How is an ongoing personal injury claim or received compensation handled in a divorce? The division of personal injury compensation is a complex issue that often leads to legal disputes.
Personal Injury Compensation within the Matrimonial Property Regime
If you are married under community of property, in principle everything falls into the joint estate. However, specific exceptions apply to personal injury compensations.
Statutory Provisions
According to Article 1:94(3) of the Dutch Civil Code (BW), compensations for non-material damage fall outside the community, unless otherwise agreed.
Types of Damage Items
| Damage Item | In Community? | Explanation |
|---|---|---|
| Pain and Suffering Compensation | No | Personally connected, falls outside the estate |
| Loss of Income (past) | Yes | Compensation for lost income |
| Loss of Income (future) | No | Future earnings are individual |
| Medical Expenses | Yes | Paid from joint assets |
| Domestic Assistance | Yes | Concerns household costs |
Matrimonial Property Agreements and Personal Injury Compensation
With matrimonial property agreements, such as cold exclusion, the situation is often clearer.
General Rule
- The personal injury compensation remains with the person who suffered the injury
- No division upon divorce
- Pay attention to any equalization clauses in the agreements
Effect on Alimony
A personal injury payout can affect the determination of alimony.
Relevant Factors
| Factor | Impact |
|---|---|
| Pain and Suffering Compensation | Not taken into account in means/needs assessment |
| Loss of Income | Regarded as income and counts towards it |
| Assets from Compensation | May influence the needs |
Ongoing Claims upon Divorce
If a personal injury case has not yet been settled at the time of divorce, there are additional points of attention.
Important Agreements
- Who bears the costs of the lawyer?
- How is a future payout divided?
- What happens if the payout amount is unexpectedly high?
- How are advances settled?
Periodic Compensations
For monthly or periodic payments, the question arises whether these must still be shared after divorce.
Guidelines
- Compensations during marriage: fall into the community
- Compensations after divorce: personal property
- In case of disagreement: the court decides based on reasonableness
Concept of Attachment
The attachment rule states that items strongly connected to one person fall outside the community.
Application to Personal Injury Compensation
Pain and suffering compensation is attached and remains outside the estate. For other damage items, this is less clear-cut and discussion may arise.
Relevant Case Law
There are numerous rulings on personal injury compensation in divorces.
Key Rulings
- Hoge Raad 3 November 2006: confirms attachment of pain and suffering compensation
- Hoge Raad 24 October 1997: distinction between material and non-material damage
- Multiple Court of Appeal rulings: loss of income may be partially attached
Practical Advice for Leiden
- Record agreements on personal injury compensation in the divorce
- Ensure these agreements are included in the divorce settlement
- Consult a specialist in family law and personal injury
- Consider tax implications of the division
- In case of doubt: request a ruling from the court via District Court of The Hague, Leiden location
Frequently Asked Questions in Leiden
What happens in a divorce?
During a divorce, assets are divided, alimony is determined if necessary, and child custody is arranged.
How is parental authority over children determined?
Parents can retain joint parental authority or it can be awarded to one parent. The court always decides in the best interest of the child.
What is alimony?
Alimony is a periodic contribution from one ex-partner to the other or for the children, intended for maintenance.
May I take my child with me after a divorce?
This depends on who has parental authority. With parental authority, this is possible; without it, permission or a court decision is required.
How long does a divorce process take?
With mutual consent, a divorce can be finalized within three months.
For legal support, you can go to the Juridisch Loket Leiden, located at Stationsweg 46, or submit matters to the District Court of The Hague, Leiden location.