EP #14: The Intersection of Personal Injury and Divorce with Attorney Bryan Comer

When a personal injury collides with a divorce, every dollar has a job—and the labels on those dollars decide who keeps what. Alison Herlihy is joined by Brian Comer, a seasoned personal injury lawyer, to break down the difference between economic damages that often touch the marital estate and non‑economic harms like pain and disfigurement that usually stay with the injured spouse. From settlements that fail to itemize losses to verdicts that clearly map wages and medicals, we explain how documents, expert reports, and trial arguments can “reverse engineer” the categories courts rely on.

If you’re navigating both a claim and a split, you don’t have to guess your way through. Subscribe, share this episode with someone who needs it, and leave a review with your top question so we can tackle it next.

Visit HerlihyFamilyLaw.com to learn more.

Transcript

Welcome And Why This Matters

Bryan Comer 0:00

But in dealing with the other bucket, which is compensatory damages. And in that, you get uh economic damages, which would include things like medical bills, which would include things like lost wages, uh, things that that uh someone can put a fixed number on. I've lost X dollars because of this injury. The other thing are non-economic damages. Those non-economic damages are the pain uh that somebody's endured, the uh mental anguish, the actual injury itself if there's disfigurement or permanent injury.

Intro/Close 0:34

Welcome to the Herlihy Family Law Podcast, your trusted source for expert insights on navigating family law matters with clarity and care. Whether you're tackling tough decisions or seeking guidance for your family's future, we're here to help.

Brian’s Path To Personal Injury Law

Alison Herlihy 0:50

Let's get started. Welcome back to the Herlihy Family Law Podcast. I'm your host, Alison Herlihy, and today we're discussing a topic that many people don't realize can have a major impact on divorce, and that's personal injury claims. Um, an injury doesn't just affect your health, it can affect finances, insurance, even how assets are divided. When these two areas of the laws intersect, things can get complicated fast. I'm joined today by Bryan Comer, a partner at Tobias and Comer LLC. Uh, Bryan's an experienced personal injury attorney who represents clients in serious injury and wrongful death cases, including auto and truck accidents and product liability matters. Uh Bryan and I also go wave a minute because we graduated from law school together. And I will not tell you how many years ago that was, but it was ends in a zero.

Bryan Comer 1:43

Yeah.

Alison Herlihy 1:44

Um, he's here to help us understand how personal injury and divorce cases overlap and what people need to know to protect themselves. Bryan, thanks for being here.

Bryan Comer 1:53

Yeah, thanks for having me, Alison.

Alison Herlihy 1:55

Yeah. Um, Bryan, can you tell us about how you came into personal injury law and what drew you to this area of practice?

Bryan Comer 2:02

Yeah. So, you know, for whatever I'm the first person in my family to ever uh graduate from college, much less be a lawyer. And so I didn't have a clue as to what lawyers did. All I knew, strangely, it sounds kind of Pollyanna, but I knew from an early age I wanted to be an attorney. Um, and so I mean from like six or seven years old. And so kind of all roads led to that for me. And then when I got into law school, um, I had the uh uh the good fortune of working for a couple of different personal injury firms. I also worked for some civil defense firms. Um, and I just I was really drawn to uh helping people. And in fact, the the very first assignment I got, I'll never forget this as a clerk our the summer after our 2L uh second year of law school year, uh my assignment was to try to figure out from the insurance company how to keep from paying somebody who had been hurt, how to keep from paying their hospital bill. And I was like, well, why should shouldn't we pay their hospital bill? That's that's ridiculous. But um, but anyway, and it just really it that was the the thing that led me there. Um, and I wanted to be able to represent people uh and and to help them, and that's what we do here.

What Cases Personal Injury Lawyers Handle

Alison Herlihy 3:11

That's great. Um, what types of cases do you most frequently handle in your practice?

Bryan Comer 3:17

So you hit it on the head. I mean, we we do a lot of defective product litigation, and that can come in a lot of different forms. It can I've done everything from defective crawler cranes that are you know a dozen stories tall to uh we just finished a uh awful, awful case involving an e-bike, an effectively assembled e-bike. And so, you know, we do a lot of that kind of stuff. We do a lot of uh maritime uh cases since we're right here on the coast, uh, and the access to the waterways that we have all around uh the area. And then we also do, you know, more serious uh car wreck cases, trucking cases. Um, and you know, basically what I tell folks is if something bad has happened to them or a loved one, that's kind of our area of practice. Um, we look at, well, I mean, you know, we look at them because they come in all different kinds of forms and shapes and sizes, and uh that's that's what we do.

