A Pending Divorce and a Personal Injury Claim

Posted in Personal Injury on January 27, 2020

Personal injury lawsuits and a divorce case – both of those are things that nobody ever wants to go through. However, there are times when someone is going through both a personal injury claim as well as a pending divorce at the same time. Individually, each of these can become incredibly confusing and frustrating. When they are both happening at the same time, there are several factors that need to be taken into consideration.

Division of property could become difficult

When it comes to divorce cases, Tennessee is considered an “equitable distribution” state. This means that any property considered “marital property” must be divided equitably. This does not always mean that it will be divided 50/50, but the division should be as fair as possible. Property that is considered “separate” does not have to be divided equitably between the two parties.

Marital property includes most assets that are gained during the course of a marriage. If you are going through a personal injury lawsuit, you need to be aware that any monetary proceeds stemming from the claim that you gain in a settlement will be considered marital property. This means that if your personal injury claim is finalized while you are still married, then the economic damages you recover will be divided equitably between you and your spouse.

There is an exception to this. If your personal injury claim and settlement involves non-economic damages such as pain and suffering, these damages will typically not be considered marital property. In these cases, only the person who was injured experiences the pain and suffering, not the other spouse.

There is also loss of consortium damages to consider. These damages are typically awarded to a non-injured spouse if the injured spells cannot fulfill their spousal rolls because of the injury. If an injured person is going through a divorce, there will likely be no need for consortium damages to their spouse.

While non-economic damages may initially be considered separate property, this will change if those damages become mixed with other marital assets. If this happens, they will likely be deemed marital property and subject to equitable distribution, just like economic damages. For example, if you used any of your pain and suffering awards to pay your mortgage or car payment, these damages have now become commingled marital property.

Other considerations that could affect your personal injury case

Personal injury cases often involve witness testimony on behalf of the injured plaintiff. In order to prove certain types of damages, particularly pain and suffering and lifestyle changes, a person’s partner will often testify on their behalf. However, emotions are often heated during the divorce process. If your soon-to-be ex-spouse is angry with you, they could provide testimony that makes it seems like you are lying about your case. They could cast doubt on the extent of your injuries or say you were exaggerating about symptoms to receive a higher settlement. An angry spouse can cast doubt on your credibility and make it very difficult to win your case.

If you think there is a chance your spouse may provide unfavorable testimony, you need to speak to your Nashville personal injury attorney immediately. Your personal injury lawyer will need to gather evidence to support your claim from various other places so as not to rely on testimony from your spouse in any way.