. Is my settlement separate property or community property?

Asked on April 16, 2017 under Family Law, California


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Typically, if a settlement is to compensate for injuries, pain and suffering, loss of enjoyment, or medical bills that do not have any impact on the marriage, the settlement is deemed to be separate property (and if there should be a divorce, solely awarded to the injured spouse). That having been said, some courts have held that a personal injury settlement is marital property when: there is a commingling assets (e.g. by accepting the settlement in 1 check and it is made payable to both parties); it is compensation for lost wages; or there are medical bills that have a financial impact on the marital estate. Finally, when there is a lower settlement due to low policy limits or a lack of funds from the party at-fault, a court can allocate a portion of the settlement to lost wages even if it is only for personal injury. At this point you may want to consult directly with an attorney; they can best advise you further.

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