Where Injury Claims Intersect With Divorce

Alison Herlihy 4:11

Yeah. Those are, I mean, and those are things that could affect anyone really. Yeah, like you said, yeah. Well, what are some ways that personal injury claims can intersect with divorce proceedings?

Bryan Comer 4:22

Sure. So, you know, I I forget the exact statistics off the top of my head, but it's something like one in two uh families uh go through a divorce, I think something something along those lines. And you know, so if you just said, okay, well, every other uh married couple is gonna have this happen to them at one time or another, the the odds typically dictate that that those two things would intersect. And so um, you know, there's there's all kinds of things, and we get questions all the time for for folks who maybe are considering divorce or uh might be in the middle of a divorce proceeding when we get involved and they have questions such as, you know, how timing uh affects different things, um, what are subject to marital division versus you know things that they're gonna be able to keep after the fact. And uh you'll hear me say this throughout our our discussion today, but I always tell them, you know, you always want to consult with uh your domestic relations attorney, your family law attorney to make sure that that you're doing the right things there. Because I mean, we're like doctors, and you know, you and I both have the same bar license, and and I can do uh divorces or or family law matters, but that doesn't mean I ought to.

Alison Herlihy 5:35

Uh and you know, and so yeah, I mean you wouldn't want me coming in handling a big truck case or something. Exactly, exactly.

Bryan Comer 5:41

I mean yeah, uh, but but that's the thing. And so I always tell folks, look, you know, particularly, you know, with with people like you who are so so skilled at what you do uh in that field, you know, you've got great counsel, use them. That's what that's what we're here for.

Alison Herlihy 5:57

Yeah. In your experience, how might compensation awards or settlements impact marital property division?

Bryan Comer 6:05

So I think it's important for folks to understand how the different areas of uh personal injury recovery are. And we're talking about, you know, really you you get two kind of big buckets. One are punitive damages, that is uh money there not to award or compensate somebody, but that's to punish uh wrongdoing and to deter not only that bad actor, but other people like that or companies like that bad actor from doing the same thing. So setting that aside, and the the odds of those recoveries are very uh they're rare to get punitive damages in all cases except for wrongful death. Uh, and then you know, typically you're not gonna then, you know, if one of the spouses has died, then you know, that that takes care of the divorce issue. But in dealing with the the other bucket, which is compensatory damages, and in that you get uh economic damages, which would include things like medical bills, which would include things like lost wages, uh things that that uh someone can put a fixed number on. I've lost X dollars because of this injury. The other thing are non-economic damages. Those non-economic damages are the pain uh that somebody's endured, the uh mental anguish, the actual injury itself if there's disfigurement or permanent injury. And so the law typically says for personal injury, that is something that is unique. Uh, I wrote this down from a case that there is nothing more personal than the subjective sensation of agonizing pain, mental anguish, or embarrassment. And so that is typically not treated as a marital asset. That's not going to be subject uh to division. Uh, same would be true for future lost wages, for future medical care, uh, things like that that are going to postdate the divorce decree. But then you get into the economic back to the economic stuff. If there are past loss wages, you know, one spouse couldn't work uh during the pendency of the divorce or or before the divorce was filed or whatever, then that could be subject uh to to division. And the same with um with medical bills, past medical bills for you know, treatment incurred. Basically, if the if the uh marital um unit has incurred that loss, then that would would fall under that umbrella.

Alison Herlihy 8:28

Yeah, because I mean if you think about it, whatever you've collectively spent on medical bills has gone to deplete the marital estate.

Bryan Comer 8:35

Exactly.

Alison Herlihy 8:35

And just like I think I think this is a misconception that I see a lot of my clients have too, or maybe they don't they don't know or don't understand that what you earn during the marriage is a marital asset. So, like, you know, your paycheck from your job while you're married is a marital asset. And so it's important to understand if you're being compensated for lost wages during the marriage, that could be a marital asset, right?

Bryan Comer 8:59

Yeah, absolutely. Because just like you said, I mean, you're depleting funds, whether it's taking an early withdrawal from a retirement account or whether it's depleting savings or whatever to make up for that lost income, uh the marital unit is taking a hit.

Alison Herlihy 9:13

Right. What about I because I've seen this happen in some cases, if somebody has a settlement and it doesn't differentiate, like they just say you get a million dollars and it doesn't say whether it's for pain and suffering or lost wages. What if it doesn't differentiate?

Bryan Comer 9:31

So you know, this is one where I would how do you figure that out? I I would defer to you on some of this, isn't it on the uh the person claiming the status to ultimately prove that that status applies in the divorce proceeding?

Alison Herlihy 9:44

Yeah, I think that's typically how it would be approached.

