Health Insurance and Unreimbursed Medical Expenses in Divorce

Posted on Jan 17, 2022 by Katie Carter


One of the scariest parts of divorce is losing health insurance. For a lot of people, the access to health insurance makes them stay in their marriage longer and even, after negotiating a separation agreement or going to court on a pendente lite and establishing temporary support, take longer to actually finalize a divorce.

I’m not here to provide a running commentary on health insurance in the United States except to say that it is profoundly expensive and, in many cases, difficult to obtain. If you don’t have a job that offers health insurance that you can just pick up, finalizing your divorce may feel a little extra alarming. Sure, you could get private coverage or a COBRA policy, but it’s even more expensive without an employer to subsidize somewhat.

And if you or your children have ongoing issues or a chronic medical condition, the fear is even greater. So, what happens?

Health insurance is one of the cut and dry issues in a divorce. Usually, the party who maintains the health insurance will be required to do so up until the entry of the final divorce decree. Usually, it’s the husband, we we’re usually able to get him to pay your portion of the premium, too, up until entry of the decree, though I have seen it where coverage is mandated but the spouse receiving coverage has to reimburse the other spouse for their portion of the premium – not the entire premium. In either case, as far as health insurance goes, it’s a pretty good deal, it’s just temporary.

Beyond that, there’s not much that we can do. It’s not a legal thing, or even a ‘my husband is a jerk’ thing (though he probably is, let’s be honest). It’s a health insurance company thing. Technically, you can only have a family member on a policy, and there’s all sorts of rules about what qualifies. Just like children age out of being able to be covered on a parent’s policy, an ex spouse is no longer considered a family member for the purposes of providing health insurance coverage. So, even if he wanted to, he could not continue to maintain you on his policy. The court can’t mandate it either.

Technically, in the divorce, you become legal strangers. You no longer have any connection to each other. You’re not family. And he can’t cover you on his health insurance.

I have seen it happen – though, mind you, this is rare, and I can only remember once for sure that I saw it – where a court awarded a higher amount of spousal support to a wife in order to help compensate her for the cost of obtaining her own private health insurance. It didn’t completely cover it; it was a fairly small amount. But, in any case, we look at your expenses, and that factors in when we determine an award of spousal support. So, be sure to shop around for some quotes and have an idea of what costs you’ll be facing when you head into your divorce litigation, so that we can be sure to include that on your income and expense sheet!

What about the kids? What about their health insurance?

The kids DO stay family members after the divorce. The way it works is that, either in your divorce trial or in your separation agreement, one or the other of you will provide health insurance. Usually, it’s whoever was providing health insurance before. There’s often the small caveat that it usually says something like ‘for so long as policy is available at a reasonable cost’, but there aren’t too often issues with griping over cost.

That doesn’t mean that the party who covers health insurance is responsible for paying 100% of the cost, though. The cost of the health insurance – the premium paid for the kids ONLY; again, we’re not talking about the entire premium here – is factored into the child support calculation. That way, you each pay your pro rata (or ‘proportional’ share, based on your percentage of the income). The formula automatically divides the cost of that premium between the two of you, so that you share the overall cost. Sure, it may come out of one of your paychecks, but the child support guideline calculation accounts for that cost.

What about unreimbursed medical expenses?

Unreimbursed medical expenses is the portion that you pay that isn’t covered by health insurance, and it includes copayments made to medical providers.
Basically, the law provides that you will share the children’s unreimbursed medical expenses pro rata – again, proportionally, based on your income. That means that if he earns 60% of the income and you earn 40%, you’ll only pay 40% of those extra costs.

I have seen many agreements where the parties agree to share these costs equally, meaning 50/50, and that’s fine, too – unless you’re earning significantly less than him. Since the statute provides for a pro rata share, if you earn way less you’ll want to opt for this – it’s what you’d get if you went to court and argued in front of a judge, so there’s not very much he can say to oppose this. (And, besides, if something huge happens, paying 30 or 40%, if that represents your pro rata share, could be a huge savings to you over having to pay 50%! Just think about the braces!)

What about MY unreimbursed medical expenses?

No, no, no – that’s not covered. I don’t think I’ve ever seen a case where a husband has agreed – though I suppose he could specifically do so – to pay the wife’s unreimbursed medical expenses up until the decree is entered, and certainly not after the divorce is finalized.

You’ll be on your own for these costs, I’m sorry to say. Again, though, that’s something you’d want to include in your income and expense sheet, if you have an idea of what that might cost. And, also, if you have a chronic or ongoing medical condition, that’s a factor we’d look at when we discuss spousal support – so, in a way, it’s still relevant, it’s just in a different way than this.

For more information or to schedule an appointment with an attorney, give our office a call at 757-425-5200.