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How are personal injury damages split in property division?

California couples who are at the end of a marriage and getting a divorce will often have various levels of dispute about property division. Frequently, the law will have specific rules to address most issues. Some of the more common assets and properties that will result in acrimony and a back and forth as to whom will get what are a marital home, motor vehicles, bank accounts, retirement accounts and collectibles. There are, however, other properties that can lead to tension in a divorce.

If there were personal injury damages to one of the spouses and they have a pending case or received an award, this might be the foundation for a disagreement. According to the law, money or property that was received or will be received as part of a judgment or settlement because of personal injury suffered during the marriage will not be separate property, except in cases where that which was received was commingled in the community estate. In short, unless the money or property was mixed with jointly owned property, it will remain separate.

The party who was injured will receive these damages. The court does have the right to assess the couple's economic circumstances and their needs before deciding how it will be divided. It can also consider how long it has been since the damages were recovered or accrued as the case is pending. Other facts can be considered as well. If it is decided that the facts require a different method of disposition with the property, it can be awarded proportionally. A minimum of 50 percent of the damages will be awarded to the party who was injured.

During a divorce, people will want to receive what they consider to be a fair share of the marital property. When there was a previous personal injury case or one is ongoing as the divorce moves forward, it is essential to understand how any award will be handled in the context of property division.

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John T. Chamberlin, Attorney at Law
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