When Settlements Don’t Itemize Damages

Bryan Comer 9:47

Yeah, so from our end of it, um, and and that's actually a really good point that I don't usually consider when entering into some settlement agreement, because you know, uh unless there's a divorce uh pending or the spouse, the the client slash spouse tells me that there's there's an issue that I then need to talk to somebody like you about, um then I I stay silent on it. But what I would argue is, okay, well, we know what the uh uh if if the case settles for 10 apples, we know that there are three apples of medical bills that have to get paid back. We know that uh, you know, the the lost wage claim was two apples or whatever. And so sometimes you can, I guess, reverse engineer that. Um but I think if if you have made uh the claims during the the litigation, I think that those documents would kind of kind of support that. Like in other words, if I issue an expert report from an economist that shows the lost wages are four apples, and again we're settling for 10 apples, then you could say, okay, well, you've said, you know, kind of like an estopple.

Alison Herlihy 10:54

Right, you can't really turn around and claim it's a different amount. Yeah.

Bryan Comer 10:58

Um, and maybe you could reverse engineer it that way. But a lot of times what I found is that the pain and suffering and the injury itself are what drive a settlement. Um, and then too, you know, we're talking about settlements, but a lot of cases go to trial too. And that's what we do. I mean, we um while a lot of the cases we work settle, we try or we prepare every case to go to trial in the event that it doesn't, as do you. I mean, you got to get ready to go down there and and uh present your case, same with us. And so, in the event that we get a jury verdict, a lot of times what I do in the closing argument is lay out, okay, this is what the evidence is for uh lost wages, this is what the evidence is for, you know, uh medical bills, and then I'm asking for an award. And so then if the jury gives that, then that's also another thing where you can say, okay, well, this is what they they allocated. But absent that, I think, you know, that's the only real thing you could do is look to what the records show and look to what the uh injured person advocated for uh during the the litigation.

Alison Herlihy 12:01

Yeah, so that information is potentially gettable even if the settlement itself doesn't specify. Yeah.

Bryan Comer 12:08

That's right. And and just because, excuse me, just because uh something might be confidential or oh, it's subject to protective order in one case doesn't mean that it's not discoverable in the the uh divorce proceeding. Uh yeah, that's a great point. Yeah. But people people think, oh, well, that that was confidential in this case. Well, you know, there's a whole other uh uh case that's just down the hall just down the street, and um, or excuse me, just downstairs in the same courthouse. And uh, you know, that those judges are also circuit judges and they can also issue subpoenas and and all that.

Alison Herlihy 12:40

Yeah, I was about to say, I think you know, a lot of people that aren't familiar with the legal system, I think forget that domestic relations court is also circuit court and the same rules apply to us as they do up on the eighth floor, the sixth floor, or anywhere else. Yeah. Um, can you explain how personal injury, um, whether it's pending or resolved, can affect considerations like spousal support or child support or distribution of assets in a divorce?

Support Calculations And Injury Payouts

Bryan Comer 13:07

Yeah. So, like we were just talking about, uh, I think you can really carve that into two kind of again. I'm I'm a very visual guy. So uh if you say into buckets, so if we just talked about, say, the property distribution, so that would be, you know, the finances, the economic loss that we we just discussed, versus uh whereas that is something that is unique to the person and is personal, the injury's personal, the support issue, as I appreciate it, is a different animal. And correct me if I'm wrong on this, but with child support, what the court typically looks to uh is gross income. And so personal injury um settlements or uh judgments that get collected are considered by the court in doing that. Because, you know, what is it that you're you're bringing in that's part of that gross income, and that's no commentary on the tax implications of is this gross income or not. I always tell folks I'm you know, I'm no tax lawyer. Uh typically personal injury isn't isn't covered by that, but a different analysis for child support. So if if you know, because you're gonna want to take the the policy reasons, you're gonna want the children taken care of, uh, and so that's gonna go into play. Spousal support, as I appreciate it, um, and and chime in on this, but as I appreciate it, it is more of an ability to pay, so kind of like a net income. What are you left with? And then the court really has a lot of discretion as to whether or not to award alimony.

Alison Herlihy 15:13

Yeah, that's definitely true. I mean, alimony is based on like the paying or potentially paying spouse's ability to pay and then the other spouse's need. But you could get into a really complicated analysis with that, because I would imagine most people that get a large personal injury recovery, you're probably dealing with a lot of people that aren't going to be able to work, right? Or continue to earn money. And so they're gonna be going, okay, well, this pot that I got is all I have for the rest of my life. And my spouse may have been like a stay-at-home mom or whatever, but like I'm in a wheelchair, you know. So I mean, that would be a very fact-specific uh analysis.

