If I’m not divorced yet, what are my rights to my wife’s personal injury settlement?

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If I’m not divorced yet, what are my rights to my wife’s personal injury settlement?

My wife was in a car accident and won’t tell me anything about her case. I had to get her lawyer’s phone number from her doctor. The attorney she hired won’t talk to me and last night she packed and left. The figure she said on her way out is $100,000. Can you help me get my share of the settlement?

Asked on February 3, 2016 under Family Law, California

Answers:

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

Answered 5 years ago | Contributor

Until you are divorced (or there is a legal separation), your rights to your wife's personal injury settlement remain the same as if you were in a stable marriage. Accordingly, the law in the majority of states hold that if the settlement is to compensate for injuries (i.e. pain and suffering, loss of enjoyment or medical expenses), then it is considered to be separate property and therefore awarded in a divorce to the injured spouse. That having been said, some state courts have held that such a settlement is marital property if: there is a commingling of assets by accepting the entire settlement in one check that is made payable to both parties; it is compensation for lost wages; and/orit is for medical bills that have an impact on the marital estate. Further, if there is a lower settlement amount than what would have otherwise occurred due to low policy limits or due to the responsible party lacking funds, a judge may allocate a portion of the settlement to lost wages, even if the settlement states that it is for personal injury. At this point you need to consult directly with a local divorce attorney as to the specifics of your case.


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