Will a Personal Injury Settlement Be Considered a Marital Asset?

For most people, divorce is a difficult experience, emotionally and financially. In addition, dissolving a marriage can be more complicated when the couple has assets that are somewhat difficult to divide fairly. A personal injury settlement is a good example of this. Though personal injury settlements are not always considered marital property, there are some circumstances when they might be divided as a marital asset in a divorce.

The Argument Against Including Personal Injury Settlements as Marital Assets

There are several reasons why personal injury settlements are not generally considered marital assets. In most cases, they are awarded with a very specific purpose: to cover the expenses that come from an undeserved injury.
  • The person who receives the settlement often has expensive medical bills to pay, sometimes a lifetime of medical care and bills.
  • Some of the settlement money may be designated for the victim’s pain and suffering, which the victim’s spouse does not suffer.
However, not all of a typical personal injury settlement is for injuries or pain. There is often an amount included for lost wages and similar expenses. Because wages are considered marital assets, it stands to reason that reimbursement for lost wages also may be so.
Exceptions to the Rule

As with all legal principles, there are exceptions to the rule which may affect any one case. We can look at times when courts have included personal injury settlements as marital assets to see how they could apply to an individual’s situation. Courts have been known to give an estranged spouse part of a personal injury settlement in cases where:
  • Funds are placed in a joint account with the intent of using them to pay general household expenses.
  • The settlement primarily reimburses lost wages for a period during which the uninjured spouse supported the household.
  • The personal injury settlement is the primary source of income for the household.
  • The settlement is intended to cover damage to marital property, such as a car or house.
In these cases, the settlement funds are being used as marital assets so the courts sometimes decide to treat it as such in the case of a divorce. This is yet another reason that it is important to consult a personal injury attorney. A settlement should be protected so it can be used for the benefit of the victim of the injury.
Protecting a Settlement

Even in a happy marriage, it is important to take steps to protect a settlement in the case of eventual divorce. For instance, a family lawyer Arizona relies on may recommend that you keep the settlement in a separate account from the joint account so it does not become communal property. It is also important to keep records of how the settlement money is spent. A person who can show that the money is earmarked for, and currently used for, specific needs resulting from the personal injury will stand a better chance of keeping it in the case of a divorce. A personal injury lawyer can advise you on how to set up your settlement so it is protected throughout your lifetime.

Personal injury cases are complex in every way. The companies and entities responsible for such an injury often have a team of lawyers on their side. It is important that you as an injured party also have legal assistance to effectively make your case. If a personal injury settlement is part of your or your estranged spouse’s assets, it is also important to talk to a lawyer immediately. The laws regarding these cases are simply too complex to handle alone.

Thanks to our friends and contributors from Hildebrand Law for their insight into protecting a personal injury settlement during a divorce.

Can a Doctor be Sued for Pain and Suffering?

Medical professionals are required by law to uphold an appropriate standard of care as outlined by the laws in the state in which they practice medicine. While the vast majority of doctors accomplish this goal, some fail to do so and a patient is seriously injured as a result. The following is an overview of how an injured patient can seek compensation from the negligent doctor who hurt them. If you have suffered an injury in this manner, contact a personal injury attorney today to learn what options you have under the law.
When Can a Doctor Be Sued?
Doctors treat many patients each week and not every mistake they make qualifies as medical malpractice. In order to receive compensation for your injuries through a personal injury lawsuit, you must prove your doctor was careless or negligent and seriously hurt you as a result. While this may seem like an easy task, it can be difficult in cases where several doctors worked together or a diagnosis was unclear. For these reasons, it is best to have apersonal injury lawyer Phoenix AZ trusts working with you to prove your injuries were due to medical malpractice.
Common Medical Mistakes That Lead to Lawsuits
While there are a variety of scenarios that may lead to a patient’s injury, some are more likely to occur than others. Some of the most typical mistakes in these cases are:
  • Missed diagnosis
  • Delayed diagnosis
  • Documentation errors
  • Failure to communicate orders to nursing staff
  • Errors made during surgical procedures
  • Medication mistakes
What Damages May I Win?
Every medical malpractice case is different, so it is difficult to know exactly what kinds of damages you could be awarded if you win your case. However, some of the most common damages in these types of lawsuits often include:
  • Unpaid medical bills
  • Lost wages
  • Future lost wages if you are permanently or temporarily disabled
  • Therapy costs
  • Pain and suffering
  • Mental anguish
What a Lawyer Can Do For You
If you are considering filing a lawsuit against your doctor for medical malpractice, it may benefit you greatly to have experienced legal representation. Your doctor will certainly have lawyers working to protect his interests, so you should protect your own. A few things a lawyer may do to prove your case are:
  • Hire investigators
  • Obtain your medical records
  • Speak with experts about your prognosis
  • Negotiate a settlement before trial
  • File court documents
  • Represent you during trial
If you or someone you care about has been hurt due to the negligence of a medical professional, contact a personal injury lawyer today to learn if you have a valid claim. After reviewing the evidence in your case and your injuries, your attorney will let you know if a lawsuit is possible. While a monetary settlement cannot restore your health, it can give you the resources to move ahead after your recovery has ended.
Thanks to our friends and contributors from Lorona Mead LLP for their insight into personal injury cases and pain and suffering.

