There are lots of things that women want to have included in their separation agreements, but that doesn’t always mean that it’s possible. Unfortunately, when it comes to some things, we’re limited by what the law allows.
What DOES the law allow you to divide or award in divorce?
There are lots of things that the law specifically allows to be divided in divorce. We can divide the marital assets—like real estate, personal property, bank accounts, investments, retirement accounts, pensions, and so on. We can also handle child custody, child support, and visitation. Spousal support, too, can be awarded in divorce.
There are lots of other provisions that we also commonly include, like who claims the children as tax dependents, what happens in the event of bankruptcy, how the pets will be divided between the parties, and so on. There are also more unusual provisions that we include sometimes, but not always, and unique provisions that we leave up to the clients to let us know about.
I say all the time that the only limitations when it comes to separation agreements is the creativity of the drafters. If you have a specific goal in mind, we can incorporate that into your separation agreement. Really, as long as it’s not illegal, there’s not a limit to what you can and can’t ask for—but that doesn’t mean that you’ll get it, of course.
When it comes to things that are outside what the law allows, we don’t really have any teeth, so to speak. We can ask for something but, when your husband or his attorney, if he’s represented by counsel, says no, there’s not a whole lot we can do about it. We can’t take the issue to court, because what we’ve asked for is outside the law—so the judge doesn’t have any authority to grant it anyway. Basically, we’re at the mercy of your husband (or his attorney) if we ask for something that isn’t typically covered in a divorce.
That doesn’t mean we don’t often get more unusual things. We do! But it depends on the agreement, how it’s worded, and what we’re willing to give in exchange.
Though I can draft an agreement giving my client everything, I rarely do. Because what would be the point? Husband (or his attorney) would say no, he’s not going to sign that, and, worst case scenario, we’ve really annoyed him. He thinks that all future dealings with us will be equally unreasonable. He figures that he might as well go ahead and file for divorce in court and let the judge decide, because he knows he’ll get further with the judge than with us. And, really, that’s not an ideal position to find yourself in.
So, anyway, long story short, we can ask for pretty much whatever we want—but asking isn’t the same as getting—and we do have to be wary that we’re not doing or saying something that will totally sour the deal and end up costing us more in the long run.
Can I get my husband to give me permanent health insurance after the divorce?
That all depends, but probably not. Technically, the only women who will certainly receive permanent health care after their divorce are military wives who meet 20/20/20 status.
If you’re not a military wife, or if you’re a military wife who has been married for less than twenty years (or he has served less than twenty years or those twenty years haven’t overlapped), chances are you will NOT get permanent health care after divorce.
If your husband has maintained your health insurance up until this point, you can ask that he be required to maintain it until the entry of the final divorce decree, but after that point, his hands are tied. A health insurance company won’t allow him to maintain you on the same policy, because you’re no longer family members. (Legally, after divorce, you’re strangers.) The law doesn’t require that he continue to pay it, either. Technically, you’ll have to obtain your own policy—through your employer, using COBRA, or some other similar program.
Though he could, theoretically at least, just pay the premiums, that’s not something that the law allows. A judge can’t order it, even if he wanted to, and, as a result, chances are you won’t be able to get your husband to agree to do it, either. If he does, great—then you’re all set. But if, as I suspect, he won’t, then you’re done. There’s nothing else you can do to make it happen, try as you might.
So what do I do now? What about health insurance after the divorce?
Sometimes, we can use the increased cost of you obtaining your own separate health insurance policy as a justification for increasing spousal support. I’ve had cases where the judge allowed this, and raised the amount of spousal support that husband had to pay. Though it’s often not a dollar for dollar raise (meaning that if it costs you $400 a month, that doesn’t mean that husband will have to pay a full $400 a month increase in spousal support), it is very helpful.
It’s a good idea to have a reasonable idea of what your expenses are and what they will be, because those will be relevant when it comes time to discuss spousal support. Honestly, if permanent health care coverage is your main concern, this is the place to address it. You may not be as successful as you might like (mostly because, like I said, there’s really no basis in the law for it), but you’ll be more successful than if you ask him to maintain permanent coverage on you post divorce.
So, even though I often say that you can ask for anything you want, there’s obviously a big difference between that and getting everything that you want in your agreement. You might be successful getting him to agree to pay your health insurance premiums permanently if you waive your right to receive spousal support or something like that, for example (assuming, of course, that you’d qualify to receive permanent spousal support, and that the amount would be greater than the cost of paying the permanent health insurance premiums). Still, he couldn’t maintain you on his policy, so his cost would be greater than it is now, while you’re still married—but, in a case like that, it might be possible. Still, most women aren’t willing to give up the spousal support for the permanent health insurance coverage, I just tell you that to illustrate the bargaining nature of these types of agreements.
I think your best bet is to focus on getting your spousal support obligation increased to reflect your increased costs. For more information, or to schedule an appointment with one of our attorneys, give our office a call at (757) 425-5200.