What can you do if you need continuing health insurance and divorce threatens to take that away?
By WomansDivorce | Answers by Brette Sember, J.D.
Many women facing divorce have a lot of questions about health insurance coverage. They need information about whether their children will continue to be covered. They also wonder when they can drop their ex from their insurance plan, who is responsible for paying the premiums or if they can stay on their husband's insurance plan.
If you are facing such a situation, the following input from our legal expert can help you understand your options.
Health Insurance During a Separation
Divorce Questions Regarding Health Insurance
Health Insurance Issues after Divorce
Court Ordered Medical Insurance for Children
Brette's Answer: You have the right to continue the health care coverage you had under your spouse's plan through COBRA. Concerning how a legal separation will affect your current coverage, some employers and insurance companies will stop coverage on the date of separation, as opposed to the date of divorce. An attorney can advise you how to handle the situation and what your options are.
Tip: If you need legal help, find out how you can connect with local attorneys.
Sheila's Question: We have lived apart for 4 years even though we’re technically still married. My health insurance is through my husband's employer. He is suddenly about to retire. When he obtains health insurance for himself, does he have to include me on policy?
Brette's Answer: Spouses never have to include their spouses on their policies. You can seek spousal support and request insurance as part of it. Talk to an attorney.
Cheryl's Question: If you separate, you are still considered married. But my husband says that if we separate it is looked at as a divorce by his employer? How is that legal?
Brette's Answer: In some cases health insurance and benefit plans treat a separation the same as divorce.
Jean's Question: Do I have to keep health insurance on my spouse? We have been legally separated for over 4 years and he has been dragging out the divorce to keep health insurance.
Brette's Answer: You are not obligated to continue insurance for your spouse unless you've been ordered by a court to do so. If you stop it, he could go to court and ask that it be continued and the judge would have to decide at that point if you are responsible for it.
Laura's Question: We are divorcing and it was agreed at temporary orders that he would keep me and the children on health insurance. I just received notice that he took us off insurance anyway. Now what do we do and why is he being so mean?
Brette's Answer: File a petition for a violation of the order with the court. He'll be required to put you back on and be responsible for any costs you incurred because of the removal. I can't answer why he's being so mean, other than to say that people going through a divorce often act in ways you would never expect nor anticipate.
Marianne's Question: We are filing for divorce and he took me off his insurance plan at work. He told me I must get health insurance for myself because he has been put on notice by his company "that what we are doing is illegal" (meaning my being insured while we are not living together). Can he legally drop my from his insurance before the divorce is final?
Brette's Answer: It actually varies from state to state and employer to employer. Some employers and insurers will stop coverage as of the date of separation, not the date of divorce. You can call the HR department at his company and ask what the rules are. Even if you are not allowed to stay on his plan, you are always entitled to continue health insurance through your spouse under COBRA if the company has more than 20 employees. You should consult an attorney who can advise you how to handle the situation and what your options are.
Heidi's Question: My legal separation was final a month ago. As part of the agreement, I am to keep my ex on my health insurance plan through my work. NOW, the HR manager at work informed me I cannot keep my ex on my insurance and have two choices, COBRA or independent. My attorney said he will look into it and now wants to charge me $500.00 just for the phone calls/research he should have done to begin with! Should I have to pay for a job twice that should have been done right the first time? What are my options to get this straightened out?
Brette's Answer: You would have had to pay for the time to address the issue no matter when it was handled. However, I am surprised your attorney did not know how to address this common issue. It might be simpler for you to pay your ex alimony and let your ex find a policy on his own. Discuss this with your attorney.
Patty's Question: I haven't filed for a divorce yet, but I'm going to. I am the one who carries the health insurance on my husband through my employer so it is deducted from my check. I need this money to live on since he does not provide me with anything. Can I stop his health insurance before I file for divorce?
Brette: You can, but it's likely the court might order you to continue it - it depends on all of the financial circumstances. It's best to confirm this with your attorney who can advise you what is required in your state. What you could consider doing it asking your husband to pay you the difference between a single policy and a family policy.
Amanda's Question: If my husband is covered on my employers plan and he doesn't pay his doctor's/hospital bills, do I have to pay those? How does that effect my coverage? I have filed for divorce but it's not close to being finalized.
