If I’m not divorced yet, what are my rights to my wife’s personal injury settlement?

UPDATED: Sep 30, 2022

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If I’m not divorced yet, what are my rights to my wife’s personal injury settlement?

My wife was in a car accident and won’t tell me anything about her case. I had to get her lawyer’s phone number from her doctor. The attorney she hired won’t talk to me and last night she packed and left. The figure she said on her way out is $100,000. Can you help me get my share of the settlement?

Asked on February 3, 2016 under Family Law, California


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Until you are divorced (or there is a legal separation), your rights to your wife's personal injury settlement remain the same as if you were in a stable marriage. Accordingly, the law in the majority of states hold that if the settlement is to compensate for injuries (i.e. pain and suffering, loss of enjoyment or medical expenses), then it is considered to be separate property and therefore awarded in a divorce to the injured spouse. That having been said, some state courts have held that such a settlement is marital property if: there is a commingling of assets by accepting the entire settlement in one check that is made payable to both parties; it is compensation for lost wages; and/orit is for medical bills that have an impact on the marital estate. Further, if there is a lower settlement amount than what would have otherwise occurred due to low policy limits or due to the responsible party lacking funds, a judge may allocate a portion of the settlement to lost wages, even if the settlement states that it is for personal injury. At this point you need to consult directly with a local divorce attorney as to the specifics of your case.

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.

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