Slip and Fall Homeowners Insurance

When looking for free legal advice online, it’s important to remember the laws on premises liability vary by state — even though each will hold a property owner responsible for the safety of their premises — so seeking the help of  an attorney is still very important. When certain criteria are met, property owners can be held liable for slip and fall accidents involving a person who comes to their property.

Let us look at how liability for slip and fall accidents is determined, and the type of accidents that may be covered by homeowner’s insurance. In addition we will consider the measures you may wish to take if you are a victim of such an accident.

Liability for Slip and Fall Accidents
Generally, a homeowner is responsible for any person visiting their property. Therefore, they should ensure that all areas that people are likely to visit are kept safe. A homeowner is considered liable for a slip and fall accident if:

  1. They are responsible for the hazardous condition.
  2. They are aware of the condition or should have been aware of the condition.
  3. They had sufficient time to rectify the condition.
Trespassers 
In some states, homeowners are held responsible for injuries sustained by trespassers. One common scenario where homeowners are held liable for slip and fall injuries by trespassers is where there are features in their premises that tend to attract children like a trampoline, playground, or pool. These are known as attractive nuisances. Homeowners with these types of structures should make every possible effort to prevent unauthorized access to these facilities.

Types of Slip and Fall Injuries Covered by Homeowners’ Insurance
Tripping or Slipping on Stairs
Many stair accidents are caused by the homeowner’s negligence; however, some may be unavoidable, such as when someone trips. The following factors can contribute to the risk of someone sustaining injuries on a flight of stairs:

  • Stairs without handrails or with poorly fixed handrails
  • Steps that are shallow or not up to building codes
  • Foreign substances or debris on the stairs
  • Poorly installed rugs or carpets on the stairs
  • Steps with varying heights
Slipping on the Floor, Rugs, or Carpets
A homeowner’s flooring, rugs, or carpets can make them liable for a slip and fall injury.

  • Freshly waxed or wet floors can be very slippery.
  • Rugs that do not have a good grip pad below them can also cause serious slipping accidents.
  • Carpets with holes or frayed edges are also a tripping menace.
A Broken Sidewalk
Homeowners are required to keep their internal walkways and paths reasonably maintained. When a person trips over a property owner’s broken sidewalk, they can hold the owner liable for the accident on the grounds of negligence.

Slipping on Snow or Ice
Slipping on ice on a person’s property can lead to serious injuries. Homeowners are charged with the responsibility of removing snow and ice to make their walking paths or sidewalks reasonably safe. However, in most cases, the jurors presiding over these cases tend to consider snow and ice a well known hazard for people living around such areas. This makes receiving damages for a slip and fall caused by snow or ice very difficult. Settlements for these cases are usually low because of the high probability that the homeowner will win.

