Personal Injury Awards and Equitable Distribution

I have written on equitable distribution before that certain assets are subject to equitable distribution in a divorce and some are not. In the case of a personal injury settlement or award, it depends on the type of damages that the injured party received. If the award was for pain, suffering and disability, then the award is not subject to equitable distribution. However, if part of the award is for lost wages and for medical expenses, then that part of the award is subject to equitable distribution. Therefore, it is very important to determine why a personal injury award was paid to the injured spouse.

In a lot of cases, the uninjured spouse brings a companion derivative or “per quod” claim for their loss of services or consortium due to their spouse’s injury. That element of the personal injury award is also not subject to equitable distribution, but should be entirely retained by the uninjured spouse that brought the claim. As a result, a judge in a divorce trial should make findings as to how much of the award is for (1) pain, suffering and disability; (2) for lost wages and medical expenses; and (3) the uninjured spouse’s per quod claim. After these findings are made, the award should be divided up accordingly.