How are medical expenses shared in divorce?

Posted on Aug 28, 2019 by Katie Carter

Whether you’ve got some kind of pre-existing condition, are generally accident prone (or your children are), or just worry about the unexpected, it’s a good idea to ask questions about how medical expenses are shared during and after divorce, especially if you and your soon to be ex husband have children in common.

Medical expenses can be huge, especially if you (or your children) already have a condition that requires medical treatment. For a lot of families, a broken arm or even a quick trip to the emergency room is a real budget buster. Though you’re happy to bear the brunt of the responsibilities where your children are concerned, you also know that your child’s father should be responsible for a portion of those expenses, too.

So how are medical expenses shared in divorce?

That’s such a great question. And, happily enough, I have pretty good answers to those questions. First of all, I’m going to divide your question into two categories: your medical expenses, and your children’s medical expenses.

Your medical expenses

So, the general rule of thumb is that, as far as health insurance goes, the party who is already supplying insurance to the other spouse will continue to offer the same coverage through the entry of the final decree of divorce. That’s pretty standard.

As far as unreimbursed medical expenses, though – those pesky little costs that aren’t covered by insurance, like copays and anything left over after insurance has been billed – are your separate responsibility. We’re talking about anything and everything – medical, dental, counseling, etc.

You could potentially negotiate an agreement where he paid a portion of that, but I’ve not actually seen that happen in real life. I think the way to offset those expenses, particularly if you have a pretty extreme amount as a result of a pre-existing condition, is to try to leverage spousal support  in your favor. But that’s a highly specific inquiry that would be based on each person’s unique circumstances, so you’d want to talk to an attorney about your likelihood of success and any other options you might have to offset those expenses.

Your children’s medical expenses

As far as your children are concerned, it’s a bit different.

Health insurance

One party maintains the health insurance, usually the party who is already doing so. The amount of money that party pays towards health insurance goes into the child support calculation, and it offsets the amount of support required.

So, if he’s paying for health insurance, he’ll get to credit the amount that he pays FOR THE CHILDREN ONLY (not for employee plus children, or employee and spouse and children – just the part related to the children) in the child support calculation.

Likewise, if you’re paying for health insurance, you’ll be able to use that credit.

What if we decide to waive or reserve child support?

It doesn’t happen particularly often, but occasionally I get a case where the parties decide to waive or reserve child support. Obviously, the children still need medical insurance, so there’ll still be a monthly cost to at least one party.

You have a couple of options. I think you should really look at the numbers here – the proper way to account for this disparity is to have child support awarded. But it is possible that you could also enter into an agreement where you agree to split the monthly health insurance premiums.

I had a case like this recently, and we had to look at the numbers really carefully. Both of the parties were extremely high wage earners, but their incomes were also quite similar. They decided to share week on/week off custody, so the difference in parenting time was negligible between the two. Mom was paying for health insurance, at a cost of nearly $400 per month for just the children. When we ran it in the calculator for child support, we got $263 per month, if I remember correctly – with the main difference being that mom was paying for health insurance. So, it’s not an exact 50/50 split of the health insurance costs, or, at least, it doesn’t appear to be. It might be a good idea to look at what you’d receive (or what you might pay) in child support versus what half of the monthly health insurance premium might be. It’s always a good idea to look at the numbers in as many ways as possible as you’re determining how these things should be split.

The children’s unreimbursed medical expenses

I get it. It can really add up, especially if you’ve already got a child with a pre-existing condition or special needs. Even if you don’t, children need a lot of things – from regular well child checkups to the occasional broken bone or stitches, accidents happen. And accidents can be costly.

In lots of agreements, I find that opposing counsel (especially when the husband earns more) will try to include that the parties will split the unreimbursed medical expenses 50/50.

But that’s not the law. The law says that the parties will split unreimbursed medical expenses pro rata – that is, proportionally, based on their incomes. What does that mean? Well, it means that if he earns 80% of the income, he pays 80% of the unreimbursed medical expenses. In cases where there’s a big disparity in income, this is a distinction that can make a huge difference – again, especially if your child has a pre-existing condition, special needs, or is particularly accident prone.

I would only ever agree to a 50/50 split if the parties incomes were equal, or if a pro rata split would mean that my client would pay more of the expenses. Again, it’s important to look at these numbers. Even if the distinction is only 60/40, it can make a big difference if there’s (heaven forbid!) a catastrophic accident or a bad diagnosis of some kind.

Can we change this later? What if he earns more?

Yes! Of course. Anything related to the children is always modifiable based on a material change in circumstances, so if he’s earning more and his proportional share would go up, or if the health insurance costs change (like, say, you start paying for insurance instead because you got a new job and the benefits are better), you can definitely modify things. Either you reach an agreement, or you go to court and petition for a modification, if you can’t agree.

As far as medical expenses go, it’s really pretty straightforward. Though you may not like the answers (particularly where your unreimbursed medical expenses are concerned), knowing is at least half the battle because it can encourage you to ask specific questions and engage in conversations that will allow you to find solutions that take your concerns into account.

For more information or to schedule an appointment to talk to one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.