He is very knowledgeable of family law and has guided me through this arduous journey.

Case Notes: Personal Injury Claims as Marital Property?

When is a personal injury claim marital property subject to equitable distribution? Ordinarily, property acquired between the date of marriage and date of separation is marital. But what about a personal injury claim for an injury that occurred prior to separation but that was settled after separation?

In Focht v. Focht, 32 A.3d 668 (Pa. 2011), the Pennsylvania Supreme Court reversed the decision of the Superior Court regarding the date which determines whether the proceeds from a personal injury claim are marital or non-marital.

In Focht, Husband sustained a serious injury in April 1999. The parties later separated in August 2001. The Personal Injury suit was settled in November 2004, providing Husband with personal injury settlement funds after separation.

The Divorce Code excludes "any payment received as a result of an award or settlement of any cause of action or claim which accrued prior to the marriage . . . regardless of when the payment was received." 23 Pa.C.S. 3501(a)(8). As such, claims which accrue during the marriage are marital. Essentially, the case boiled down to what the word "accrue" means.

The Superior Court and Husband contended that the claim did not accrue until Husband was actually entitled to receive the funds - i.e. the settlement in November of 2004. Wife contended, and the Supreme Court of Pennsylvania agreed, that the claim accrued when the incident actually occurred - making the entire settlement a marital asset subject to Equitable Distribution.

Determining whether an asset is marital can be a complicated and confusing matter, requiring serious expertise. If you are going through a divorce, it is always best to retain an attorney who understands the constantly changing interpretations of the divorce code. .