PERSONAL INJURY AND DIVORCE AWARDS-DIVISION OF MARITAL PROPERTY by Flint Divorce Attorney Terry R. Bankert 810-235-1970
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www.attorneybankert.com
The question presented follows.
“It was a very serious accident, it happened in 2008. I stayed home from work for my 12 allotted weeks to care for him. I worked every day, 12 hrs a day to ensure we got could hold out till the settlement and not lose our house. We got the settlement and he decided he wants a divorce and refuses to give me any money even though he got enough that if he gave me 1/3 I would not have to work ever again. If I hadn't worked the way I did he would have never gotten that much. We have 2 children and he is verbally abusive to them and me. Am I entitled to anything?” The short answer is yes.
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www.goodmorningflint.blogspot.com
The presumption is the jurisdiction is Michigan and that the husband has to yet file for divorce. The wife should file for divorce or separate maintenance to stop dissipation of assets. The court will divide the assets as they exist on the date the judgment is entered or tried. A temporary order is used to preserve the assets. The wife is entitled to 50% of the joint assets and should be advised to file immediately
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www.terrybankert.blogspot.com
To reach an equitable division of marital property, a trial court should consider the duration of the marriage, the contribution of each party to the marital estate,each party’s station in life, each party’s earning ability, each party’s age, health and needs, fault or past misconduct, and any other equitable circumstance. McDougal, 451 Mich at 89; Sparks, 440 Mich at 158-160. [1]
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The determination of relevant factors will vary with the circumstances of each case, and no one factor should be given undue weight.[1]
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Generally, an award for pain and suffering is separate property, but it may be divisible as separate property on a proper showing of need or contribution. Lee v Lee, 191 Mich App 73, 477 NW2d 429 (1991) (accident settlement); see also Wilson v Wilson, 179 Mich App 519, 446 NW2d 496 (1989). However, a recipient could be ordered to pay spousal support based on his or her enhanced estate or income from investing an award for pain and suffering. Bywater v Bywater, 128 Mich App 396, 340 NW2d 102 (1983).[2]
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Generally, marital assets are subject to division between the parties but the parties’ separate assets may not be invaded. McNamara, 249 Mich App at 183. [1]
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Stoudemire v Stoudemire, 248 Mich App 325, 639 NW2d 274 (2001), upheld the trial court’s finding that injured plaintiff’s pain and suffering award was his separate property, and that the lost wage portion of his award was marital property to be divided 50-50. The court relied on expert testimony to calculate what portion of the award was truly for economic damages.[2]
SOURCES
[1]
Woodington v Shokouhi, 288 Mich App 352, 792 NW2d 63, published 5/4/10
[2]
Michigan Family Law Benchbook ch 8 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2006553550&chapter=08 (last updated 02/15/2013)
Sphere: Related Content
DID YOU KNOW;
www.attorneybankert.com
The question presented follows.
“It was a very serious accident, it happened in 2008. I stayed home from work for my 12 allotted weeks to care for him. I worked every day, 12 hrs a day to ensure we got could hold out till the settlement and not lose our house. We got the settlement and he decided he wants a divorce and refuses to give me any money even though he got enough that if he gave me 1/3 I would not have to work ever again. If I hadn't worked the way I did he would have never gotten that much. We have 2 children and he is verbally abusive to them and me. Am I entitled to anything?” The short answer is yes.
DID YOU KNOW;
www.goodmorningflint.blogspot.com
The presumption is the jurisdiction is Michigan and that the husband has to yet file for divorce. The wife should file for divorce or separate maintenance to stop dissipation of assets. The court will divide the assets as they exist on the date the judgment is entered or tried. A temporary order is used to preserve the assets. The wife is entitled to 50% of the joint assets and should be advised to file immediately
DID YOU KNOW;
www.terrybankert.blogspot.com
To reach an equitable division of marital property, a trial court should consider the duration of the marriage, the contribution of each party to the marital estate,each party’s station in life, each party’s earning ability, each party’s age, health and needs, fault or past misconduct, and any other equitable circumstance. McDougal, 451 Mich at 89; Sparks, 440 Mich at 158-160. [1]
DID YOU KNOW;
www.dumpmycreditors.wordpress.com
The determination of relevant factors will vary with the circumstances of each case, and no one factor should be given undue weight.[1]
DID YOU KNOW;
www.occupyflintlegal.wordpress.com
Generally, an award for pain and suffering is separate property, but it may be divisible as separate property on a proper showing of need or contribution. Lee v Lee, 191 Mich App 73, 477 NW2d 429 (1991) (accident settlement); see also Wilson v Wilson, 179 Mich App 519, 446 NW2d 496 (1989). However, a recipient could be ordered to pay spousal support based on his or her enhanced estate or income from investing an award for pain and suffering. Bywater v Bywater, 128 Mich App 396, 340 NW2d 102 (1983).[2]
DID YOU KNOW;
www.twitter.com/terrybankert
Generally, marital assets are subject to division between the parties but the parties’ separate assets may not be invaded. McNamara, 249 Mich App at 183. [1]
DID YOU KNOW;
www.facebook.com/attorneybankert
Stoudemire v Stoudemire, 248 Mich App 325, 639 NW2d 274 (2001), upheld the trial court’s finding that injured plaintiff’s pain and suffering award was his separate property, and that the lost wage portion of his award was marital property to be divided 50-50. The court relied on expert testimony to calculate what portion of the award was truly for economic damages.[2]
SOURCES
[1]
Woodington v Shokouhi, 288 Mich App 352, 792 NW2d 63, published 5/4/10
[2]
Michigan Family Law Benchbook ch 8 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2006553550&chapter=08 (last updated 02/15/2013)
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