Divorce Mediation Blog

Spousal Medical Insurance After Divorce: A Priority

Wednesday, August 08, 2012

Many, many years after Massachusetts’ (pre-Romney) groundbreaking effort to provide medical insurance for non-employee former spouses beyond the rights provided by the federal COBRA laws, we remain the most advanced state in this regard; but not without our own continuing uncertainties. In the most general terms, COBRA allows a divorced heterosexual person (don’t forget the Defense of Marriage Act: it is, regrettably, still national law) to buy continuing health coverage through the other spouse’s employer plan for a period of up to three years post-divorce only, at a cost of 102% of the cost of an individual plan member. Massachusetts, by contrast, offers an indefinite period of coverage at no cost beyond that required for the employee spouse to cover himself and children under a family plan without a fixed limitation of years; and when child coverage is no longer necessary, the non-employee may still have coverage on the family plan if the employee has not remarried, without a time limit. If the employee spouse marries another person, the former spouse may still be covered at the cost of an individual employee, by use of a rider. The non-employee spouse loses these rights whenever she remarries.

Yet, when the law was enacted, it had a loophole that has not, to this day, been closed:  self-insurance.  The law is an insurance statute and not a generic healthcare provision, so employers who choose not to buy an insurance product for their employees, but instead pay defined medical costs themselves, are exempt for the law, even if the hire an insurance company to provide administrative services to help run their internal plan.  It is likely that self-insurance employers become “insured” for the law’s purposes if they buy “stop loss” insurance (that is, if costs go above a certain amount, an insurance company steps in to cover the excess – think catastrophic coverage for the employer), but this information difficult to ascertain, uncertain and costly for the consumer to enforce.

There also remains a lack of clarity about what is a Massachusetts employer for purposes of the law. Many companies who do business here, but are based elsewhere, continue to contend that their obligations are covered by the (lack of) law to trump or augment COBRA in their home state. There is also uncertainty about what happens to the non-employee former spouse’s coverage if the employee changes jobs or moves out of state. To make matters more difficult, many company human resource departments appear, genuinely or not, to be hearing about our laws for the first time when counsel or client inquires.

For all of these reasons, it is a priority in any divorce action for the parties to gain and share the greatest level information possible about the employee spouse’s coverage, at the earliest time available in the divorce process. This information is all spelled out somewhere in paper or digital format; and if it is left to be treated as a last minute detail of divorce negotiation, or as one that is informed by casual representations only, disastrous and unanticipated consequences can occur. Sometimes, significant time must be invested in communicating with the employer about its state law obligations before they will be acknowledged and honored. In some cases, litigation, or the suggestion of same, may even be necessary.

As always, knowing is essential; and time is an ally.

Get e-mail notifications of new blog posts! Enter email address below.:

Delivered by FeedBurner

other articles

recent posts


medical benefits divorce arbitrators support orders divorce judgment Baseball Players separation Act Reforming Alimony in the Commonwealth divorce lawyers mediator divorce arbitration Baseball Arbitration divorce agreement The Seven Sins of Alimony conciliation family law arbitrator mediators family law health insurance Obamacare LDRC Chouteau Levine family law mediation pre-ARA alimony fraud divorce arbitrator rehabilitative alimony mediations disputes resolve disputes Levine Dispute Resolution Center LLC med/arb Massachusetts Lawyers Weekly Alimony Reform Act health coverage arbitrators alimony alimony law Family Law Arbitration litigation divorce mediators MLB labor agreement Levine Dispute Resolutions Levine Dispute Resolution General term alimony annulment Massachusetts divorce lawyers Boston dispute resolution divorce process divorce and family law alimony orders DOMA divorce litigation lawyer-attended mediation Massachusetts lawyers Massachusetts alimony mediation traditional negotiations Divorce Agreements Cohabitation lawyers family support self-adjusting alimony divorce mediations Uniform Arbitration Act Child Support Guidelines COLA Major League Baseball Arbitration divorce mediation Massachusetts alimony and child support Matrimonial Arbitration SJC Massachusetts divorce mediators arbitration divorced divorce and family law mediators IRC §2704 Divorce family mediation family law arbitrators Baseball Defense of Marriage Act divorce mediator facilitated negotiations arbitrator alimony reform legislation Massachusetts Alimony Reform Act Levine Dispute Resolution Center family and probate law disputes special master private dispute resolution alimony statute Same Sex Marriage lawyer how baseball arbitration works Massachusetts med-arb high-risk methodology Self-adjusting alimony orders child support