Bryan Comer 15:52

Yeah, I would have to think so because then too, and and sadly, you know, you hit the nail on the head. A lot of our clients uh have e have had something just catastrophic happen to them. Right. They can't return to work. And so then you look, we'll do things. Um, one of the expert fields that we look to a lot is a life care planner, and then that's you know, okay, you're gonna go get a hundred apples uh in a in a settlement. Um, and you know, but we've got this plan that shows that it's gonna cost you 78 apples to live for the rest of your life because you have no medical equipment or whatever. And so I definitely think that that becomes more complicated as opposed to just, you know, and and you have a uh uh, you know, one of the the talking uh areas for later is like you know, misconceptions. And some I think a lot of folks have a misconception about what we do, and it's like this is some lottery or oh, I got an offender bender and I'm gonna get millions of dollars. And you know, that's just not the case. And you know, if if I guess if someone did come into a true windfall and they weren't hurt, but but you know, then I think you know, uh an argument could be made for for a uh alimony from that versus the person who has had a serious, serious personal injury, this this permanent and gonna, you know, they're rendered a paraplegic or you know, suffered an amputation or something. Uh, I think that's a different analysis.

Contributory Negligence Changes Everything

Alison Herlihy 17:14

Yeah. I mean, you could end up with maybe, you know, the spouse that that didn't get hurt, maybe they don't work, but they could, they can work even if they can't make a lot of money. And the other spouse that was the breadwinner is hurt so seriously that they literally cannot work. Right. You know, so that would be a tough situation for everybody, obviously.

Bryan Comer 17:34

Yeah, and and uh, you know, I can see the typical scenario of okay, one spouse stays at home, uh, one spouse is the the breadwinner, and you know, and and the typical situation where where we're not involved or a serious personal injury isn't involved, well, you know, they've gone and increased their earning potential a hundredfold or something while the spouse stays at home. Well, you know, okay, I've been with you.

Alison Herlihy 17:57

You probably pay an alimony, yeah.

Bryan Comer 17:59

Yeah, yeah, versus, you know, versus what we're talking about here where something just horrific's happened.

Alison Herlihy 18:04

Yeah. Well, are there um we touched on this a little bit, but are there other common misconceptions you can think of that people have about personal injury settlements, especially as it relates to divorce?

Insurance 101 And UM/UIM Stacking

Bryan Comer 18:16

Yeah, I mean, you know, again, the the thing thankfully we don't combat this too much in my practice. Um, you know, people coming in thinking, oh, I've I've had this happen and we're, you know, going to get all this money, uh, just just because. I mean, that's that's not how that works. Um, because I mean the law is a is a very rigid uh damages uh formula, not formula, but a um the damage law and the burden of proof that's on us and what we have to be able to establish to get that kind of a recovery. But I think the biggest one is people's um uh sometimes the word ignorance has a uh a negative connotation. I don't mean it that way, but just people don't know what they don't know. And so they might think, oh, well, well, I want to sit back on this claim, or I want to wait, or I want to do X, Y, and Z because I don't want it to affect the divorce proceeding. Or like I mentioned, you know, earlier, oh well, well, this is just over here in this case, and and it can never go uh into the divorce decree. Yeah, not exactly. Um, and so you know, I I think that's the main thing is is just a complete misunderstanding, uh, whether it be by the litigants or by lawyers who might not practice in one field or the other of how that works. And I know that, you know, time while the rules are the same, the application of the rules I think is a little bit different, um, and um maybe a little bit more aggressive sometimes in the domestic relations world. Ours we get in cases where it's extremely personal to the person that's it who's been injured, but typically you don't have somebody who's being spiteful, you know, vindictive wherever I'm gonna make your life miserable because I'm gonna make your life miserable, kind of thing.

Alison Herlihy 19:59

Well, the insurance company is probably not emotional, they're just they're worried about their bottom line. Exactly. Right.

Bryan Comer 20:05

Exactly. Well, what about you? What do you think the the biggest misconception is from folks on uh my end on the personal injury side with with domestic relations?

Alison Herlihy 20:13

You know, I think in particular, like talking about the money issue, I think that sometimes a spouse who has been hurt like emotionally in the marriage, they think that because the other spouse did something bad or did a lot of things that are bad, that that's sort of like winning the lottery and it automatically means you can you're gonna get a lot of money.

Bryan Comer 20:33

Right.

Alison Herlihy 20:33

But what people that think that way maybe don't understand is you know, when you get divorced, you're like dividing a pie. And you're not going to get more than what's in the um you're only going to get part of everything y'all have. You can't get more than everything y'all have, no matter how bad the person was. You know, if they don't have any money, they don't have any money.

Bryan Comer 20:56

Right.

