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divorce and health insurance


Guest theraven
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Guest theraven

I have a question. In my divorce, my lawyer requested (and former spouse did not contest) that he continue to keep me on his employer's health insurance, which is cost free to the ex spouse. Now, many months later, he is attempting legal action against me and my attorney for allegedly "attempting to force him to violate the law" by keeping me on the insurance. He removed me before the divorce was final, violating the temporary order in our divorce which states that I MUST remain covered until the divorce is finalized. I have two questions: First, is it ILLEGAL for my ex to voluntarily continue to cover me, and secondly, since I did not receive COBRA notification until 50 days after I ceased being covered and did not have time to enroll in COBRA, do I have any recourse?

Thank you.

Rebecca M.

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Guest Stover

The answer to question # 1 is a person cannot provide medical coverage for another unless he/she is an eligible dependent (as a spouse) or there is a court order requiring such coverage. I'm wondering why your attorney did not seek a permanent court order requiring that your ex spouse continue your medical coverage on a more permanent basis (even after the divorce). Question #2 - Cobra requires that you be notified with thirty (30) days after your coverage termination date with the option to continue. It would seem that you have two (2) strong legal arguments: 1.) Legally you should (at least) have been under your ex spouse's plan until your divorce; 2.)Your ex spouse's health administrator should have contacted you sooner to inform you of your Cobra options. If insurability is not a consideration, I would suggest that you secure an individual health plan (if you're not eligible for a group plan yourself) as soon as possible. Good Luck!

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Stover

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We've been around this block a few times.

The EMPLOYER is under no obligation to cover a divorced spouse once the divorce is final. While the spouse is still technically married (prior to finalization) he/she is still considered an eligible dependent as defined in the plan.

I think if your attorney looks at COBRA case law, he'll find that the courts have deemed the 60-day period to have started from the point of notification, no matter when that notification actually happened. That's when push comes to shove and it gets into litigation. If he does his homework and contacts the employer's legal department, they'll probably agree to extend the COBRA election period appropriately. And the 45-day payment period after that.

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Guest MACain

There is one state law which requires that divorced spouses be allowed to remain on the ex-spouse's employer coverage until either party remarries, the ex-spouse terminated employment, or the date specified in the court order (Massachusetts).

Because COBRA does not allow coverage to be canceled in anticipation of an event that would cause a COBRA notice to be issued, its been determined in courts that if a soon to be ex-spouse is dropped from the plan, the plan is still liable to offer that ex-spouse on the date of the divorce (which is the event to allow enrollment in COBRA). However, either the employee or the ex-spouse needs to contact the employer within 60 days of the divorce to request this. The employer then has 30 days to notify the COBRA administrator who has 14 days to notify the ex-spouse. Eligibility to enroll in COBRA continues for 60 days after the date of the notice or the loss of coverage, whichever is later. So its possible that even though you did not get a notice till 50 days after you lost coverage, everyone was still in compliance with the regulations. Good luck.

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Guest theraven

Thank you for your responses.

I am still trying to figure this out: In Oklahoma, is it ILLEGAL for my ex husband to continue to cover me on his health insurance while we are separated but still married, then after the divorce?

I am going to clarify some things from my first message.

First, it was my understanding (I haven't talked to my attorney yet to verify this) that my Divorce Decree is a permanent court order. In my Divorce Decree, it is stated in no uncertain terms that my ex husband WILL keep me on the insurance policy indefinitely until the company begins to charge a premium (I checked and they have NOT), at which time I would have the option to rimburse my ex husband for the premium for my coverage. I took this to mean that he counldn't remove me, period. He, in fact, removed me from the policy 2 weeks before the divorce was final. I ran up $3000 in medical bills (minor surgery) in the time between my removal and the day I found out I was removed. Of course, these expenses were not covered.

My lawyer seems to think that we can pursue a contempt of court citation.I would like to do this if I feel comfortable that I have a good case. I would also like to know opinions on whether or not I would be successful in the contempt case and in small claims court in recovering some of the medical expenses.

Rebecca

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  • 3 weeks later...

Since we are benefits folks here, I think we are looking at this from the point of view of your husband's employer and its health plan. When you ask for opinions on whether you will be successful in a contempt or small claims case, the obvious question is "successful against whom?"

If your court order is as clear as you indicate, it seems like your husband doesn't have a leg to stand on under the domestic relations law of Oklahoma (but, of course, I don't know anything about the domestic relations law of Oklahoma . . .).

Now claims against your husband's employer and its health plan (including perhaps the insurance carrier, if the plan is insured), are a different story. Trouble is, you haven't described the facts enough for me to form a reaction about their liability. For example, did you give notice to the employer or plan of the court order? When? If you didn't, then I don't think there is any argument that the plan was bound to force your husband to keep you covered. Even if you did, the plan might be able to argue that it was not subject to the state court order because of something called ERISA preemption. What position, if any, is the plan taking?

