Sometimes in divorce proceedings, the lawyers need to deal with cases in family law that involve damages or personal injury. The leading question in such cases that comes up is almost always whether any such damages are separate or community property. While the law on these prevalent issues is crystal clear in this regard, there still continue to be spouses and lawyers fighting over this issue in the court of law. Before we look at that aspect further, it is important to point out that personal injury cases are where a person has been awarded a compensation because they have suffered from some kind of violation whether physical or emotional.
Here is a lowdown on the subject:
Pre-Marriage Personal Injuries
If the personal injury had happened to the spouse before the marriage had taken place, then there is no doubt that the damages received for personal injury claim are solely and wholly that spouse’s property with no share of the other spouse in it.
Personal Injuries That Occur During The Marriage
There is another side of the coin in terms of personal injury cases. When personal injury cases happen after a person has been married, and subsequently their claims result in damages being paid to the spouse, the courts seem to adopt a position that is close to the one that was taken up in pre-marriage cases. California family law courts hold that more often than not, the damages coming in from a personal injury even after the person has been married are likely to be their separate property. This, however, has one exception, i.e. if the court determines that owing to the interest of justice the decision in a particular divorce case needs to be different.
It is in such cases that spouses battle it out to keep hold of the damages of personal injury or to be able to get their hands on the larger more substantial sum of the division.
What Is The Interest Of Justice Containing?
The primary elements included in the interest of justice are:
- The current economic conditions of both the spouses
- The economic and financial needs of each of the spouses at the current time
- The amount of time that has elapsed since the damages for the personal injury case was recovered
- All the other relevant facts of the case
There are cases where the courts may, on the basis of interest of justice, decide that the other spouse who hasn’t suffered the personal injury also deserves part of the damages being paid. The courts even in such situations can only be able to award at max half of the damages to the other spouse and no more.
Gerald A. Maggio is an experienced Orange County divorce attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.