I'm not sure it's a constructive trust case. If he recovers on his PI case, Child Support Guidelines clearly allow for such recoveries as being utilized for "income" to determine child support. Not sure, but my guess would be that it could be the basis of alimony payments as well.
Obviously, there's no ED.
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Original Message------
For those who don't know... The "black hole" concept relates to a case (Carr v. Carr) where a Husband died during the divorce proceedings and had willed everything to his kids (cutting Wife out). Because he died, the divorce action terminated and Wife was therefore not entitled to alimony nor equitable distribution. Because he'd filed for divorce, Wife was not entitled to the elective share (she could be disinherited). Wife was therefore left out in the cold - would have received zero in spite of the long term marriage. The Court imposed a constructive trust to avoid the injustice.
My situation: Husband has a permanent alimony obligation (wife with MD who has four kids, one of whom is autistic). Husband is injured on the job as a result of motor vehicle accident where he was clearly not at fault (accident was captured on video). Husband lost his career and is on disability.
Husband has a personal injury suit pending. The insurance coverage (commercial driver) is well over $1.1 million.
Husband files a motion to reduce support. Wife cross files for a constructive trust against the lawsuit proceeds.
The trial court reduces Husband's support since he's now disabled, but denies Wife's request for a constructive trust, saying that the personal injury suit "is still too speculative."
Wife is in the equivalent of a black hole. The purpose of the suit is, obviously, to make Husband whole for his injuries. So, if he gets $750,000 representing what he would have earned, he keeps it all, whereas if he'd not been injured and had earned that $750,000 over time, Wife and the kids would have received roughly 19% of it as child support and alimony.
The appeal has been filed. If anyone has an on-point case better than Carr, I'd highly appreciate it. And/or -- if anyone knows a law student who wants to do some legal research on it, please advise.... client is of limited means at this point and I'd like to stretch the legal research dollars (thus my posting it here).
Thanks.
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- Dave
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
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