One of the commentators is correct that there is a Mass law that permits an ex-spouse to be maintained on their spouse’s employer-sponsored health plan under state court order. But even the application of such a law to the employer or plan is open to question under ERISA preemption. See the court case of Cellilli v. Cellilli, 939 F. Supp. 72 (D. Mass. 1996).

I am not aware of any state law that makes it illegal for an employed spouse to maintain an ex-spouse on his employer’s group health plan. Of course, most plans would be written as a matter of policy so that an ex-spouse was not eligible but that’s a different matter. What does your husband’s plan say about covering ex-spouses? If it says they are not eligible, then the employer and plan might take the position, again under ERISA preemption, that a state court order can’t force them to cover you. But that doesn’t make it affirmatively illegal for them to cover you.

As to your COBRA rights, you had an obligation to notify the plan of the divorce, which is a qualifying event under COBRA. Presumably you did. However, for you to be eligible for COBRA, the qualifying event also had to cause you to lose coverage under the plan. Of course, in this case, it was your husband’s dropping you that caused your loss of coverage. Luckily, the new COBRA regulations, provide a special rule for spouses who are dropped from coverage in anticipation of a divorce, and, under the rule, the divorce will be deemed to have caused the lose of coverage. However, COBRA eligibility runs from the time of the divorce, not the earlier loss of coverage. So vis a vis the employer and plan (as opposed to your husband), you may not have a claim for the interim period.

The other commentators are also correct that you should have received a notice from the plan giving you 60 days in which to make an election for COBRA. The 60 days should have run from the later of the loss of coverage or the date of the notice, i.e., you should have received a full 60 days to chose, regardless of when the notice was sent. Now maybe you didn’t have any uncovered medical expenses except in the period between the date your husband dropped your coverage and the date of the divorce and so you are not interested in subsequent coverage under COBRA. However, under the new rule mentioned above, the plan did not have to extend COBRA coverage to you for that interim period.

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I neglected to provide a cite for the anticipation of divorce rules in the new COBRA regulations. It is 26 CFR § 54.4980B-4, Q/A-1©. The preamble to these regs, at 64 Fed. Reg. 5165, explains that the plan would be required to make COBRA coverage available effective on the date of the divorce "but not for any period before the date of the divorce . . .."

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Guest Baron

Does COBRA apply only to persons who are or which have been separated from a firm which provided health insurance? If an employee retires under normal company policy, reaches the age of 65, Medicare then becomes the primary health insurance coverage with the company provided insurance then becoming Medicare supplemental coverage, the retired person then divorcing, is the spouse entitled to COBRA? Is or was the enactment of COBRA intended to become operative upon the employee retiring? Would appreciate someone expounding. Thanks.

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Just came across a case, Kaelin v. Kaelin, 1999 Mo. App. LEXIS 454 from the Missouri State Court of Appeals that deals with a beef between two ex-spouses about COBRA obligations imposed in the divorce decree on the husband. The wife claims the husband screwed up by not paying COBRA premiums on time and sues him, but not the plan.

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  • 10 years later...
Guest eandrew

i am not sure if i am posting this in the correct place.i read the topic that was being discussed and have a divorce and insurace issue.

my divorce was final in june of 2008. my ex husband did not have me removed from his policy. i called the health plan administrator to see how i could be removed to get a certificate of credible coverage to start coverage with my employer. i was told that only ex husband could remove me during open enrollment and that i could not get certificate of credible coverage until then. i was told i was still covered until he did this. i spoke with my human resource administrator who stated that i could only be enrolled in new plan with certificate of credible coverage and since i was changing from one blue cross plan to another, there should not be a problem.

i reminded ex husband on many occasions to have me removed and spoke with his employers health plan administrator explaining the divorce and i needed certificate of credible coverage to get on my own plan. he did not make changes until may 2009 when he remarried and then i finally got certificate of credible coverage on june 3 2009 effective back to june 2008. i was placed on my emplyers health plan same week. now ex husbands insurance carrier wants him to pay back for claims submitted during that time i was ineligible.

i am so confused because i could not get my own coverage until i was off his policy and i was unable to remove myself from the policy according to his plan administrator stating " only policy holder can have dependent removed and only during open enrollment" which he missed.

his insurance carrier has put a hold on all claims after he did not start making payments. so my four children basically do not have coverage now under that policy . i have added my four children to my employers health care plan which is more expensive and he has a court order to cover the children. ex husband is sueing me for processed claims.

i do not know what to do or what i could have done differently to avoid all of this. i could have been covered immediately if he had removed me. all i needed was the certificate of credible coverage and i could not get that until he had me removed and now he is sueing me for this money. anybody with any ideas or knowledge of this matter, please help.

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