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Health insurance issues in your divorce case

September 2018 | Allan E. Fogel, Esq.
If you are in the midst of a divorce proceeding or contemplating divorce, one of the most important issues to be considered is health insurance. You should bring this issue up and discuss it with your divorce attorney at the initial consultation.

If your health insurance is through your spouse’s employer, you will need to obtain health insurance for yourself once the divorce is final. It is very important there is no gap in coverage, so you must deal with the issue early in divorce negotiations. The laws regarding health insurance are straightforward. Once divorced, you cannot stay on your ex-spouse’s health insurance – but your children can and probably should (although who will pay the premiums for them should be discussed).

When a divorce decree is signed by the courts, the individual who has the insurance policy is obligated to notify their personnel or human resources department immediately. That notification will cause the employer to send COBRA enrollment information to the employee’s former spouse.

Once the divorce is finalized, the non-employee spouse can qualify for COBRA coverage; however, this coverage is temporary and lasts only up to 36 months (and just 18 months in some instances). COBRA coverage can be quite expensive, so an alternative option may be to obtain coverage through your own employer if it is offered.

Paying for the cost of the coverage for the spouse who is now required to obtain their own coverage is a negotiable item in any divorce case. In addition, the cost of the insurance is one of the factors a court may consider in determining the amount of maintenance (alimony) to be paid by one spouse to the other.

One of the main reasons why some couples now opt for a legal separation instead of a divorce is to continue existing insurance. However, if you do decide to legally separate rather than divorce, you will want to tread carefully. Some health insurance companies view a legal separation as essentially the equivalent of a divorce, and will therefore not continue coverage for a separated spouse.

The Affordable Care Act still offers options for coverage in a number of states, and quotes for the cost of coverage can be obtained through exchanges in most states. Many people with pre-existing conditions who previously had to select COBRA can now opt for less expensive coverage with an ACA plan, which may not refuse coverage or charge more for it due to a pre-existing condition.

If you have any questions about the matters discussed in this article, please contact your Legal Service Plan’s National Legal Office at 800-292-8063 or 631-231-1450.

Allan E. Fogel practices Matrimonial and Family Law with the Law Firm of Feldman, Kramer & Monaco, P.C. in Hauppauge, NY.