Are divorce settlements fair after a brain injury?

You’re considered equal, but is it fair?

In the UK both partners in the marriage are treated equally, and so when marital assets are divided up, both people have to be in the position of being able to have a reasonable life. That means the courts will try to make it so both of you can afford to live and try to make sure you both have enough money for a new home. That sounds pretty fair, but what if the majority of the assets is your compensation which was supposed to pay for your therapy, care and loss of earnings for the rest of your life? Suddenly divorce can mean it’s even more difficult to cope as a brain injury survivor. 

The law does offer some protection (albeit a bit flimsy) but only if you have planned ahead to ringfence your compensation package in the event of a legal separation. Your first option is to put the money into a trust which can be accessed as you need it, although this does carry a monthly fee. It makes it less likely to be considered a marital asset so it could avoid it being a part of your divorce settlement.  You can set up a trust later if you wish, but if you do and suddenly ask for a divorce, it will be seen as a cynical move. The court will say you only opened the trust knowing that it was likely that you would motion for a divorce and that the trust was your way of hiding martial assets. Therefore, it will only has the chance to protect you if you move it into a trust after it’s been issued to you and the marriage continues for a significant time thereafter. However, as trusts are often used as a way to manage your money for a number of other reasons, a Judge still might decide to consider it a marital asset regardless. The second option is to have your partner sign a prenuptial or postnuptial agreement where they sign away any claim to that money. These work in theory, but they aren’t really part of the law here so it’s up to the Judge in your case as to whether they want to take it as read. Therefore, this method is not a guaranteed way to protect your money either, although most Judges probably would look favourably on it.  

But is it right that we have to even try to make decisions about our future in this way?

When claimants are issued with their compensation package, they are given information about trust funds. Unless they have an appointed power of attorney set up, they are left to decide if they want to use a trust, or just have the money deposited into their bank account. However, it is well known that often survivors struggle with decision making, so should it be up to them to make such an important choice? Leading brain injury charity Headway explains how survivors struggle in their factsheet Difficulties with decision making after brain injury: 

“People can be affected in different ways – some survivors may find it hard to make a decision at all, finding that even ‘simple’ decisions, such as what to wear, become very difficult to make. Some people become impulsive, making hasty decisions, apparently acting without thinking things through. Some people may find it difficult to think through the consequences of an action and so make decisions that are not in their best interest. Poor judgement in relationships, with money or in business can have devastating consequences for the brain injury survivor and their family. Some survivors may make a decision and have a plan of action, but it can still be difficult for them to follow through with the plan. It is as if their intention, or goal, becomes neglected. This can sometimes be because they become distracted by other tasks or activities. They may ‘forget’ to do things, not because they have completely forgotten about what needs to be done, but rather that it is difficult for them to keep the task in mind, such as taking medication or passing on a message. Self-awareness can also be affected by brain injury, so that the survivor is not aware of their problems. This is known as lack of insight. The survivor may fail to achieve important tasks, and others may consider their decisions as bad judgement. One of the first challenges to overcome is therefore related to the survivor achieving a degree of self-awareness and understanding of the problems they are experiencing.” 

Personally, I declined to use a trust fund and currently I’m not married. I’ve been with my partner James for 12 years (and counting) and I’m still waiting for him to pop the question! If he ever gets around to it, I guess I would have to ask him to sign a prenuptial, even though I trust him with my life and don’t think for a second that he would ask for half of my money. I didn’t put my money into a trust because I wanted to have full access to it and didn’t want to pay a monthly fee to those who would manage it. But if I’m honest I probably didn’t put that much thought into it. I went for the easy option, but whether it was the right decision is another question. 

Why didn’t anyone even test if I was capable of making that decision?

In the UK we are allowed to make our own decisions as long as we are deemed to have capacity. After witnessing my Dad got through the test several times as he deteriorated with Alzheimer’s I know more about this process than most. The test looks for your comprehension in general rather than if your decisions are good. You are allowed to make “unwise” decisions if you are deemed to have capacity and name the possible consequences of these actions. And I was never asked to complete this test as a survivor of a serious car accident, so I’m not sure how many brain injury survivors ever have their capacity accessed. Therefore, even if the next person thought it was “unwise” for me not to put my compensation into a trust, no one had even questioned if I was fit to make that decision. 

Here’s my question to you: 

Do you think it’s right that brain injury survivor’s compensation can be divided up in divorce? Or should the government change the law to protect the person the money was intended for? Currently most MP’s would argue that as there are options in place that we can choose to use i.e. trust fund or nuptial agreements (despite the fact that these are not a guarantee either), there isn’t much appetite in government to make any changes.  

I have to say that I personally don’t think compensation money should be considered a martial asset. I find it insulting that I either have to pay someone to manage my money or ask my loved one to sign something that might not even stand up in court. What a great way to enter married life, it’s like saying “I know this isn’t going to last and I definitely don’t trust you.” If the law was changed so you didn’t have to go through this process, that can of worms wouldn’t be dumped all over you. But maybe you have a different perspective on it. I’d love to hear what you think. Maybe you are the spouse of a brain injury survivor, how would you feel if you were told you couldn’t have the compensation package considered in your divorce? Maybe you gave up your career to care for them and therefore a divorce that doesn’t include that money would leave you with next to nothing. Tell me, I want to hear everyone’s side of the story.