Alison Herlihy 20:57

Um, that yeah, that's something that can be tough for people to understand. And um yeah, that's that's one of the main things that sticks out to me. But what about how do um fault and contributory negligence uh factor in?

Bryan Comer 21:14

So I mean, okay, so in Alabama, contributory negligence means that if you are one percent if the injured person is even one percent at fault uh or more, then they can't get a recovery. And so um where if there is a pending claim for negligence, which and I always explain to folks, I always think of it uh as fault as like a three-step ladder. Uh the top ladder is intentional conduct. This is taking you back to torts all over again, first year. The first the top uh step of the ladder is intentional conduct, I mean to hurt you and I do. The bottom step of that ladder is negligence, I fail to act reasonably. And that's what we're talking about here. Then you get the intermediate step there, which is wantonness, which is reckless or the reckless or careless disregard for the health and safety of others, driving drunk, texting and driving, that sort of thing. And so if someone does have that claim, but maybe they were doing something that they shouldn't have done that proximately or directly caused the injury, then under the law, they're not supposed to get a recovery. And so then all of those analyses that we just went through uh with the marital property about spousal support, about uh or alimony or child support, that could completely change the analysis because if if the spouse is thinking, oh, well, my ex or soon-to-be ex is going to come into all this money, well, they might not. And and the jury could say, Okay, well, we find that you're even 1% at fault, so you get nothing. Um, you know, and so so from that standpoint, that's how that could could affect it. Although there's a um, you know, practically sometimes the juries see that as a little harsher and and sometimes can uh adjust their award accordingly without officially, you know, completely saying you get a zero.

Alison Herlihy 23:05

Yeah, that does seem pretty unfair.

Bryan Comer 23:07

Yeah. Well, I mean, versus other states that have a uh comparative fault where you can and there's two different models on that. I won't bore you with all that, but basically, if you're up to 50% at fault, uh, then you just did under one analysis, you just deduct whatever they like prorate it basically.

Timing Claims Around Divorce Finalization

Alison Herlihy 23:23

Yeah, exactly. That's interesting, yeah. Well, fortunately, we don't have negligence in divorce cases because you could probably say everybody's negligent and picking the wrong partner, they're getting divorced.

Bryan Comer 23:34

Well, that, and not to mention like the stupidity that I'm sure the negligence that happens in with with what some of the spouses are doing or thinking they're getting away with.

Alison Herlihy 23:42

Yeah. Um, well, obviously, insurance often plays a huge role in personal injury claims. What should people know about policy limits, uninsured or underinsured coverage, or the timing of claims when divorce is also a factor?

Bryan Comer 23:56

Okay, so you you've hit on a soapbox of mine. Um, underinsured motorists in particular is something that's just near and dear to my heart. It is the one of the cheapest uh coverages that you can purchase. Um, and it is the only thing that you can purchase to cover yourself if someone else causes you injury. And it applies if you're in a car, it applies if you're walking, it applies if you're riding a bike, it applies if you're sitting in your living room. If a car causes you injury, a car drives through your living room, and I've seen that happen. If a car runs over you while you're jogging or walking or whatever, that's happened to me. Oh, has it? Oh my gosh. Uh, then then uninsured or underinsured motorist coverage applies. And so um Wow, I did not know that. Yeah, and uh, you know, the we we had a case where a uh young woman was was riding a bike and she got hit by a man who who probably shouldn't have been driving. It was sad stories of a very elderly man couldn't see, um, and he he ran over and he permanently injured her, and it was awful. And oh no, but her under he had he had some limits, but then what underinsured motorist coverage does is it then steps in on top of those uh to pay up to the policy limits. And the good thing about underinsured motorist coverage is it can stack on itself. So, in other words, if uh my wife and I, if we get hit by somebody, well, we have two vehicles, and so if we have um you know coverage of of what X dollars on both cars, now that's two times that.

Alison Herlihy 25:26

If we have a hundred, you can get 200.