Measures to Take After a Slip and Fall Accident
The moment you are involved in a personal injury at another person’s residence, document the scene if possible. Take photos and video of what caused the slip and fall accident. Also document your injuries, before and after treatment. The next step is to contact a slip and fall or personal injury lawyer. Be prepared to offer copies of your documentation about the accident and resulting injuries to the attorney. Most personal injury attorneys offer a free consult so do not delay in arranging an appointment.

Thanks to our friends and contributors from Hot Legal Tips for their insight into slip and fall cases.

Will My Children’s Trusts Be Affected By My Divorce

A living trust is used to avoid probate and guardianship, as a living trust attorney Las Vegas relies on can explain.  If children are the desired beneficiaries then provisions can be made to direct the assets to them upon your death.  Because these trusts are tightly integrated with your spouse, a divorce normally necessitates a change in your living trust and other estate planning documents.
When a person gets divorced, the beneficiaries of the living trust are not automatically changed to exclude the ex-spouse.  If you want your child to receive the inheritance instead of your ex-spouse, you must make an amendment to the living trust.  Otherwise, your ex-spouse is likely to receive the inheritance instead of your child.
The living trust normally appoints the ex-spouse as the successor trustee in the event of your death.  So while the trust may be amended to distribute the assets to the child, the ex-spouse may be the person controlling the child’s inherited money.  In some divorces, this may be the desire of the client, but normally you’re going to want to appoint a friend or family member to control your child’s finances if you’ve died.
Additionally, the living trust appoints the ex-spouse as the person who will have the authority to remove and appoint trustees for the child’s trust if you are unable to do so.  This provision should be identified and amended so the ex-spouse cannot manipulate the management of the child’s funds by removing your chosen successor trustee.
If you live in one of the nine community property states, you probably created a “joint” trust, which means the grantors, those who started the trust, are co-mingled with each spouse.  These types of trusts are not amendable if you get a divorce and you should revoke the joint trust entirely.  These trusts are so integrated with your ex-spouse, both legally and for tax purposes, that nothing short of a full revocation will suffice.
Whether a joint trust or separate trusts is used, the trust appoints trustees to manage your finances in the event you become mentally incapacitated.  Once again, this is normally your ex-spouse and the living trust needs to be amended to appoint a new person.
Basic estate plans should include a will , powers of attorney and health care directives.  Some states provide that if you divorce your ex-spouse has been deemed to have predeceased you.  That means that if you have named a successor executor or agent under the power of attorney then that successor becomes the first successor.  However, do you want to have a legal document giving your ex-spouse the power to fraudulently use a power of attorney, for example, to gain access to your finances?  Prudence would dictate that you update all your estate planning documents soon after a divorce.
GaryLFalesThanks to our friends and contributors from The Law Offices of Gary L. Fales & Associates for their insight into estate planning and trusts.

Will a personal injury award affect my child support payments?

The purpose of child support payments is to ensure that children are provided for financially when the parents were not or are no longer married to one another. Generally, the non-custodial parent pays child support to the custodial parent. Child support in most states is calculated using a percentage of the income of the parent paying child support. When determining income, the issue of personal injury awards may arise as to whether those monies are included in the income of the parent ordered to pay child support. While there is a variety of laws in different states about personal injury awards and child support, a general rule is that personal injury awards are not income for purposes of child support. How the personal injury award is paid may affect whether a court includes that money in calculating available income or child support.

Child support calculations are based on the income of the parent ordered to pay child support.

When a court determines that one parent must pay child support the court reviews the income of that parent and apply the state guideline percentage for the number of children and assign the monthly amount of income to be withheld from that parent’s paycheck which is collected and disbursed to the parent receiving child support.

Every state has statutes and caselaw guiding the courts on what money is to be considered income for purposes of child support. Whether money received in a personal injury award is included as income for child support depends on the nature of the personal injury award and how the money is received.

Different states may treat personal injury awards as income, depending on how it is received.

In many cases, a personal injury award paid in one lump sum. Other times, especially when the injury award is a significant amount of money, the plaintiff may be awarded a structured settlement and receive monthly payments. When the amount and method of payment is ordered, there is usually a breakdown of what the personal injury award represents. For example, an award of $100,000 could represent $5,000 of lost wages, $25,000 in medical bills and $70,000 for past, present and future pain and suffering.

