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Personal injury property: married to it?

I. Married to the Case

Philosophers may debate about what we may actually consider to be truly our “own.”  A qualified personal injury attorney can help settle the debate. Because personal injuries are so intimately associated with the time to recover, you can easily assume that any benefits or settlements from a personal injury should be regarded as very deeply, and personally your own inviolable property. So, what can happen when a couple divorces, and one partner gets money for an injury that occurred during marriage?

One couple had been married for well over 20 years. The husband had the misfortune to be involved in a very serious motorcycle accident…the disability to his right foot was eventually rated at 50% and permanent. In the same time period, the couple was experiencing difficulties in their marriage. They agreed to separate, and did so for a year. After a year, a divorce action was then filed by the husband. The wife responded by listing a claim to assets of her husband: including the husband’s personal injury settlement for the motorcycle accident, in the amount of $95,000.

II. Being Repugnant: Marital property and personal injury awards

In this case, the personal injury attorney had to deal with an issue about whether or not two conflicting North Carolina property settlement laws could be reconciled. When two different laws run into each other and conflict, attorneys may describe the conflict by saying the laws are “repugnant” to each other.

The trial court and the appeals court first insisted that the two relevant North Carolina laws were so very inconsistent, that they should be found repugnant to each other. Eventually, however, the Supreme Court disagreed. It ruled that the two different laws actually “govern entirely different situations and were enacted [by the Assembly] for entirely different purposes.” This meant that the personal injury attorney had to show that issues of equal rights pertaining to husbands’ and wives’ equitable distribution of marital property either did or did not apply to the unusual facts of this case. This was especially complicated because there was a legal separation involved.

The case eventually reached the North Carolina Supreme Court because these particular facts had never been decided in the state before. Because the couple had been legally separated when the settlement money was awarded, the husband and his personal injury attorney argued that it was the husband’s own personal property, not subject to any claims by the wife.

III.   He said, She said: They say…

On the face of it, it would appear that the wife and husband both had two different arguments on whether or not personal injury proceeds should or should not be included. The legal reality was somewhat different. The majority approach in America about personal injury proceeds is what’s called “mechanistic.” This majority approach, used in most states, simply assumes that any personal injury awards, acquired during the marriage, are entirely marital property. Instead, both the attorneys for the husband and wife actually agreed not to use this simple approach. This was probably a good tactic, and both sides recognized North Carolina had not adopted this mechanistic approach. Acknowledging this, the husband’s personal injury attorney opted to argue for what was more likely to be accepted by the Supreme Court…an analytic approach.

As the personal injury attorney pointed out, there are three aspects of this deeper, analytic approach. First are awards for pain and suffering, or disfigurement. Secondly, compensation for lost wages and medical and hospital expenses. The third element is compensation to the non-injured spouse (the wife in this case) for loss of services or loss of consortium. The crux of the analytic argument was that the husband’s personal injury attorney arguing that proceeds from the motorcycle accident were of the first type: property acquired “in exchange for separate property.” The wife pointed out that there had been distinction made in the award between these three analytic aspects.

IV.  Pay to Play

The analytic argument of the personal injury attorney was certainly well-received by the Supreme Court. The problem the Court had with accepting it entirely, however, was that there was not enough evidence to indicate what exactly the $95,000 was payment for. While the husband’s argument on appeal indicated that it was for separate issues of disfigurement and personal injury, including pain and suffering, this was not evidence that had been presented at the trial level. This made it almost impossible for the Supreme Court to accept the husband’s assessment of what the $95,000 was for. The wife’s argument, of course, had the same problem. That she simply claimed the $95,000 because it occurred during the time of their marriage was not persuasive to the Supreme Court either.

Her husband’s personal injury attorney also pointed to a long-settled prior court decision from 1921. In that case, it was the husband who was seeking to claim proceeds from his divorced wife’s personal injury. “We do not think that the husband can recover (damages) for “his wife’s physical and mental anguish… Which are matters purely personal to her, and for which she alone can recover.”

In order to achieve an equitable distribution, which is consistent with North Carolina’s equitable distribution law for divorcing couples, a personal injury attorney was given a second opportunity to show the intended target of the award. The Supreme Court vacated the lower court opinions and ordered a new trial. Notably, there was one additional obstacle, though. The burden of proof to establish why the award was given, was placed on the husband.


One common mistake to avoid, in picking the right personal injury attorney for your case, is the breadth of experience, as well as depth. An experienced personal injury attorney, such as in this case, is also aware of the other issues—such as divorce—that may arise as a result of an injury. Although every case is unique, the timeline in this case suggested the importance of personal injury to this couple’s personal life as well. For example, the motorcycle accident occurred in February. Less than a year later, the parties formally separated. One of the major stresses after personal injury is the legal aspect of recovery. Having a truly experienced personal injury attorney may not save a marriage…but it can help improve communication and understanding, so that a difficult situation after being hurt, doesn’t feel to be an impossible one.

If you, a family member or a loved one have been hurt by someone’s negligence—or have questions about insurance claims or need help related to divorce claims on settlements or injury awards, or claims involving related claims or your legal rights or hearings, please contact us.  You will speak with a personal injury attorney who can best answer your questions.  There is never a fee for this initial consultation.

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