Can injury and disability payments be split at divorce?

Payments that relate to one spouse’s injury or disability can be very difficult to divide at divorce, because it’s not clear if they should “belong” solely to the injured spouse or to the couple.

Two recent cases from Pennsylvania show the kinds of questions that can come up.

The first case involved a man who was injured while he was married, but didn’t settle his personal-injury lawsuit until after he and his wife had separated. The man argued that since he didn’t get any money until after the split, the settlement should belong to him alone.

But the Pennsylvania Supreme Court ruled that his right to receive compensation for his injury arose at the time he was hurt. Because he was still married at the time of the injury, his ex-wife could share in the lump-sum settlement payout, the court said.

The second case involved a heart surgeon who underwent surgery himself for carpal tunnel syndrome. The surgery left him unable to operate. He and his wife later divorced.

Years earlier, the husband had taken out a disability insurance policy. When he became disabled, he applied for benefits, and started receiving monthly disability checks. He had to renew his right to receive these checks each year by proving that he was still disabled.

The wife argued that she was entitled to share in the monthly checks because the husband’s disability – and thus his right to collect the disability payments – occurred during the marriage.

She argued that her situation was exactly like that of the wife in the first case, whose husband was injured during the marriage but didn’t receive compensation until after they had split up.

But not so fast, the Pennsylvania Superior Court said. This case was different, the court ruled, because the surgeon’s right to future disability payments depended on his proving each year that he was still disabled. Therefore, the surgeon’s right to future checks after the first year didn’t arise when he first became disabled during the marriage, but when he later proved that he was still disabled after the marriage.

The law varies from state to state and from case to case, but these two cases illustrate that these kinds of payments often create thorny issues in a divorce.

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