There has been a substantial question for some period of time as to whether a cause of action, such as a personal injury arising from an automobile accident, which a party to a marriage suffers after the marriage but before separation, is distributable as a marital asset in a divorce proceeding where a claim is unliquidated at the date of separation and a settlement or damage award occurs after the date of separation.
The Divorce Code, at Section 501, provides that marital property does not include property acquired prior to the marriage and does not include property acquired after final separation until the date of divorce. Is a personal injury claim which occurred during the marriage and before separation but which is unliquidated, no sums certain for the injury has been determined and in fact no determination has been made thereof anything will be paid for the injury, a marital asset to be included in a divorce adjudication if the personal injury is settled after separation or a damage award is made after separation?
In Facht v. Facht, the Court determined that a personal injury or other cause of action which occurred during the marriage before separation is subject to equitable distribution. The law is that the personal injury claim or the cause of action vest when it accrues. The time of accrual had not been defined. Facht finds the time of accrual as when a right to sue or make the claim occurs. Thus, in the typical automobile accident, a right to sue or make a claim would occur on the date of the accident.
Applying Facht, if a person is involved in a motor vehicle accident which creates personal injury claim and separates a week later and then, in treatment of the claim, a week after that, suffers malpractice in treatment from a doctor, the claim against the other driver in the automobile accident accrued during the marriage before separation but the medical malpractice claim against the health care provider occurred after final separation and would not be marital property.