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How Can Divorce Affect a Personal Injury Lawsuit?

— December 12, 2022

If you receive compensation for your injuries during the marriage or before the divorce is finalized, it can be legally divided between you and your spouse.

In the U.S., the average marriage length is 8.2 years, which means divorces are common. If you are in the process of getting a divorce and have an ongoing personal injury lawsuit, it can be a complex problem. That’s because divorce can affect your injury lawsuit. 

As a starting point, you need to figure out if your personal injury lawsuit settlement or compensation would be considered a community marital property that could get distributed between you and your spouse. Please continue reading to learn more about the effect of divorce on a personal injury lawsuit. 

When the Plaintiff is Getting Divorced 

In most cases, you will find it challenging to determine whether or not your ex-spouse can claim a proportion of your settlement, as several factors need to be considered, including prenuptial agreements. Suppose the assets used to pay for the treatment of your injuries were community property (marital assets). In that case, your spouse could have a share in the compensation you receive from the personal injury lawsuit.

If you receive compensation for your injuries during the marriage or before the divorce is finalized, it can be legally divided between you and your spouse. The typical compensation includes medical bills, vehicle or property damage, home accommodations, and loss of present or future earnings. 

When the Defendant is Getting Divorced 

Whenever a defendant faces a divorce amid a personal injury lawsuit, the plaintiff’s lawyers would try to ensure the divorce proceedings don’t affect the personal injury lawsuit, such as delaying the payment. The goal would be to keep matters related to the divorce an issue for the defendant and not let it influence the personal injury lawsuit. 

Equitable Division of Marital Assets in Georgia 

Most states, including Georgia, follow an equitable division rule for the fair distribution of marital assets. However, equity does not mean equal distribution of property between spouses. For example, if the personal injury settlement or debt is considered community property, the judge can decide how to divide it among the divorcing couple. 

In personal injury settlements, your ex-spouse can get a share of the compensation if the monetary damages resulting from the accident, such as medical bills, were initially paid off using martial property or resources. If your injuries resulted in a loss of income, it could also be considered lost marital property, which means your spouse deserves a share of your personal injury settlement. In some cases, compensation for potential medical expenses, future loss of income, and pain and suffering of the plaintiff can be considered personal or separate property that the ex-spouse cannot claim.

It is also possible that the spouses agree that a settlement is considered separate property in the divorce to make the matter uncontested. For example, suppose you and your spouse decide to keep these funds separate from your marital property, and you are the defendant in a personal injury case. In that case, your spouse may not share liability or be required to make any payments for your personal injury lawsuit. 

Should I Divorce or Make a Personal Injury Claim First?

While there is no statute of limitations for filing a divorce in Georgia, personal injury lawsuits have time limits. You must file a lawsuit within two years from the date you sustained injuries in an accident.

Black and white analog egg timer; image by Marcelo Leal, via
Image by Marcelo Leal, via

If you file a personal injury lawsuit after your divorce is finalized, but you sustained your injuries while you were married and they impacted your spouse, your spouse can be entitled to compensation. Although your ex-spouse cannot claim a share of your settlement money for your pain and suffering or future loss of income, they can still have a claim on financial problems, like lost wages, suffered during the marriage due to your injuries.  

Suppose you plan on waiting to pursue litigation against the opposing party till after your divorce is finalized. In that case, it can cause you to miss the deadline for personal injury lawsuits because contested divorce cases can take several months or years to complete. In most cases, delaying a personal injury lawsuit would be unwise because it would give you and your attorney less time to build a strong case so you can obtain maximum compensation.  

If you are caught in a concurrent divorce and a personal injury lawsuit and unsure how to handle both, it is best to consult a personal injury attorney. Personal injury lawyer T. Madden recommends hiring an attorney to take care of all legal matters surrounding your case to ensure your divorce does not impede your personal injury lawsuit. You can even choose to have the same attorney for a divorce and a personal injury lawsuit. 

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