Your Legal Questions Answered
My spouse and I live separate in the same house and have for almost 2 years now. In his words the marriage was over at the time we separated and the home is being shared until such time we can afford two separate homes, but he refuses to file for divorce. I was in an auto accident (no one else in the vehicle with me) 4 months ago and will be getting a settlement for pain and suffering, etc. It is from our shared insurance policy as the at fault person who hit me was uninsured. Does my estranged spouse have any rights to any part of the settlement and would this count as an asset if and when divorce is finally filed?
In a general sense, personal injury claims for injuries and the related financial losses experienced during the marriage are considered marital property. However, there are components of any personal injury claim which can be deemed personal and legally the separate property of the injured spouse. You will need customized language to treat and maintain the separate nature of the appropriately personal components of your claim. It could be 100% or it could be nothing but more than likely a substantial component of the proceeds can be Ordered as your separate property not subject to division in the divorce. However, you will need very clear language for your divorce agreements and Orders to keep that component separate and avoid sharing it with your spouse.
The foregoing information is general information only and should not be relied upon to take, or fail to take, legal action. No attorney-client relationship is formed by this information. __The only manner to obtain complete and adequate legal advice is to consult with an attorney.__
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