In October 2024, my colleague and family law attorney here at JGL, Lindsay Parvis and I were excited to be contacted by the Magazines and Supplements Editor for ALM/Law.com and The Legal Intelligencer to write a follow up piece based upon our previous JGL Podcast “When Family Law and Personal Injury Collide. You can listen to the podcast here.
This blog highlights a few of the key takeaways from the article we wrote from a personal injury perspective.
As personal injury and family law are both complicated areas, they become more so when they overlap. This article provides practical tips to help attorneys avoid potential hazards and pitfalls during representation.
Representation
During initial intake, personal injury attorneys should inquire with their clients for marital relationships, separating (or separated) couples, divorcing spouses and child custody issues. Identifying these relationships early can help to identify current or prior conflicts. Attorneys should also be aware of the potential physical and emotional strain to a marriage or custodial relationship when one or both spouses suffer a severe injury during representation and how this may impact which claims may be pursued, and how they may be pursued, if the case proceeds to litigation.
Timing
If the personal injury attorney has properly inquired into a client’s marital or custodial status, this information provides vast opportunities for strategically structuring settlement. A couple may be newly separated, separated for a period of time, or will be separated at some date in the future, and these are all factors that may affect how personal injury awards may be structured and which claims your client may or may not want to make. Personal injury attorneys can specify categories of settlements which may or may not be marital property.
Jurisdiction
Nearly all states have comparative negligence laws regarding liability, so when in accidents where one spouse is driving and the other is a passenger, comparative negligence does not present a problem as both spouses can make claims against any of the other drivers depending upon presumed liability.
However, in Maryland, Washington, D.C. and Virginia, the law of contributory negligence holds barring recovery for the spouse who was driving, even if he/she were only partially at fault. This now presents a problem for the passenger spouse, who has no liability or fault, who would only receive recovery from suing their own spouse. Various martial situations provide different results.
Damages
Personal injury attorneys classify damages as economic and noneconomic; however, depending on where your client is in the divorce process, categorizing damages may be tricky. In marital property states, all assets and debts acquired during the marriage are divided equally (or about equally). This also includes personal injury settlements. Equitable distribution states inventory assets and categorize as separate or marital property. Personal injury awards can be a mix of both.
For the attorneys, take note of your client’s damages. Awards for medical expenses and lost wages during the marriage are generally treated as marital property, especially when marital assets are used to pay for such expenses. Awards for noneconomic damages, such as pain and suffering, and loss of consortium are generally separate property as the victim incurs them individually. Personal injury attorneys can maximize the benefits of a personal injury award for their client just by categorizing the distribution of funds.
Takeaways
Most importantly, when a personal injury attorney finds themselves in a tricky situation, reach out to a trusted and respected family law attorney who can provide the guidance necessary when discussing claims and settlements.
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