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Personal Injury Awards and Equalization

Today, we'll be explaining whether personal injury claims arising prior to separation are included in the equalization of net family property.

Accidents happen. Accidents happen even to separating spouses.

Hi, my name is Daphna Schwartz and I am a lawyer with the Feldstein Family Law Group. Today I’m going to talk to you about personal injury claims arising prior to separation and how they affect you.

When married spouses separate, they are entitled to divide their property, called an equalization. There are payments that are excluded from this division. Damages from personal injury claims for pain and suffering are excluded from equalization. I’ll explain.

It’s no secret that personal injury claims can take many years to resolve. Sometimes, claims are not settled and damages are not paid to the plaintiff until after spouses separate.

A claim for damages can include general damages and special damages.

General damages compensate the plaintiff for pain and suffering. Special damages compensate the plaintiff for monetary losses, such as loss of earnings for the period that he or she was unable to work.

Damages that the plaintiff spouse is entitled to exclude from equalization are awards received for pain and suffering. Damages received by the plaintiff spouse for loss of earnings for the period during the marriage are included in the equalization.

Why is this so?

Damages for lost earning accrued prior to separation are included because the income, if earned, would have been shared by the spouses during the marriage.

However, any award for future lost earnings post-separation is not included as property, and the spouses would not share these earnings.
So, if you are a plaintiff spouse in a personal injury claim that includes a claim for lost wages, this information must be disclosed to your spouse and will be subject to an equalization.

If you are aware that your spouse has commenced or received an award for a personal injury claim, you are entitled to request and receive information regarding the award of damages in order to determine what amount is included in equalization and what amount is not.

If you would like to learn more about damages for personal injuries, you can visit our website. If you need legal advice about your own situation, please call us at (905) 581-7222 for a consultation. Thanks for watching.

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