A personal injury award may be considered marital property. In addition to a divorce action, a spouse may be involved in a personal injury matter. The injured spouse may receive a lump sum through settlement of his or her personal injury claim or through a jury verdict. The other spouse might be wondering if he or she is entitled to at least a portion of that lump sum in a divorce. Under Georgia divorce law, some portions of a personal injury award may be subject to equitable division in a divorce action.
Will my husband or wife get a piece of my personal injury settlement proceeds?
Under certain circumstances, your husband or wife may be entitled to at least a portion of your personal injury settlement proceeds. That is, the portion of your personal injury settlement proceeds considered to be marital property may be subject to equitable division.
Which portion of my personal injury settlement proceeds is marital property in a divorce in Ga?
Georgia courts use the “analytical approach” in determining whether a personal injury award is marital or separate property. “This approach requires courts to focus[ ] on the elements of damages the particular award was intended to remedy or, stated another way, the purpose of the award. States subscribing to this approach acknowledge that damage awards may be separated into three different components:
(1) compensation for the injured spouse for pain and suffering, disability, and disfigurement,
(2) compensation for the injured spouse for lost wages, lost earning capacity, and medical and hospital expenses, and
(3) compensation for the uninjured spouse for loss of consortium.
Compensation for the injured spouse’s pain and suffering is considered that spouse’s non-marital property. Similarly, compensation for ‘loss of consortium is not an asset of the marriage but is the estate of the spouse who suffered the loss of consortium.’ However, to the extent that the settlement amount represents compensation for medical expenses or lost wages during the marriage, the settlement may be considered an asset of the marriage.” Dixon v. Dixon, 834 S.E.2d 309 (Ga.App. 2019).
Simply put, property that is “very personal” to the injured spouse, such as pain and suffering, belongs to that injured spouse. Campbell v. Campbell, 255 Ga. 461 (1986).
Are disability insurance proceeds and worker’s compensation benefits considered marital property?
Yes, just like personal injury awards, disability insurance proceeds and worker’s compensation awards may be considered marital property subject to equitable division in a divorce in Georgia. The court would use the same analytical approach used in analyzing a personal injury award to determine which portion of the disability insurance proceeds or worker’s compensation award is marital property. Hardin v. Hardin, 801 S.E.2d 774 (Ga. 2017); Dees v. Dees, 259 Ga. 177 (1989).