In Florida, property that was earned during the marriage is, by default, marital property and will therefore be split most of the time 50/50 between the two parties.
Many settlements, however, aren’t to reflect money earned in the marriage but rather are to make up for lost earnings in the future. Florida divorce law says that earnings in the future or after the divorce is filed are not marital because they are post-divorce.
Take, for example, a person is gravely injured and doesn’t even receive a settlement, all he receives is a disability pension. That disability pension represents a substitute for all his future earnings, therefore, is not a marital asset. Mallard v. Mallard, 771 So. 2d 1138 (Fla. 2000).
Florida recognizes that most injury settlements are not purely for lost future wages. An injury settlement usually contains money to for things that would be considered marital such as to recoup medical expenses or past lost earnings. Therefore, the courts divide any settlement up into marital or non-marital earnings.
A Florida Supreme Court Case, Weisfeld v. Weisfeld, 545 So. 2d 1341 (Fla. 1989), outlined how to divide up the settlement into marital and non-marital portions:
“(a) the separate property of the injured spouse includes the noneconomic compensatory damages for pain, suffering, disability, and loss of ability to lead a normal life and the economic damages which occur subsequent to the termination of the marriage of the parties, including the amount of the award for loss of future wages and future medical expenses; (b) the separate property of the noninjured spouse includes loss of consortium; and (c) the marital property subject to distribution includes the amount of the award for lost wages or lost earning capacity during the marriage of the parties and medical expenses paid out of marital funds during the marriage. The marital property should also include those funds for which no allocation can be made.”
But, there is a big twist to this analysis. In almost any and every personal injury claim, the husband or wife can also sue the liable party for “loss of consortium”. This claim is essentially saying, “I used to enjoy my spouse’s company a lot more before he or she got hurt and I should be compensated for that loss.”
So, as a spouse you have two interests: 1) your spouse’s injury case and 2) your loss of consortium case. But, there’s a risk if you file and settle your loss of consortium case.
When there’s a personal injury and the injured person is getting divorced there are two people with cases against the liable party but the couple can’t sue the liable party together because they are already suing each other (in divorce court). In this fact pattern, the 2nd district of Florida (Tallahassee area) says that if the spouse’s consortium claim is separately settled, that spouse waives any interest in the injured spouse’s settlement. Valentine v. Van Sickle, 42 So. 3d 267 (Fla. 2d DCA 2010). Here in the 20th judicial district (Charlotte, Collier, Hendry and Lee Counties) we don’t have this rule…yet.
Injury cases take years to resolve and the rule of thumb is “the bigger the case, the longer it takes to settle.” You may not want to wait the 5 years it takes to settle a big injury case. You do not have to resolve the division of the injury case’s proceeds at the divorce. The injury case’s proceeds are a complete unknown until the injury case has settled or has gone to trial. The matter of the injury case’s proceeds can simply be reserved until the final award is determined.
If you or your spouse are getting divorced and have a pending personal injury case contact my office to understand all your options and ensure you don’t make any terrible errors as I outlined above.