The Impact Of Divorce On Wrongful Death Actions

A divorce is traumatic in and of itself but becomes particularly tragic when either during the divorce or after its conclusion the wrongful death of a child occurs. In such circumstances, the wrongful death claim belongs to the parents jointly. Either one, therefore, has the right to bring the wrongful death claim but if one proceeds unilaterally in doing so, they do so in a fiduciary capacity, meaning that if they ever recover anything, they must hold the monies in trust until such time as a Court can apportion any monies awarded between the divorced parents based on their level of support with the child, their interaction with the child and other equitable factors.
Under Georgia law, if a child is killed due to the wrongful acts of a third party, such as a drunk driver, or a trucking company, the cause of action vests in the parents of the child. If the parents are in the middle of a divorce, this does not change the law. If the parents are already divorced, the law remains the same. In some such circumstances, both divorced parents get their lawyers and there is a race to the courthouse to see who files the lawsuit first. If one beats the other to the punch, the other may seek to join the case by formally intervening in the action. Since both spouses have a right to participate in the action, the difficulty this can cause is logistical because two separate law firms could be acting on behalf of the parents conducting redundant investigations and also having different views strategically as to how the case should be prosecuted and pursued. This can create a legal quagmire causing difficulties not only for both parents but also for their lawyers.
Insofar as is possible, the parties should work cooperatively together in pursuing a wrongful death claim of a child. If one proceeds all the way through a settlement or a jury verdict and ultimately obtains money, as indicated, that money must be held in trust and subject to equitable division by the court, unless the parties can agree among themselves how the money should be divided between them. While it might be assumed that a 50/50 split of any such recovery is the norm, there are many circumstances whereby such a split would not be just nor fair, such as situations where a father has abandoned a child and/or has failed to pay child support. As indicated above, these cases are particularly tragic and often difficult for all the parties. If a divorce has occurred, hopefully the parties will be mature enough to work together to pursue a common goal. If not, the attorneys for the respective parties will have to decide how to best work together to pursue that goal with an understanding that if there is ever a recovery, and a dispute over how the monies are to apportioned, that dispute must be submitted to a trial court for equitable apportionment.

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