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San Jose Family Attorney Discusses Division of Personal Injury Damages in Divorce

San Jose Family Attorney Discusses Division of Personal Injury Damages in Divorce

Personal injury awards are subject to special characterization and division rules in a divorce. Unlike most property, characterization of money or property received or to be received as personal injury damages depends on when the cause of action arose; it is not affected by when the actual proceeds are received. In other words, if the cause of action arose during the marriage, and prior to separation, the award for damages are considered community property. If the cause of action arose before marriage, or after separation, the award for damages are considered separate property. Additionally, personal injury damages received by one spouse pursuant to a personal injury claim against the other spouse, are always the separate property of the injured spouse, regardless of when the cause of action arose.

To the extent that the Court finds that a personal injury award is community property, it is subject to special division rules. Unlike most community property subject to equal division, community personal injury damages must be assigned to the injured party unless the court determines that the interest of justice require another disposition. In making this determination, the Court will take into account the following factors: (1) the economic condition and needs of each party, (2) the time that has elapsed since recovery of damages or accrual of the cause of action, (3) all other facts of the case. After consideration of the factors, if the Court determines that the personal injury award should not be entirely assigned to the other spouse, the non-injured is assigned a proportion which the Court determines to be just. The amount assigned to the non-injured spouse, however, may not exceed half the damages. Additionally, when more than half to he personal injury damages are awarded to the injured spouse, case law has determined that the other party is not entitled to an offsetting award of other community property to make the overall division of community property equal.

Circumstances in which community personal injury awards may not be awarded entirely to the injured spouse include those in which the community has incurred costs in caring for the injured party; or where commingling of the personal injury damages with other funds make tracing the source impossible.

If you or someone you know is going through a divorce, the team of attorneys at Sagaria Law, P.C. may be able to assist you. Our attorneys deal with all aspects of family law and can assist you through any stage of your divorce. We serve clients through the bay area and have offices Santa Clara, Alameda, and Monterey Counties. Contact our office today to set up a free consultation with one of our attorneys