November 22, 2009

Division of Personal Injury Settlements in Divorce

iStock_000009671081XSmall iStock_000005357115XSmallFew property claims cause as much contention as a claim to divide a personal injury settlement in a divorce. Oregon’s Court of Appeals  treats personal injury claims as a form of property. Timing matters in determining how a claim may be divided. A claim from a post separation injury should go to the hurt spouse. The court can divide a pre-separation claim that is unresolved at the time of separation. The court can also divide personal injury settlements that were received during the marriage. Settlements received during the marriage are marital assets and subject to the presumption that both spouses equally acquired the asset. A spouse may try to rebut the presumption that the non-injured spouse contributed to the acquisition of the claim.  Even if the injured spouse is successful in rebutting the presumption, the divorce court can still give part of the settlement to the non injured spouse if it is “just and proper” in all the circumstances. Personal injury claims may have multiple components, such as lost wages, pain and suffering, loss of spousal companionship, and medical payments. How the settlement is characterized may have an impact on the court’s division.  If your case involves a substantial personal injury claim, consult with an experienced family law lawyer about your options.