If I’m a victim of medical malpractice, when divorcingis myspouse entitled to half of my settlement?
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If I’m a victim of medical malpractice, when divorcingis myspouse entitled to half of my settlement?
The malpractice destroyed my tendons and caused tears. I am at the point of giving up my full-time job due to chronic pain and discomfort; also will be having surgery soon. These funds will be my only source of income for life.
Asked on August 17, 2011 Texas
Answers:
M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney
Answered 13 years ago | Contributor
Unless there is a settlement agreement or the like to the contrary, it has generally been held that a personal injury settlement (i.e. a malpractice case) is to compensate for injuries, pain and suffering, loss of enjoyment, or medical bills that do not have any impact on the marital estate. Therefore, such a settlement is considered to be separate property and should be fully awarded to the injured person.
That having been said, some courts have held that a personal injury settlement is marital property in the following situations:
- if there has been a commingling assets by accepting the entire settlement in 1 check made payable to both parties;
- if it is compensation for lost wages; and/or
- if there are medical bills that have an impact on the marital estate; and
- in cases where there is a lower settlement amount than what would have otherwise been paid out due to low policy limits or a lack of funds from the responsible party (a court may allocate a portion of the settlement to lost wages even when the settlement indicates that it is for personal injury only).
Since the exact law on this differs from state-to-state, you should consult directly with a TX divorce attorney.
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