Some states will include the $5,000 in lost wages as income for determining child support. If that amount is to be paid in a structured monthly settlement, the court could include it in a monthly child support calculation. If, however, the $5,000 is included in a lump sum payment a court may not consider that as child support income. One of the reasons money received in a structured monthly settlement may be included in the child support calculation is the ability to enter a withholding order. The withholding order would require the insurance company paying the settlement to send a portion of the monthly payment to be collected and disbursed to the parent receiving child support.

While all states have their general rules for determining, collecting and disbursing child support, there can be exceptions and circumstances where the general rules are not applied. Another thing to consider is whether there has already been a child support amount and withholding order in place before the parent paying child support receives a personal injury award. Every situation is unique and an experienced divorce and Divorce attorney Collin County TX relies on can advise a client as to whether it makes sense to ask the court to modify the child support order to include additional income from a personal injury award in a new child support order.

ScrogginsFamilyThanks to our friends and contributors from Scroggins Family Law for their insight into  the effects of a personal injury award on child support.

Tow Truck Driver Shot at Eden at Watersedge Apartments and Townhomes in Memphis, TN

apartment crime lawyer memphis tnCrime at Memphis apartment complexes continues.

Just this morning, a tow truck driver was shot in the head through the window of his truck at the Eden at Watersedge Apartments and Townhomes near Fox Meadows on South Mendenhall Road. According to the news we’re reading, witnesses heard four gunshots ring out before calling 911. When police arrived, they found the driver inside of the tow truck unconscious. Officers had to break out a window of the truck to get inside. According to WMC Action News 5 in Memphis, the victim was identified as 28-year-old Darrell Adams and he was checking for parking violations at the apartment complex when he was shot.

Does the Victim (Tow Truck Driver, Darrell Adams) have a claim against the apartment complex where he got shot?

Maybe. There are many factors to consider. In Tennessee, apartment complex owners and managers must take reasonable measures to protect tenants and guests from foreseeable criminal attacks. Whether Mr. Adams would be able to recover against the Edens at Watersedge depends on a number of factors, including, but not limited to, the facts of how the incident occurred, security measures provided at the apartment complex, and crime levels for the apartment complex and surrounding neighborhood.

Are you the victim of an apartment crime or apartment shooting? If so, call the apartment crime lawyer Memphis,TN knows and respects.

If you are the victim of a serious injury due to apartment crime, please call Wiseman Bray PLLC today at 901-372-5003. We’ve helped other crime victims like you, and we can help YOU recover your damages if apartment management failed to take reasonable measures to protect against foreseeable criminal attacks. Wiseman Bray PLLC is an apartment crime lawyer Memphis, TN  knows and trusts. We will meet or speak with you and discuss whether you might have a case at no charge.  Call us today.

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003

www.WisemanBray.com

Smartphones and Product Liability

There are few people left in America who don’t have a smartphone in their pocket. Every year, exciting new technology is added to these incredible devices, and people line up down the block to receive the latest and greatest. In 2016, this excitement hit a roadblock as owners of the new Samsung Galaxy s7 reported their phone catching fire and even exploding. These phones have been the cause of numerous house fires and injuries, and were recalled by the manufacturer as a result and banned from being taken on airplanes. Such a disaster has left many owners of smartphones wondering if theirs is safe, and what to do if their phone causes them injuries or damage to property.

When a product features a defect that puts the user in danger or keeps the product from being used as intended, the customers can file a product liability lawsuit against the manufacturer. In the case of the Samsung phone, the batteries inside the phone featured a design flaw which caused them to heat rapidly and catch fire. Under product liability law, this is a called a design defect and the manufacturer can be held responsible for damages caused as a result of the defect.

Other types of defects that could occur are manufacturing defects and marketing defects. Manufacturing defects are when the product features an abnormal flaw which makes it dangerous or unusable. Marketing defects involve issues with the way the product was sold, such as if the seller advocated a dangerous use of the product. The end result of all of these forms of defect are the same, someone gets hurt or loses property.

