Most couples during marriage have a family health insurance policy together, usually through one spouse’s employer. While a court can order a parent to continue to maintain a policy of health insurance for the parties’ children, a court lacks the same power with regard to a former spouse, as the law does not allow an insured to maintain a former spouse on his or her policy. So what is that former spouse to do?
Fortunately, the law today is much more responsive to the health insurance needs of a former spouse. Thanks to a law known as COBRA, any person who has a policy of health insurance terminate because of employment or divorce may choose to retain the current policy for up to eighteen months at the same cost to the employer – which often means that COBRA will be more expensive to maintain. If a spouse wants to pursue this route and has concerns about affordability, that spouse can ask the court to order the other spouse to pay some or all of the cost of COBRA.
Because COBRA is meant only as a stopgap, the former spouse needs to explore other methods of becoming insured. Before the Affordable Care Act (ACA), this could be quite a problem for individuals with chronic health problems that made them essentially uninsurable. Now, no insurance company can refuse coverage based on a preexisting condition or penalize an insured by charging a much higher rate. The former spouse may look to his or her employer for coverage as a first option. Should that avenue not be available, the former spouse would have to look for a private individual policy, either through an insurance broker or through the insurance exchanges created by the ACA. Each option has its own advantages and disadvantages. The former spouse should decide what would be most important in a policy – doctor preference, the size of the network of referrals, the amount of coverage for hospitalization, the size of the deductible, and the premium for the policy.
If a former spouse is of an eligible age or has a disability that would qualify for Medicaid, that option should be explored. Some supplemental coverage may also be required.
While a court has limited options to protect a former spouse with regard to health insurance, the parties can by agreement expand those options. A proactive spouse concerned about continuity and cost of coverage should examine different options and decide on what path would be preferable and, if not affordable, suggest that the other spouse agree to cover some or all of the cost of a new policy, which could be accomplished in different ways, including as maintenance. Also, the proactive spouse would do well to examine a “lock in” policy that would guarantee coverage at a specific premium (these may be harder to find in light of the ACA).
Given that many former spouses have chronic health issues that require coverage beyond insurance, it would be wise for such a spouse to establish the cost of full medical care to the court as part of an award of maintenance or seek the same through a separation agreement with the other spouse.
Finally, a former spouse should consider defining coverage to include dental, vision and other aspects of needed care.
If you have questions about health insurance coverage after divorce, contact us – we can help.