Unless each spouse has health insurance through his or her own job, and the couple has no children, a divorcing couple must decide how to manage their health insurance benefits. Often, an employer's policy covers the whole family. But after a divorce, the spouse with the family health insurance coverage can no longer cover the dependent spouse.
This article answers some common questions about maintaining health insurance benefits in New Jersey after a divorce. (For more on New Jersey divorce law, see our New Jersey Divorce and Family Law page.)
A divorce can have a major effect on where family members get their health insurance benefits. Many families get coverage through one spouse's employer, who provides and perhaps pays for health insurance benefits covering the entire family. After a divorce, however, the spouse with family health insurance coverage can no longer cover the dependent spouse. The dependent spouse is no longer a “family member” who can take advantage of the employer-based policy. There is no way around this unfortunate reality. If a couple gets divorced, then the dependent spouse will lose his or her health insurance coverage.
If one spouse does not have adequate health insurance benefits available, and the cost of obtaining COBRA benefits or an alternative health insurance policy is prohibitive, then there is one way to continue benefits without additional cost: Enter into a separation agreement, but delay filing for divorce. That way, the parties remain married and can stay on the same health insurance plan even though they are separated. The spouses can consent to waiting for one, two, or more years before either spouse files for divorce. While the couple will remain married, their property, custody, and support issues will be addressed in their separation agreement. Under some circumstances, this is an optimal resolution.
Another option is for the dependent spouse to obtain COBRA coverage. COBRA is a federal law that gives a person covered under a health insurance policy the right to continue that coverage, at his/her own cost, for a set time period if certain requirements are met. For example, if you obtain a divorce and your spouse has family health insurance coverage through his employer, then the employer would have to offer you COBRA coverage after the divorce. COBRA coverage gives you the right to the same health insurance policy, although your coverage would now be for an individual and not a family. You would have to pay the employer’s cost for that individual policy.
There are several types:
COBRA is the federal law that entitles you to continue coverage in an employer’s group health plan, even if you’ve become ineligible to participate because of job loss, divorce, or the death of a spouse. If you were covered under your spouse’s employer-sponsored health plan policy prior to your divorce or legal separation, then you should still be entitled to continue coverage under COBRA. However, the employer who sponsors the health plan no longer has to pay the premiums for this coverage; you will have to pay those costs.
The main advantage of applying for COBRA benefits is that it enables a divorced spouse to maintain his or her health insurance policy provided by the former spouse. If an employer-based health plan has good coverage, then it may be advantageous to continue coverage under that policy. COBRA coverage lasts for 36 months. After the 36-month period expires, the divorced spouse must obtain his or her own health insurance benefits.
There are many things to consider during divorce, and maintaining health insurance coverage should be a priority. When a marriage ends, there are normally four good options that a divorced spouse can pursue to maintain health insurance coverage:
A divorced spouse should know exactly how much it will cost him or her to obtain health insurance under a private plan. This information should be disclosed to the court. The court will take into consideration the costs to obtain monthly health insurance when it determines the amount of spousal support.
Yes. Your spouse’s employer is required to provide COBRA coverage for you, but only if you notify the health plan administrator within 60 days of becoming divorced. If you don’t give the administrator proper notice, then you will not be eligible for the coverage.
No. Even if your spouse will be providing health insurance for the children, he or she cannot provide coverage for you through the employer’s group plan, because you’re no longer a member of his or her family. If your spouse has been providing coverage for you, and your spouse’s employer has more than 20 employees, you’ll want to explore coverage under COBRA.
There are two problems with obtaining COBRA insurance coverage. The first is the cost of the coverage. COBRA coverage is considerably more expensive than the coverage available from most employers, because you’ll have to pay 102% of the premium. The average price for COBRA ranges from $650 to $750 per month.
The second problem is the risk of becoming uninsurable. COBRA coverage will end by its own terms 36 months after your divorce is effective. What happens if you’re stricken with heart disease or cancer during those 36 months? You would then face the unpleasant prospect of having to find new coverage with a most unappealing medical history.
The only possible way for a divorced spouse to remain on her husband’s health insurance policy is to obtain a legal separation, or a divorce from bed and board. There really is no formal proceeding for a legal separation in New Jersey, but there is an outdated legal proceeding called a divorce from bed and board that is similar to a legal separation. Basically, a divorce from bed and board is a legal proceeding that is not really a divorce, but is more than a legal separation. It is also called a limited divorce, and was very popular in the 50’s and 60’s. Many people believed that getting a divorce was a mortal sin, resulting in damnation. This belief was especially prevalent for people of the Catholic faith.
To address these concerns, the courts developed a legal proceeding called a divorce from bed and board, where the parties are economically divorced but are still legally married. The parties receive a judgment that equitably distributes their assets, issues support awards, and apportions marital debt. A limited divorce has all of the same attributes of an absolute divorce, except the parties can’t remarry.
The benefit of having a divorce from bed and board is that a dependent spouse can still receive health insurance benefits from the other spouse’s health plan because there is not a complete divorce. In my experience, retaining health benefits is the primary reason why a couple may choose to pursue a divorce from bed and board. Because it is often impossible for a wife to obtain affordable health insurance benefits after her divorce, it is imperative that she is able to maintain adequate health insurance if a medical condition exists. If there is a long-term marriage, a divorce from bed and board can allow a wife to retain her coverage without having to pay for COBRA.
A divorce from bed and board should only be pursued if the parties are still civil to each other. Moreover, this type of legal proceeding is really applicable only to a very long-term marriage, and only if neither party has an intention to remarry.
The drawback of a divorce from bed and board is that the parties are still technically married. Neither spouse can remarry, and it may therefore be impossible to seriously date other people. It is no fun to date a married person no matter how you look at it! Also, some spouses may still attempt to exert control over the other spouse because a technical marriage still exists.
If a divorce from bed and board is obtained, either spouse is permitted to file an application with the court to convert it to an absolute divorce. An absolute divorce is a full divorce, giving both parties the right to remarry. Of course, if an absolute divorce is entered, the dependent spouse will lose his or her health benefits. Once the family unit is officially terminated, any employer-based health plan is no longer legally obligated to provide coverage to a dependent spouse.
It may take several meetings with an experienced lawyer to fully understand the pros and cons that a limited divorce has to offer. However, if a dependent spouse suffers from a severe medical condition(s), and if maintaining health insurance is a “life or death” issue, then it is worth serious consideration.