Brette's Answer: Copays and deductibles are paid to the individual doctors not the insurance company. It has no impact on coverage. The adult incurring them is responsible.
Cat's Question: I've been separated for 6 months and we are now in the process of a contested divorce. I just found out that I am pregnant by another man. I have my husband's insurance and he won't drop me, but this divorce can take up to 9 months before it's over. What can I do if I need to go to the doctor?
Brette's Answer: The fact that the baby is not his does not affect your right to be covered by his insurance. Stay on the insurance and get medical treatment. When your divorce is finalized you will have the option of continuing it through COBRA.
Nicole's Question: My husband has started the process of filing for a divorce. We have two children and I am pregnant with the third. My oldest is not his, but he carries insurance on her. He is telling me that once he finalizes the divorce my oldest and I will lose his insurance. Is this correct?
Brette's Answer: You can continue the insurance through a federal law called COBRA. The court might even order him to pay the premium.
Jennifer's Question: I am a 2 year breast cancer survivor, and feel trapped in a bad marriage. I want to leave, but fear that it will cost me my life if I do not have health insurance. I will graduate soon with an associate's degree, and would like to seek a permanent job after graduation. I guess my question is, do I have any legal rights regarding health insurance coverage for a pre-existing condition?
Brette's Answer: This is an important question and really draws attention to why health insurance is a critical issue in our country. You have a few options.
First of all, you need to understand the Health Insurance Portability and Accountability Act allows you to obtain insurance on a continuous basis even if you have a pre-existing condition. After a divorce, you can continue under your husband's policy under COBRA for 36 months. You will have to pay the costs of the premiums, but will able to continue the insurance under his plan at the costs your employer gets it at. Once that runs out, you would need to find another health insurance plan.
This is also a qualifying event for you to elect coverage under the Affordable Care Act if you would prefer that. There are other options as well - such as state sponsored plans or joining a chamber of commerce or other professional organization to obtain coverage. Many states have health insurance available on an income-based sliding scale, so you may be able to obtain affordable insurance that way. If you qualify, you could also obtain Medicaid, however, this usually excludes the "working poor". Once you graduate, you may be able to find a job with benefits. Talk to the career counselors at your school about where to look for a job.
Cathy's Question: I was married for 22 years. Recently, I had surgery and have a lot of ongoing health problems which will require lifetime medication. Now I may have to do without insurance, and he wants to quit paying for my medications. What can I do to make sure my medical bills get paid?
Brette's Answer: You can ask the court to order your ex to pay for your health insurance, or your medical bills. The decision will be based on your situation, but health insurance is most definitely something courts will order as part of alimony. Talk to your attorney.
Susan's Question: I had gastric bypass 6 months ago and my biggest worry is health care. My husband stated he would be willing to keep me on his insurance after the divorce. If it is court ordered, does the insurance company have to comply? Or will I be forced to pay the COBRA cost instead of what he currently pays for the policy?
Brette's Answer: He's not permitted to keep you on his insurance policy after divorce. The court can't order that. They could however order that he pay for your insurance.
Lisa's Question: I want to get a divorce and think it will be amicable. Will cobra keep the cost of my medical premiums the same? Can my husband keep my kids on his insurance if he wants to?
Brette's Answer: The thing to understand about paying for health insurance is that usually the employer contributes something towards the cost of the premium. For example, the health insurance company might charge $1000 a month and the employer might pay $300 of that. As an employee, your family pays the remaining $700. When you switch to COBRA coverage, the employer lets you pay the rate they have negotiated with the health insurance company, but you pay the employer part plus the employee part. So in this example, you would have to pay the whole $1000 each month yourself. If it is just you that is going on COBRA, you would pay the full rate for an individual. Your children can be covered by your spouse on his policy moving forward, but you will want to be sure to ask for this in your divorce.
Karen's Question: My husband walked out on me 2 months ago, so I took him off my insurance policy. Now his attorney is saying that he has to be put back on. I was also told that he doesn't have to help me with any of the household bills because the house isn't in his name. Could you give me some advice?
Brette's Answer: First of all, his attorney does not get to dictate what you do. Only the court can order you to do anything. It is possible you can be ordered to put him on your insurance, but that's for the court to decide. Both the health insurance and the bills are going to be an issue of spousal support and that's going to depend on the entire financial picture. You should get an attorney to represent you in this.