Tort Claims Between Spouses

Bryan Comer 25:28

Exactly. And it's expressed as a per person limit per crash or per accident limit. And so then if you had like typically, if you said had 250,000 per person, that's 500,000 per accident. So that means that times two vehicles, that's up to a half million dollars per person, a million dollars per accident. So if you got four people in the car with you, there's a million dollars of coverage on top of whatever the atfault person has, and then it gets even more uh complicated, uh, but good if you invite me uh to uh dinner or or whatever to lunch or something, and for some reason I'm driving your car. I don't know, stay with the hypothetical. Uh, but we get hurt, then uh, or you're driving my car. Uh, if say you're driving my car and somebody runs through a stop sign and hits us, you get the benefit of my coverage because it goes with the vehicle, and then your coverage on top of that. And so it would go at fault driver, the car, whoever owns the car, that UN policy, and then the policy on top of that, plus the stacking. And so folks have a misconception about that. I think insurance companies don't push it because they don't under they the premium is low relative to the benefit that can get paid. Um, and and that's something that I just tell everybody. So thanks for giving me that that opportunity. But in terms of how the application of coverage applies, typically for auto coverage, it is an occurrence-based policy, meaning that the day you have the wreck, the moment in time you have the wreck, that's what controls. So, did you have coverage in place at that point? If so, then there's coverage. If not, then you don't. And we get this question a lot of, you know, and I actually dealt with this in a case where a couple is going through a divorce, they have the she has the wreck, um, and you know, they then decide to get divorced. Do I have to keep paying for the auto insurance? No, you don't. Um, if people get divorced but are still cohabitating, and I ain't weighing in on that or or whether that's a good idea, but if they are, then there still might be coverage, even if you have completely separate policies. If you're living in the same household, the UM coverage could also apply. So that's yeah, it gets it gets uh it's a little bit complicated, but uh it is a um expansive reading of the coverage because I mean, you know, that's what you're paying for uh when you pay the premium and get the contract. But but that's the thing. So, like if somebody says, Well, I've been in a wreck, well, I'm now gonna get a divorce. Well, whatever was in place, the moment in time that wreck happened, that's what controls.

Alison Herlihy 28:08

Is there a strategic advantage in resolving a personal injury claim before finalizing a divorce?

Bryan Comer 28:15

So you would know about that better than I, but from what uh I understand about it is that uh since the personal injury claims, like we talked about, are personal to the injured person, the timing really doesn't matter. And so if you get hurt before in the or in the middle of a divorce decree or right after it's yours, unless you know we get into situations like we had talked about before.

Alison Herlihy 28:40

Yeah, this is a really complicated question. Like we could talk a long time probably just about this question, but um, there is some case authority that says that if there is a marital asset that's not divided in the divorce, like if the divorce is silent as to that marital asset, that the party still both own it. So, like if it if the personal injury settlement just isn't mentioned in the divorce, you could end up in a situation where you're already divorced and your ex-spouse is arguing that they still own half of, say, your lost wages claim or something, and then you're bringing back in court.

Bryan Comer 29:15

Wow.

Alison Herlihy 29:15

Or um, if you had a situation where, say, you get divorced and the judge says, well, they have a pending personal injury claim. I think the the uh lost wages and the medical bills part is a marital asset. I'm gonna order them to split that part of it 50-50, and then you settle the personal injury claim after the divorce, but you maybe can't agree on what the amount is that should be split, then you're right back in court asking the judge to figure it out for you.

Bryan Comer 29:43

Sure. Um I guess you could get the the scenario in that case where the the the person with an injury claim could say, Well, my lost wages are a dollar, you know, some scam, you know, that could happen. Yeah.

Alison Herlihy 29:57

Um, you know, or you or a judge might say, Well, this claim isn't resolved yet, so I don't consider it to be a marital asset because it's speculative, they might not get anything. So I'm not awarding anybody anything. So I mean, there's like a hundred different ways that that could go, really.

Bryan Comer 30:13

After the divorce decree becomes final, is that something that the judge has the jurisdiction to go back into and revise?

Alison Herlihy 30:20

Yeah, that's why it's a complicated question. Like I said, there's there's some there's some case authority that gives the a judge like limited jurisdiction to address something. Like, um, you know, say for instance, it turned out that well, I don't even know where I'm going with that. But there is case authority that says if there's like a jointly titled asset that's not addressed in the divorce, that the people still jointly own it. Um, so there's there's some argument to be made that you have like a window open to go back to court, even though the divorce is final and say, like you could argue it wasn't a final judgment because it didn't adjudicate all the assets.

Bryan Comer 31:01

Sure.

Alison Herlihy 31:01

For instance.

Bryan Comer 31:02

Sure.

Alison Herlihy 31:03

Um, yeah, there's you're getting into like really weird areas of domestic relations law when you're going down that road.

Bryan Comer 31:10

That that's what I do is get into the areas of the law.

Coordinating Counsel And Case Strategy

Alison Herlihy 31:13

So I mean, I would want the judge to if you know, I would want the judge to put in the order I'm intentionally not awarding the other person any of this claim. Like I would rather it not be just silent as to that, if the claim's still pending, um, just because you don't want to leave the door open. Like when people get divorced, you want it to be over with as much as possible. You know, um, obviously, if people have kids, you know, it's kind of never really over with. But um, you know, you want you want everything to be as resolved as much as you can.

