How are unreimbursed medical expenses handled in custody?

Posted on Jan 10, 2022 by Katie Carter


Kids are expensive. Whether it’s the normal kid stuff – a little tumble at daycare, a broken arm, a skateboard accident – or whether you have a child with specific ongoing medical issues, medical expenses can be a big part of that. It can be expected or unexpected; more or less than you expect can be covered by insurance. There’s no limit to the number of things that can happen or the ways that the expense might impact you.

I’m not here to debate medical care or the cost of it in the United States, except to point out that, from a custody standpoint, it’s a shared responsibility between a mother and a father.

Does that mean that we each have a 50/50 responsibility for unreimbursed medical expenses?

Not necessarily – not unless you have an agreement that says that you’ll share these expenses 50/50, or if your incomes are exactly the same.

The way the statute reads, you’re each responsible for your PRO RATA (meaning, proportional) share of those expenses. So, if he earns 80% of the income, he’ll pay 80% of those expenses.

This is a sneaky little something that attorneys sometimes try to put in their agreements, hoping that unsuspecting (and unrepresented!) parties will sign. If your husband or child’s father is the higher wage earner, he may try to make it a 50/50 shared responsibility – and if you sign that agreement, you’ll be on the hook for paying more of those expenses than the law would otherwise require you to pay.

Your should pay for your proportional share of the expenses – unless, of course, you earn more. In which case, it’s totally fine to agree to pay 50%. (See what I did there?)

What’s an unreimbursed medical expense, anyway?

Unreimbursed medical expenses are those parts of medical care that aren’t covered by insurance. We’re talking copayments and anything leftover in those pesky little bills you get after you seek treatment.

Technically, the law says ‘medically necessary’ expenses, but that’s a low bar to meet. A lot of things are medically necessary.

Ideally, though, your agreement – if you have an agreement – would specify exactly what’s included. In our standard agreements, we include all types of medical care, including (but not necessarily limited to!) any medical, hospital, dental, orthodontic, therapist, prescription, or other health expenses, just to make it clear.

The court won’t be so clear. The court will say, simply, that you’re responsible for your pro rata share, and that’s it.

A major advantage of negotiating an agreement is the freedom to be able to include provisions that spell things out a little more, so that both parties go into it knowing what to expect. The last thing you want is for your child’s father to buck when you try to enroll the child in therapy or get him the braces that he needs!

What else can an agreement regarding medical expenses do that a court order can’t or won’t do?

A good question! You can do a lot more in an agreement than just spell out what types of medical expenses are ‘necessary’ and ‘included’.

You can specify how and when repayment will be made, in the event that you’ve paid more than your share – which always happens, right? You can set specific deadlines, and even say a specific manner in which repayment should be made (like, by direct deposit, through PayPay or Venmo, or whatever).

You can also – and this is my favorite – specify that, in the event you have to go to court to enforce any of the provisions in your agreement, the loser will cover the attorney’s fees. So, if, say, he has to pay 60% of the expenses, and then he doesn’t – you can go to court and ask that he be required to follow the agreement, and then ask for the attorney’s fees you spent enforcing it.

What if it’s a LOT of medical expenses?

Sometimes it is! Not all kids are healthy or only need to do their regular well child checks. That’s okay.

The law doesn’t differentiate. Even if it’s a lot of medical expenses, he’s still on the hook for his pro rata share.

Sometimes, I’ve seen it happen where he builds up an arrearage – like, that medical expenses have been paid up front, and he doesn’t reimburse for his portion. If the expenses are significant, it can add up very quickly. But, usually, when there’s an arrearage, the judge will order that child support be paid and an additional sum each month be designated to address the arrearage.

Ideally it won’t get to that point, or, if it does temporarily, you’ll come up with a solution to address both the arrearage and the ongoing expenses. Either you can do that by agreement, or the court will help you.

Medical expenses are hard to cover, even for relatively financially secure families. When it becomes an ongoing or pervasive expense, it’s even harder.

You’ll definitely want an experienced attorney to help you navigate this territory. For more information, to request a copy of our free book, or to schedule a consultation, give us a call at 775-425-5200.