With many people carrying their phones in their pockets, we put a lot of faith in phone manufacturers to sell us safe devices. When any kind of defect puts someone in danger of losing their home or their life, the burden for paying for the damages should rest on the company who made the phone.

If you have been the victim of an injury caused by a defect in a smart phone such as the Samsung Galaxy s7, you need to contact an experienced Dekalb County product liability attorney. An attorney who is experienced with product liability will be able to help you build a solid case to raise against the manufacturer of the smart phone, and ensure that you receive the compensation you deserve.

Andrew Lynch

Thanks to our friends and contributors from Andrew R. Lynch P.C. for their insight into product liability surrounding smartphones.

Criminal and Civil Liability in Hit and Run Cases

Hit & Run accidents are often portrayed in a wildly dramatic way on TV or in the movies. Someone is driving recklessly and rams into another vehicle or drives onto a sidewalk causing property damage before accelerating off into the distance. But the reality is a hit and run can be any accident where there is property damage or injury and you leave the scene before exchanging information with others involved and contacting law enforcement. In other words, a hit and run charge involves your duty to report. In any accident, you must exchange driver’s license, address, and registration information with other drivers involved and when serious, report the accident to law enforcement. If you are criminally charged with Hit and Run, you should immediately consult with an experienced criminal defense attorney.

Property Damage

In minor accidents the priority is to move the cars out of the way so as to not obstruct traffic and then exchange information with the other driver. In more serious accidents, as in, you cannot just drive away, you must also wait for law enforcement to arrive on the scene.

Personal Injury

If you or the other driver(s) involved, or any of the passengers are injured then in addition to your duty to exchange information and report you also have a duty to assist. This means offering reasonable assistance, contacting help, like the police or an ambulance, and remaining on the scene until injured parties are safely transported and you are given approval to leave.

Unattended Vehicles or Property

If you strike an unattended vehicle then you must make an effort to find the driver. Failing actual contact with the driver then you must leave your personal information for them someplace where they can find it and you must also report the accident to the police if the damage is substantial. If you hit and damage highway property, like signals or signs, then you have to report your accident to the highway or road authority. That information is usually available on the sign.

Criminal and Civil Liability

In cases where there is injury or death you may face criminal penalties. An accident that results in injury is usually considered a class 1 misdemeanor traffic offense; if the injury is considered serious this may become a class 4 felony offense; if the accident resulted in death then there may be a class 3 felony charge. Felony charges mean that you are facing potential jail time so it is vital to seek good representation in such matters.

Fleeing a scene also has civil consequences. Because the act of leaving without performing your duty to assist and report is a crime, this also opens you up to responsibility for civil damages. Leaving is also an intentional act and this could in effect increase the punitive damages you face. Sometimes claims are handled through insurance alone, but it is important to understand how a hit and run makes you liable for civil damages too. As with criminal charges, if you find yourself facing liability for a hit and run accident, contact a civil attorney.


HBThanks to our friends from Hebets & McCallin for their blog contribution and insight into criminal and civil liability in hit and run cases.

What Are Damages?

Whether it be the result of a car accident or slip and fall, in every personal injury case there are generally two things that the victim must prove-liability and damages. Liability means fault, so the first thing the victim must prove is that the other person or company was at fault for the accident. If the victim can prove that the other party was at fault, then the victim must prove their damages.

