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

Get Legal Help Today

Compare Quotes From Top Companies and Save

secured lock Secured with SHA-256 Encryption

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 12 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.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

secured lock Secured with SHA-256 Encryption