Any personal injury can be devastating to both the accident victim and their family. The entire family dynamic changes and the injured party may not be able to do what they did before.
One factor that isn’t always discussed is the accident’s impact on the spouse of the person who has been injured. But for a married accident victim, their spouse is generally the one who has to take up the slack when the injured spouse can’t do everything they did before. This is what’s known as “loss of consortium.”
What Consortium Means In Personal Injury
An uninjured spouse can bring this type of claim after their spouse is involved in an accident. Loss of consortium claims is a “derivative” claim, meaning that the spouse’s claim is dependent on the injured party’s personal injury claim, and is always made together. Most of these claims average about 10% of the personal injury award and are awarded when one spouse suffers a devastating injury that leaves them disabled or with debilitating long-term effects.
Many people believe that losing “consortium” relates to the sexual aspect of a marriage, including constraints. That’s true to a certain extent. A consortium can also include loss of love, companionship, as well as the sexual aspect of a marriage, which is known as “loss of the marital relationship.” This is the part that is difficult to attach a monetary amount to since the emotional aspect of a marriage is intangible.
The umbrella term “loss of consortium” includes much more, such as:
- Damage or strains inflicted on the relationship after the accident
- Loss of ability to participate in enjoyed activities, such as walking, bicycling, traveling, etc.
- At-home activities such as:
- Assisting in child care
- Handling specific tasks, such as housework or home repairs
- Helping the spouse with other specific tasks, such as driving the children to activities
- Other dedicated activities normally performed by the now-injured spouse
When one spouse has been seriously injured, he or she may no longer be able to take care of the at-home activities, requiring the uninjured spouse to either do them or pay someone to do them (i.e., hire a house cleaner and/or a handyman.)
Financial Consortium—Loss Of Support
These claims are over and above things like lost wages. This is the amount a wage-earning spouse would have contributed to the household earnings had he or she not been injured. The two factors a judge and jury will consider are:
- The amount of the spouse’s income
- How the spouse managed his or her money, and how much they spent on the household
If the spouse regularly contributed to household expenses, an award for Loss Of Support would be higher than if the spouse saved more, or spent more on themselves than the household.
The Last Word
Since New York abolished common-law marriage in 1933, only legally married spouses can bring a claim of loss of consortium. Domestic partners and same-sex partners do not have the option for this kind of claim.
A serious personal injury can cause severe problems in a relationship to the point of a couple divorcing. But if a couple separates and divorces before settlement or before trial, chances are the loss of consortium claim will be negatively impacted, and possibly ignored. There won’t be any award during the separation period, and of course, after the divorce is final. Many attorneys advise couples not to divorce before the end of their claim so as not to risk losing their derivative claim.
Hoffmaier & Hoffmaier—New York’s Premier Personal Injury Law Firm
A personal injury can happen anytime and anywhere in New York, leading to many different types of injuries.
Call us at (212) 777-9400 (or use our online contact form.) Hoffmaier & Hoffmaier is a family-owned personal injury law firm, with more than 26 years of experience helping New Yorkers after they’ve suffered injuries. Our contingency fee arrangement means we don’t get paid until you are, whether we settle your case or take it to court.