Linda's Question: Do I have to use his health insurance or can I choose to pay out of pocket? He has a habit of calling the staff at the doctor's office and asking for personal information and if they don't give it to him, he will pester them until they ask him not to.
Brette's Answer: If you are talking about your own health insurance, you can do whatever you want to - get your own policy or just pay out of pocket. If it is for your children, you need to use whatever the court has ordered. If there are continued problems, you can file for modification of the order and your attorney can ask the court for some specific protections to prevent this.
Melanie's Question: I carried the medical insurance on my husband during our marriage. Am I required to cover him after the divorce is final? It was not court ordered.
Brette's Answer: No. After divorce your spouse can continue the coverage through COBRA. If you are not ordered to pay for his insurance, it is not your responsibility.
Cheryl's Question: How long do I have to wait to drop my husband from my medical after the divorce papers are filed?
Brette's Answer: Generally, once the divorce is finalized, you remove the spouse from the policy.
Sandra's Question: It never mentioned in our final divorce decree WHEN my husband is off of my health insurance. When there is an omission like that.... is there a rule to default to? We can't figure out when his coverage ends.
Brette Answers: You'll need to consult with an attorney about the wording in your decree. In general, you can no longer keep him on your policy once you are divorced. You need to check with the HR manager -- some policies end coverage at date of separation or at other dates. He has the option of continuing the coverage through COBRA. Who pays for that would be indicated in the decree. COBRA lasts 36 months. After that, he has to get his own policy. Again, who pays for that would be indicated in the decree.
Marlene's Question: My soon-to-be ex-husband is Union and part of his benefits allow him to 'bank' overtime hours for health insurance coverage (i.e. you must work x hours for coverage and the excess goes to bank for future). He currently has one year's future coverage before he would have to purchase COBRA. Would I also be covered for that year, or should it be considered an asset to be divided? I would prefer the coverage, of course.
Brette's Answer: You need to talk to an attorney. Your right to health insurance is governed by COBRA which gives you a set number of months you can be covered after divorce. However, the hours he is banking may have financial value which can be addressed in the property settlement.
Loubna's Question: Can I stay on my husband's policy after divorce if he doesn't tell his employer that the divorce is finalized?
Brette's Answer: Health insurance is only available to spouses and children. Once you are divorced you are not eligible. You can however elect to continue coverage under COBRA for 36 months after the divorce by paying the cost of the insurance.
Leslie's Question: What recourse can be taken by my ex-husband's health insurance company if I were to remain on his plan after the divorce due to ignorance of the laws?
Brette's Answer: Both of you could be liable for fraud. Your husband would be committing fraud by failing to inform the insurance company, and you would be considered an accessory by continuing to use the insurance.
Angie's Question: I've been divorced for 2 years. At the time I was on his company medical policy and I wanted to purchase the spouse COBRA. The company HR department said he could continue carrying me on his policy. I was skeptical about it, but they were sure about it so I continued on his policy. I asked our divorce lawyer last year, and he said it should be ok if the company willing let me be on the policy. Are they right? Can I use the coverage to go to the doctor?
Brette's Answer: If you have the coverage you can use it. Most employees and insurance companies will not allow a divorced spouse to continue on the policy, but if it's being permitted in your case, that's great.
Monica's Question: My sister divorced three months ago. She was trying to get insurance coverage to replace being on her husband's policy (because the COBRA premiums were more than she could afford) when she broke her arm. Now she cannot get insurance and HAS to do the COBRA. She was never trying to commit fraud but was only having a very hard time getting coverage and was told to not cancel insurance before getting a replacement policy.
Brette's Answer: If she didn't cancel the COBRA it isn't a problem. Pay the premium and she'll have coverage.
Crystal's Question: I am totally freaking out. My ex-husband is a federal employee and we were divorced six years ago. He agreed to cover me on his insurance until I could get through nursing school and obtain my own insurance. I called the insurance company today and they stated that I should not have been covered and I have to pay back the medical bills from the last six years. What is the process for this? It was an ignorant mistake but a mistake none the less.
Brette's Answer: Unfortunately it is true that you cannot remain on the policy after divorce. However, you should be able to convert it to a COBRA policy for a portion of those years. You will need an attorney who can negotiate with them - I'm sure some kind of settlement can be reached.
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