Another unexpected consequence of the coronavirus – couples across the state who have to wait to untie the knot.‘A Waiting Game’: Coronavirus Shutdowns Cause Unprecedented Backlog In Divorce, Family Law Cases — CBS Los Angeles
In California, many types of property are divided equally in divorce. California is a community property state, meaning that with limited exceptions property acquired during marriage is classified as community property and subject to equal division in divorce. However, even when some types of property are classified as community property, they’re not divided equally. One of those types of community property that are NOT divided equally in divorce are “community estate personal injury damages.”
Personal Injury Damages Are Community Property
Family Code Section 780 states:
money and other property received or to be received by a married person in satisfaction of a judgment for damages for personal injuries, or pursuant to an agreement for the settlement or compromise of a claim for such damages, is community property if the cause of action for the damages arose during the marriage.Family Code 780
In light of Family Code 780, personal injury damages for a claim that arose during marriage are considered community property. For example, if a husband was injured in a car accident during marriage and filed a personal injury lawsuit, any subsequent settlement or judgment proceeds would be classified as community property.
Personal Injury Damages Exception To The Community Property Division Rule
While Family Code 780 classifies personal injury damages as community property, Family Code 2603(b) creates an exception to the 50/50 division rule for this form of community property. The statue reads:
(b) Community estate personal injury damages shall be assigned to the party who suffered the injuries…Family Code 2603(b)
Therefore, while personal injury damages for a claim that arose during marriage are community property, they are generally awarded to the injured spouse. The only instance in which the court can award some of the damages to the non-injured spouse are when the “interests of justice” require such after considering the needs and economic condition of the parties, time since recovery of the personal injury damages, and all other facts of the case. (See Family Code 2603(b)).
In ordering permanent spousal support, the family court must consider the extent to which each party’s earning capacity can maintain the standard of living established during marriage. Accordingly, the court must consider the following factors in its spousal support decision: (See Family Code 4320(a))
- The recipient’s marketable skills
- The job market for those skills
- The time and expenses required for the recipient to gain the appropriate education or training to cultivate marketable skills
- The need for retraining or education to gain more marketable skills or employment
- The extent to which the recipient’s present or future earning capacity is impaired by periods of unemployment during the marriage to permit the recipient to devote time to domestic duties.
Read the entire article on https://rosevilledivorce.com/spousal-support/earning-capacity/ – the website of family law attorney Jin Kim.
This is not the first time I have written a blog surrounded by a hundred or so screaming, sweaty children jumping on trampolines. I have been a grandmother for some years now, which has given me the absolute joy of being able to re-experience the development of children from birth onwards up close and personal. Being […]Everyday Trauma? Induced Psychological Splitting in Children of Divorce and Separation — Karen Woodall