As a car accident lawyer Delray FL trusts can explain, damages are generally broken down into two different areas – economic damages and noneconomic damages. Economic damages are things such as past and future medical, nursing, rehabilitation and supportive care expenses. For example, if someone is injured and can no longer clean their house or maintain their yard, not only are their ongoing medical expenses an economic damage they can recover for, but the cost to have someone take care of their house and yard is also considered to be an economic loss for which they can seek recovery in their personal injury case. If the victim’s injury is significant enough to affect their ability to work, then any lost earnings or loss of earning capacity is also considered to be an economic damage that can be recovered in a personal injury case. Reports or testimony from medical experts are necessary to establish the limitations an injury will likely have on the victim’s ability to work and sometimes a vocational rehabilitation expert will also be hired to discuss how the injury impacts the victim’s employability. The age of the victim is critically important in determining their future economic damages – the younger the victim, the longer they are more likely to live and thus, their future damages are likely to be greater than someone who is much older. A person who is significantly injured at age 25 is going to have more medical expenses and lost wages over their lifetime than someone who has the same injury who is 65. It is often necessary to hire an accountant or an economist to project the economic loss suffered by an injury victim. Such damages usually need to be reduced to “present money value,” meaning the amount of money needed in a lump sum amount today to provide a stream of income over the life of the victim to compensate them for their economic damages.

In addition to the economic damages discussed above, an injury victim is also entitled to recover for their non-economic damages, including any past and future pain and suffering, loss of ability to enjoy life and mental anguish. Just as with economic damages, the non-economic recoverable depend on the significance of the injury and the age of the victim. Obviously someone who has been left wheelchair-bound as a result of an accident has suffered a much more significant impact on their quality of life than someone who has suffered a broken arm. Likewise, someone who is injured while in their twenties has a much longer time to live with the consequences of their injury than someone who is in their eighties, and generally speaking, if the injury is the same, the noneconomic damages recoverable by a younger person will be greater than those recoverable by an older person.


Thanks to our friends and contributors from Luckman Law for their insight into wrongful death suits.

What to Do After a Minor Car Accident

According to National Highway Traffic Safety Administration data, the United States incurs losses of more than $230 billion owing to the over seven million car crashes annually. This results to over two million individuals injured and a further 40,000 killed. Insurance statistics place minor accidents at a 75 percent threshold, with losses considered as more of property damage as opposed to injury accidents. Such matters are easily resolved, and the following are the steps you can take after being involved in a minor incident.

  1. Keep Calm

The instinctual actions that kick in when you are in an accident include tempers flaring, yelling and engaging in a blame exchange. It is important that when in such a situation, stay calm. Get out of your car and do not confront the other motorist. Instead, determine if yourself or anyone in the other vehicle was hurt and if so, seek medical attention immediately.

  1. Safety First

Before doing anything else, it is wise to inform other road users of the impending danger. Turn on your hazard lights, and put up the caution triangle at a safe but visible distance from the scene.

  1. Document the Accident Scene

This step is important if an accident investigation becomes necessary. In this step, you will want to ensure the following areas and information are documented, possibly with the camera and/or video camera on your cell phone;

  • The two cars’ damaged areas.
  • Your license plate as well as that of the other driver’s.
  • The insurance details of the other driver
  • The surrounding environment. With this, you may find skid marks, signs of a faulty road, or it could be that actual place the first impact occurred.
  1. Get Witness Accounts

At this stage, all the information is critical. You should ask them if they would be willing to make a written or a verbal statement as to the events that unfolded. If they would be willing to talk, get all their contact details. If possible, also photograph and videotape them using your cell phone. All of this helps in making sense of the crash as well as strengthening your car claim.

  1. Get In Touch With the Police

In several situations, accident victims have fallen prey to the thought of not involving the police in the accident. However minor the crash is, get in touch with police. Please note that insurance payment claims are only effected with a police report attached to the claim request.

  1. Call Your Insurer

Get in touch with your insurance provider as early as possible. They can begin the process of documenting the accident and determining liability. They may send a claims adjuster to assess the damage and confirm which party is at fault.

  1. Admission of Guilt

Under no circumstances should you admit any fault in the accident, either to anyone on scene, other drivers who were involved, or even your insurance company. It is the duty of the police and the insurance agents to determine the liable party and not you.

  1. Seeking Medical Assistance

As minor as the crash may seem, you should get checked by a doctor to ascertain that you didn’t suffer any internal or hidden injuries. Do this immediately.

car accident lawyer DC counts on can help you recover your damages from the liable person should your injury be more serious than you initially thought.


Thank to our friends and contributors from The Law Firm of Frederick J. Brynn, P.C. for their insight into car accidents and personal injury cases.