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division of property problem !!


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#1 KrystaDudich

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Posted 17 January 2013 - 12:41 PM

Let me start off with my story.

(I know its a lot but please read)

There I stood by the roadside shaking my head as Tom, my spouse, started to drive away. It was the third time in the last month that he had shown up drunk to drive me home from work. This time I just refused to get in the car with him. I have begged him many times before to get help with his drinking problem, but he fails to admit he even has one. At that moment, two things happened. First, I decided to file for a divorce immediately. Second, Tom darted into traffic right in front of a pizza delivery car which then swerved and hit me. I had been thrown more than 30 feet by the impact and suffered several broken bones and a permanent painful back injury. The delivery car had been driving 20 miles over the speed limit, and my suit had been settled for $2.5 million. This was two months ago. Now, in trying to get a divorce, Tom is claiming he deserves half the settlement. This is the only matter of contention in the entire proceeding. We live in a state where the judge can allocate personal injury awards as he or she sees fit.

Would someone please be able to tell me what legal rationales support my position that i deserve the entire amount?
If you were the judge how would you rule this?

Please and thank you xx

#2 FindLaw_Amir

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Posted 17 January 2013 - 01:07 PM

You may want to visit the Family Law Center: Divorce and read Divorce and Property as a good resource. Also, if you have not done so already, you may want to consult with a local Divorce Lawyer to advise you of your rights.
FindLaw's Legal Heads-Up! newsletter can provide you with the legal resources you need to make informed decisions when law touches aspects of your everyday life.

#3 Fallen

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Posted 17 January 2013 - 01:19 PM

It's not a lot, really, though it does contain extraneous/unnecessary detail, 'cause we don't need to know about his driving away, drinking problem and such, or gory details about the resulting accident for that matter.

Divorce 101: stop listening to the person you intend to divorce ... and hire a lawyer. :)

"We live in a state where the judge can allocate personal injury awards as he or she sees fit."

And your attorney would point out that even if Tom wants to go after the lost wages portion of this settlement (you don't say how much is future medical expenses, how much is lost wages, how much is compensatory/pain and suffering etc), he isn't entitled to because his reckless actions contributed to you being hit by a car in the first place.

Please get off the internet (except to scope out list of local attorneys ... the best you can find) and hire a good divorce lawyer (and best not be cheap about it).

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#4 pg1067

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Posted 17 January 2013 - 02:27 PM

Tom darted into traffic right in front of a pizza delivery car which then swerved and hit me. I had been thrown more than 30 feet by the impact and suffered several broken bones and a permanent painful back injury. The delivery car had been driving 20 miles over the speed limit, and my suit had been settled for $2.5 million. This was two months ago.


First, I'm going to guess that "this" refers to the settlement -- i.e., that the $2.5M settlement occurred two months ago and that the actual accident occurred much longer ago. Second, I'm going to assume that the settlement attributed little or none of the fault to your husband and that there is no court finding that your husband was at fault to any degree. I'm am assuming this because of the huge dollar amount and because you did not say otherwise despite your description of the incident suggesting that he certainly could have been partially at fault.


We live in a state where the judge can allocate personal injury awards as he or she sees fit.


No such state exists. Not sure why you didn't identify your state (since you seem to appreciate that the particular state matters), but the first question is whether the settlement is marital property, non-marital property, or part marital and part non-marital. Commonly, a personal injury settlement is marital property to the extent it covers medical expenses (which would typically be a marital expense) and lost wages (which are typically marital property). However, any portion of a settlement attributable to pain and suffering (or punitive damages, if applicable) would be non-marital property. One assumes that your settlement agreement specifies how the $2.5M is broken down (if it doesn't, and since your lawyer presumably knew you were getting a divorce, you may have a malpractice issue). Once it is determined how much of the money is marital property and how much is non-marital property (and assuming you still have most of it), the marital portion should go into the pot for division, and the non-marital portion should be off limits.


Would someone please be able to tell me what legal rationales support my position that i deserve the entire amount?


The entire amount? It's likely that there is no legal rationale for that result, but we obviously cannot know because you didn't identify your state.


If you were the judge how would you rule this?


Aside from not knowing your state, we don't have any other information that would be relevant.

I cannot conceive that someone with probably $1-1.5M at her disposal (after deductions for your attorney's contingent fee and medical expenses) wouldn't have retained a divorce lawyer and would, instead, be asking anonymous strangers on a message board to opine about this based on limited facts. If you want to provide some of the missing information, I'm happy to comment further. Otherwise, I suggest you discuss this with your attorney (or that you hire one if you don't already have one).

#5 pg1067

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Posted 17 January 2013 - 02:36 PM

And your attorney would point out that even if Tom wants to go after the lost wages portion of this settlement . . ., he isn't entitled to because his reckless actions contributed to you being hit by a car in the first place.


This is beyond absurd.

Of course he's entitled to go after anything he wants. If the intention of this statement that he isn't entitled to any portion of the settlement, it's just this sort of legally and factually baseless response that makes it a bad idea to rely on message boards. We don't know the poster's state. Therefore, even if your conclusions are correct, we don't know if that's legally relevant (to which I'm sure you'll respond that you can't imagine any state in which that would be the case, but that would only speak to your lack of imagination). We also don't know if your conclusion is accurate. I'll agree that he original post suggests that the poster's husband's actions contributed to the accident. However, the post contains no indication that the settlement was impacted in any way because of any contribution by the poster's husband or that there was any court finding to that effect. So you've got a conclusion that is based on the unknown laws of an unidentified state and based on facts and factual conclusions that you're simply making up.

#6 Fallen

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Posted 17 January 2013 - 03:53 PM

First off, you need to pay more careful attention to what I write if you want to pick it apart. I said her attorney WOULD make this argument in a fight ... :) I don't make comments guaranteeing that my presumptions or conclusions are "accurate" but I'm accurate in saying that any (competent) divorce attorney would argue this.

I didn't say the husband isn't entitled to go after it (as we know, husband's free to go after whatever the frickity frack he pleases). I said that a divorce judge can in particular decide that he's not entitled to any portion of the settlement that represents (past, not future/post-divorce) lost wages -- and we cannot know how much is involved, btw. I don't see a divorce court awarding the spouse that appears to be a key reason why she was injured a share of the pain and suffering dough, or at least not anywhere near what it would had the husband been uninvolved. I won't presume that the settlement had any significant amount comprised of medical expenses incurred while married (vs. future), but whatever that marital share is, he can expect a court to order that figure it back into the marital pot total before deciding what's an equitable split.

I won't presume that the settlement didn't take into account the husband's actions having a bearing on her ultimately being injured; anything is possible, but I don't see the defendant taking it all on the chin because it's driver was going 20 mph over a speed limit and swerved to avoid hitting hubby's car.

And of course there are conditions under which a court can say she's entitled to keep the entire thing ... even if they aren't well off otherwise. I can think of a number of scenarios under which a divorce court would say "sorry, he gets zippity" was an equitable decision in the scheme of things (and if she's someplace like NY, that would evidently happen by default).

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#7 prose7_2334

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Posted 17 January 2013 - 06:16 PM

THE GAME IS SOLD NOT TOLD. HELL OF A STORY THOUGH.




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