Bryan Comer 31:47

Well, so on that same token, is it uh in your experience, do you ever work with personal injury lawyers and say, okay, well, we've got Jane Smith as a common client, you know, we need to do make sure that this is included in say a settlement agreement or in a mediation statement or in a release uh to delineate that.

Alison Herlihy 32:05

I mean, you certainly could do that. And like, I mean, you could strategically say we want more of this settlement structure to be for pain and suffering than for lost wages, like for instance, if you don't want it to be divided.

Bryan Comer 32:16

Sure. You know, that makes sense.

Alison Herlihy 32:18

Yeah. So that's interesting. One thing I did want to touch on too that we haven't really gotten to is um, and I think a lot of people don't think about this, but if you have a personal injury that is caused by your spouse, like for instance, I've had cases with pretty serious domestic violence involved where like my client has like lost teeth or had like vision issues from being punched. Um, I've had cases where one spouse gave the other spouse an incurable sexually transmitted disease.

Bryan Comer 32:52

Right.

Alison Herlihy 32:53

Um, so like those are those are personal injury claims that are that are part of the divorce, but they're also torts, you know. So what do you have you ever handled an issue like that?

First Steps And Protecting Your Rights

Bryan Comer 33:05

So not directly. Um I uh my old firm, we had a case where where that latter situation happened and it was in the process of the divorce. And in that situation, what we did was litigate the claim in circuit court in a completely separate civil action. And I don't know, um it I presume it could be litigated and there could be like a uh for the non-lawyers out there, there might there's a phrase race judicata. I don't know if if the um meaning that it's been decided, I don't know if if a ruling in a different in the same court but different courtroom, if that would affect the underlying jury trial, because you're right. I mean, that is a tort um that that is, you know, could be tribal by jury trial. And and you know, you can bring it and and do the whole deal like we do in any other serious personal injury case. And uh, and while, you know, what at least in in our neck of the woods, those are rare to see, uh, they're not unheard of, and they're not uncomfortable they're not um, you know, just complete outliers. And so uh I think that you could have, and we run into that a lot too, with like probate matters, where you've got like the same issue is in front of two different judges and like a bench trial versus a jury trial. And um, and and I think each each case is different, but like in the situation you just presented where one spouse causes the other injury, what we typically would see would be that in uh a completely separate civil action for for money damages.

Alison Herlihy 34:40

I would say too, I mean, I would think it would be best practices to make sure you preserve the issue in the divorce. Because in my experience, obviously we've we've had some divorces that have lasted years, but it seems like more often than not, like a divorce is going to be over with probably sooner than if you're going all the way to a jury trial, right? And so I I would probably want to make sure if I know there's a tort coming down the pike that I I put in the divorce decree that we want language like preserving the right to pursue that claim in a separate case. So they can't argue, you know, everything between the parties has already been adjudicated.

Bryan Comer 35:17

That's right. That's right, because the the other spouse would uh take a run at that of like, look, this is a crazy.

Alison Herlihy 35:23

I would if I were them.

Bryan Comer 35:24

Absolutely. Yeah, absolutely. Yeah, that's a very good point.

Alison Herlihy 35:28

Um, have you worked with family law attorneys before on any overlapping cases?

Bryan Comer 35:35

Yes, yes. Um, and and I don't want to say thankfully, but but thankfully that they have been rather rare uh that we've had to do that. Um, but you know, anytime there's another lawyer who's representing my client, I try to work with that lawyer because we both have the same interest, and that is to do the best job that we can for the client. And so, you know, I think of that a lot as I don't want to put my client in jeopardy in another case by what we do in our case. And so it's always with me, I have a very team first approach on that. That, you know, we're all in this together to do the same thing, and how do we do that? We need to coordinate together, we need to talk together. How about you?

Alison Herlihy 36:15

Yeah, that's kind of like what I always tell people at my office. We're all rowing the boat the same direction.

Bryan Comer 36:19

Yeah.

Alison Herlihy 36:20

Um, yeah, because ultimately your goal is to do what's best for the client. And so I think it's a good idea to have for the attorneys to have like an open dialogue to make sure everybody is on the same page with that.

Bryan Comer 36:34

Yeah, because I mean, otherwise, you know, you're you're you're never adverse to that client. So you're, you know, it's always beneficial to to help each other out there.

Alison Herlihy 36:42

Yeah, I agree. Um, what do you wish family law attorneys understood better about personal injury cases?

