If I’m a victim of medical malpractice, when divorcingis myspouse entitled to half of my settlement?

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If I’m a victim of medical malpractice, when divorcingis myspouse entitled to half of my settlement?

The malpractice destroyed my tendons and caused tears. I am at the point of giving up my full-time job due to chronic pain and discomfort; also will be having surgery soon. These funds will be my only source of income for life.

Asked on August 17, 2011 Texas

Answers:

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

Answered 9 years ago | Contributor

Unless there is a settlement agreement or the like to the contrary, it has generally been held that a  personal injury settlement (i.e. a malpractice case) is to compensate for injuries, pain and suffering, loss of enjoyment, or medical bills that do not have any impact on the marital estate. Therefore, such a settlement is considered to be separate property and should be fully awarded to the injured person. 

That having been said, some courts have held that a personal injury settlement is marital property in the following situations:

  • if there has been a commingling assets by accepting the entire settlement in 1 check made payable to both parties;
  • if it is compensation for lost wages; and/or
  • if there are medical bills that have an impact on the marital estate; and
  • in cases where there is a lower settlement amount than what would have otherwise been paid out due to low policy limits or a lack of funds from the responsible party (a court may allocate a portion of the settlement to lost wages even when the settlement indicates that it is for personal injury only).

Since the exact law on this differs from state-to-state, you should consult directly with a TX divorce attorney.


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