No doubt you’re already seething with the prospect that your soon to be ex could benefit from the fact that you were injured. However, that doesn’t mean that your settlement will be split down the middle. In New Jersey, the courts use what’s known as an “analytical approach” to determining if a divorcing spouse should receive any portion of a personal injury settlement.
Equitable Distribution of Personal Injury Awards
As part of your lawsuit, you claimed certain damages. For example, you lost income, and this was factored into the amount of money the insurance company gave to you. Meanwhile, you had significant out of pocket expenses for your medical bills. You paid them from a joint checking account. The portion of your award or settlement associated with these damages would be considered marital assets.
Since this part of the money you receive is marital assets, it would be subject to equitable distribution. Additionally, your wife or husband could have had his or her own cause of action. A loss of consortium claim may be filed by the non-injured spouse when there is evidence that the negligent acts affected the marital relationship.
So, what’s not generally subject to equitable distribution as far as personal injury awards? In short, damages that are personal to the injured spouse. For example, pain and suffering represent just one critical consideration. Additionally, loss of future earnings and the victim’s own loss of consortium claim are generally assessed to them alone.
In this published decision, the court stated that the “money received is the legal substitute for pain, suffering and the mental and physical disabilities incurred.” Later on, the court decision went on to say more about the personal nature of an injury claim as follows:
Nothing is more personal than the entirely subjective sensations of agonizing pain, mental anguish, embarrassment because of scarring or disfigurement, and outrage attending severe bodily injury. Mental injury, as well, has many of these characteristics. Equally personal are the effects of even mild or moderately severe injury. None of these, including the frustrations of diminution or loss of normal body functions or movements, can be sensed, or need they be borne, by anyone but the injured spouse.
The analytical approach, therefore, evaluates the reason for the damages award to determine what portion is solely related to the injured party’s claim and not subject to equitable distribution.
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The Law Offices of Anthony Carbone has decades of experience representing both injury victims and those going through a divorce. Have questions? Contact our office to see how we can assist you. There is no charge to meet with us.