Bryan Comer 36:49

I guess the one you just hit on, the timing. And, you know, we we really pride ourselves in pushing our cases to the finish line and doing the things that we have to do to get them ready and then get them queued up for a jury trial. The fact that we have juries that we have to deal with and very limited jury dockets and only a handful of judges that can that can hear them at any given time, uh, and that just the sheer number of the cases makes it more time consuming to bring our cases to trial. And I think a lot of times there's a misconception of, well, why hadn't this thing concluded yet? You know, the divorce is already happening up. It's like, you know, we're not dealing with a bench trial, and and you know, typically the insurance company's paying for a lot more stuff as opposed to the spouses having to pay uh that out of their pocket. And so the the litigation typically, in my experience, takes longer.

Alison Herlihy 37:39

Yeah. Well, because the insurance company's weighing out, like if I'm gonna have to pay out a multi-million dollar settlement, you know, it's to my benefit to drag the litigation out, right? Absolutely, yeah. That's gonna cost less than the than the recovery.

Bryan Comer 37:53

Absolutely.

Alison Herlihy 37:54

And then maybe you can wait out the other person, right? And that happens to a lesser degree in divorce cases. It can, yeah.

Bryan Comer 38:01

Yeah.

Alison Herlihy 38:02

Um, yeah, that's a that's a really good point. Um, well, for anyone who's going through a divorce who may also have a personal injury claim, what's the first practical step you'd recommend that they take?

Bryan Comer 38:15

Talk to your lawyer 100%. I'm serious. I mean, so many people think, particularly now, I mean, AI is so uh uh available, and they think, oh, well, I can go get this or let me punch this into TikTok or let me, you know, no, you've got a lawyer. Um, you can't go down there and do a do the job yourself. I mean, you can do a pro se thing, but you're never, you know, ever going to have the same kind of results as if you you hire a lawyer who's competent and who knows what they're doing and is gonna bust their tail for you. And so, you know, that's the main thing is, you know, we deal with, as you do too, we deal with people at their absolute lowest point. They've had the worst thing ever happen to them, um, absent, you know, going through, going through a divorce. And so, you know, it's always a good idea to to just take a breath. And I always tell my clients, let me take this off your shoulders, let me, you know, be your advocate and do my job and you heal. And so that's that's kind of the same thing as if if you do have it, that's what I'm here for. Okay. And while I'm not gonna go handle your divorce, I'm gonna get them to somebody like you. And I do send, you know, people to see you, um, and you know, so that they can make sure that they're protecting themselves.

Alison Herlihy 39:32

Yeah, I mean, I think it's important um when a client is choosing a lawyer that they they find somebody that A is a good fit with them because everybody's not a good fit with everybody, right?

Bryan Comer 39:43

Right.

Alison Herlihy 39:44

But B, you know, you want to pick somebody who, like you mentioned in the very beginning when we first started talking, you want to pick somebody who knows what they're doing in this practice area.

Bryan Comer 39:53

That's right.

Alison Herlihy 39:54

You know, that's right. Um, it's like that saying, you know, you're a jack of all trades and a master of none, right?

Bryan Comer 39:59

Exactly.

Alison Herlihy 40:00

Um well, how can you how can a client protect their legal rights without jeopardizing either case?

Bryan Comer 40:07

I mean, same kind of deal. Take a breath, don't do anything rash, don't go, you know, rage, do something, whatever that would be, you know, deleting stuff, tearing stuff up, like just don't post about it on social media. Oh, stay off of social media. I mean, you know, it's the old deal about the text message, right? Don't ever send a text you don't want on the front page of the New York Times. Right. Um, you know, same deal. I mean, just it it and it's it's hard. It's easier said than done. I mean, I get it. Like you're you're hurt, you're wounded, and all of that, like. But don't, don't lash out. Take a breath, go inward, talk to the people who love you. Uh, you know, lean on people for support, the people who are there for you, and and just don't lash out or do anything rash for sure.

Closing Thoughts And Resources

Alison Herlihy 40:55

That's great advice. And that's great advice for divorced clients too. You know, it's because it's, you know, you're not, you're not in your rational mind when you're going through something that difficult. And it's easy to make impulsive decisions and do things that maybe aren't in your best interest in the long term. And so I always try to tell clients like that's the mindset you need to get in. Like, is what I'm about to do gonna help the me I want to be in five or 10 years from now? And if the answer is no, you don't need to do it.

Bryan Comer 41:23

Right.

Alison Herlihy 41:23

You know, well, Bryan, thank you so much for sharing your insight today. It really highlights how important it is to um handle personal injury claims and divorce matters strategically and with the right guidance and and expertise. Thank you again.

Bryan Comer 41:37

No, thanks for having me. I really enjoyed this.

Alison Herlihy 41:39

Yeah.

Intro/Close 41:41

Thank you for tuning in to the Herlihy H Family Law Podcast. Remember, you don't have to face family law challenges alone. Visit Herlihy Family Law.com or call two five one four three two seven nine zero nine to learn more.