Wrongful Death of a Child: Apportionment of Proceeds Between Divorced Parents

Anyone who has practiced law for any period of time in the area of Serious Injury Litigation unfortunately comes across cases where a child has been killed as a result of the negligent act of a third party and the cause of action resides in divorced or separated parents. These cases not only are tragic, they can be very sad and/or messy.
The law has long been in Georgia that where parents are divorced and their unmarried child dies as a result of a negligent act of another that either parent may bring a cause of action for the wrongful death of their child on behalf of the other. If there is later a settlement or recovery from a jury, the law further provides that the proceeds from the case shall be divided between the divorced parents on an equitable basis. If the parents cannot agree on how the money should be divided, then in that event, a judge shall conduct a hearing, allow each parent to have the opportunity to be heard and produce evidence regarding that parent’s relationship with the child and then determine the percentage of the judgment or settlement to be awarded to each.
O.C.G.A. § 19-7-1 provides that in a case where parents are divorced and there has been a recovery for the wrongful death of their child that the judge in such a case, where the parties cannot otherwise agree, shall consider each parent’s relationship with the deceased child, including permanent custody, control and support, as well as any other factors found to be pertinent. The judge can decide whether each parent should receive 50% of any such settlement or recovery or whether one parent should receive a greater percentage than the other. The judge’s decision according to Georgia law “shall not be disturbed absent an abuse of discretion.”
Regrettably, when there is the wrongful death of a child, and the parents have been divorced, old wounds may surface which may make it difficult for such parents to work with one another on an equitable basis particularly under such tragic circumstances. If, for example, a child is killed while in the custody of the primary parent, typically the mother, it is not unusual for the father to seek separate counsel trying to protect his rights if the father and the mother have a poor post-divorce relationship. We have seen this regrettable situation many times and often times it is difficult to get the parents in such tragic situations to work with one another to resolve their differences. Typically, such cases are resolved by agreement, but like many other practitioners in this area, it has been necessary for our firm to file petitions asking the court to intervene and make the decision.
Naturally, the parent most involved in the child’s life and the parent who has provided most of the financial support for the child will have the sympathy of the court in deciding how the proceeds from a wrongful death should be divided. However, any parent who has not abandoned the child previously is entitled to participate in the recovery from a wrongful death action. Presumably, where parents are equally involved in a child’s life, they will equally share in a wrongful death recovery. We have seen cases where there is a 50/50 split where some parents receive nothing based on abandonment and where other non-custodial parents receive a smaller percentage based on little or no contact with their deceased child over the years. What is particularly unseemly in these tragic circumstances, however, is when an absentee parent who has little or nothing to do with the child retains outside counsel and then seeks to “extort” a financial settlement from the tragedy simply because of their biological relationship to the child with whom they have had virtually no contact. The wrongful death is tragic enough but when there is a mercenary attempt to participate in a wrongful death recovery by the absentee parent, obviously, the tragedy is compounded.
Any parent who is divorced and who is faced with the incredibly difficult situation of dealing with the wrongful death of their child is already burdened enough by the tragedy itself. Having to deal with an absentee ex-spouse who has had little or no contact with the child usually adds to the trauma. In such cases, the attorney truly has to be sensitive, not only to the tragedy, but also to the emotional aspects surrounding this issue. In these sad cases, the term “counselor at law” takes on a rather unique meaning.