Do I have to share my accident settlement with my spouse?
It’s complicated, and not just relationship-status-wise.
Generally in California, whether you’ll have to share your injury compensation with your spouse or not will depend on if your compensation counts as separate property or community property (aka part of the marriage’s “community estate”).
It’s a decent rule of thumb to consider any assets obtained during the marriage as community property, but many exceptions apply that only an experienced family law attorney will be able to identify.
Can my spouse claim my personal injury settlement in a divorce?
According to California Family Code 780, if an injured person is married when the accident happened, then compensation for a personal injury claim is usually considered community property. Even though it is categorized as “community property,” courts generally award the entire personal injury settlement to the injured spouse if it has not been commingled with other community property assets based on California Family Code 2603(b).
Courts can award the non-injured spouse a portion of the settlement (but no more than 50%) if it is in the “best interest of justice.” The court can look to factors such as whether a portion of the settlement was based on “loss of income,” as income earned during the marriage is considered community property. A consultation with an attorney would be necessary to review how the settlement was structured and analyze what portion a non-injured spouse could claim.
What does it mean if my accident settlement has been commingled with other assets?
It is possible in some cases that assets count both as separate and community property. This is more common in longer-lasting marriages, as it usually happens when one spouse commingles their separate property into the marriage’s community property.
For example, imagine an injured person who received a $100,000 personal injury settlement. They used $70,000 to cover medical bills and then used the remaining $30,000 to pay for renovations to their family home. Now that personal injury settlement has been commingled as those funds were used to enhance a joint asset. So when the injured person gets divorced, the Court may divide that home equally between the parties and the injured spouse may not be able to make a $30,000.00 reimbursement claim.
NOTE: Commingled property is not the same as community property, but it certainly complicates asset division. It is best to seek help from an expert attorney to properly determine whether a tracing can be done.
What is a Loss of Consortium claim for injury settlements?
Under California law, a "loss of consortium" claim is a legal action filed by a spouse or registered domestic partner of someone who has been severely injured in an accident, seeking compensation for the loss of companionship and support they experience as a result of their partner's injuries. It essentially claims that the injury has significantly damaged their marital relationship and quality of life together; this is considered a type of non-economic damage in a personal injury lawsuit.
Who can file a Loss of Consortium claim in California?
In California, only the non-injured spouse or registered domestic partner of an injured person can file a loss of consortium claim.
Other states have a wide variance in their jurisdiction which sometimes allows children to file Loss of Consortium claims due to losing care from their injured parent, but California does not currently permit this.
What is the deadline to file a Loss of Consortium claim in California?
In California, the standard statute of limitations (deadline) for a Loss of Consortium lawsuit to be filed is either:
Two years after the date of the accident
OR two years after the date that the injury was discovered
Some circumstances can shorten or extend the statute of limitations. It is best to seek guidance from an attorney as soon as possible to evaluate a potential Loss of Consortium claim and begin the legal process.
What counts as Loss of Consortium damages?
The Judicial Council of California outlines two types of losses that define Loss of Consortium:
The loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support; and
The loss of the enjoyment of sexual relations [or the ability to have children].
While loss of consortium can be experienced in many ways, some common examples are:
Lack of physical intimacy or sexual relations with the injured spouse
Injured spouse is unable to engage in activities that the couple used to enjoy together
Injured spouse cannot express care and affection as a result of post-injury anxiety, irritability, depression, or PTSD.
Injured spouse cannot perform household duties or services as a result of their injury.
How much money will a Loss of Consortium claim pay?
Loss of Consortium is considered a “non-economic” damage that is subjective and is not easily calculated. Therefore, loss of consortium damages often will pay more than “economic” damages that the injured spouse receives to compensate for their medical bills and lost wages, which are easier to calculate.
Typically, greater amounts will be awarded if the injured spouse needs more time to recover. In cases that involve permanent injuries, disability, or wrongful death, the court may estimate the life expectancy of the injured spouse
Does my Loss of Consortium claim have to be included in my spouse’s personal injury lawsuit?
Loss of Consortium claims are normally filed alongside the injured spouse’s personal injury lawsuit, but it is not mandatory to file a claim in tandem with an injury lawsuit. California typically considers Loss of Consortium claims separate from and independent of the injured spouse’s case.
This means that a non-injured spouse may sue for Loss of Consortium, even if the injured spouse has not sued for personal injury.
Note: If the injured spouse has sued and lost, or if they have agreed that the other party was not liable, then the non-injured spouse is not eligible to file a Loss of Consortium claim against that same party.
How do I prove Loss of Consortium claims?
To prove their eligibility for Loss of Consortium damages, the claimant will need to establish 4 elements for their case:
Valid marriage or registered domestic partnership: The claimant (non-injured spouse or partner) must have been legally married or had a valid registered domestic partnership with the injured person at the time of injury.
Wrongful injury: The injured person must have been injured due to the other party’s negligence, reckless conduct, intentional violence, defective product, or other wrongful act.
Extent of Loss of Consortium: The non-injured spouse must have suffered a loss that is consistent with California’s Loss of Consortium guidelines.
Proximate Cause: The non-injured spouse must establish that the loss of consortium was caused by the injury. Defendants often dispute their liability by arguing that the marriage was challenged by something other than the injury (such as infidelity).
Do I have to reveal personal information to file a Loss of Consortium claim?
Realistically, non-injured spouses do have to reveal very personal information about how the injured spouse’s behavior has changed, how the injured spouse’s ability to show affection or be intimate has been limited, and other ways that the marriage has been harmed by the injury. This can make proving Loss of Consortium claims very uncomfortable, particularly if the claim alleges a loss of intimate relations.
However, the vast majority of Loss of Consortium claims settle out of court without the need for the non-injured spouse to testify. Even if it becomes necessary to take a claim to court, the skilled attorneys of Win Nguyen Law know how to present damages to the jury and maximize the compensation of a case while minimizing the discomfort that claimants may face on the witness stand.
