Health Insurance Issues in Domestic Relations Cases [2010-07-20]

Jarrell, Hicks & Waldman, PC

Authored by: Barry J. Waldman, Esq.

July 20, 2011

A Virginia Court has the authority order the provision of health insurance to cover a person's children, spouse or former spouse, though the provisions for health insurance for a former spouse are extremely limited.

Obtaining health insurance from the other party for your common minor children is the simplest of the health insurance provisions. Va. Code 20-108.1(C) provides that In any proceeding on child support, a court can order either party or both parties to provide health coverage or cash medical support for dependent children, if reasonable such insurance is reasonably available.

Typically a court will find that health insurance is reasonably available if it is provided by the parents employer, or the parent already has in place health insurance for the child. Where the Court orders a party to provide health insurance, the additional cost of providing coverage for the child will be included in the child support guideline calculation when determining the amount, if any, of child support to be paid.

Where no health insurance is available, the court can order cash medical support. Presumably this cash medical support is intended to provide funds to the custodial parent to make up for the lack of available health insurance, or to allow the custodial parent to purchase non-employer provided health insurance for a minor child. Since this provision of the law is relatively new, few court decisions have provided specific guidance in this area as of July 2011.

A Court, in determining child support, can also enter an order resolving reimbursement of co-pay and uncovered medical expenses that are incurred for the child. The Virginia Code at section 20-108.2(D) deals with unreimbursed medical expenses, providing that, except for good cause or agreement of the parties, parents shall pay unreimbursed medical expenses over $250 in proportion to their gross incomes. This means that the custodial parent is responsible for the first $250 per child, per calendar year for any uncovered medical expenses.

Obtaining an Order for health Insurance for a Spouse or Former spouse is generally more difficult. In any case where child support continues to remain an issue, a court has the authority to order one spouse to provide health insurance for the other spouse and even their former spouse. Specifically Va. Code Section 20-108.1(C) allows that "In any proceeding on child support, the court shall have the authority to order health care coverage for a spouse or former spouse." If there are no minor children, though, there is a legitimate argument that there is no authority to order a person to provide health insurance for their former spouse.

However, in the process of a divorce proceeding, the Court in entering a Pendente Lite Award, frequently will direct one spouse to provide health insurance for the other, pending the entry of a Final Order of Divorce. The Pendente Lite proceeding is a request for a temporary order that is not binding on the judge at the final hearing, but is intended to avoid unnecessary negative consequences that can arise during a separation. Thus, because the parties are still married, and most health insurers allow for continued coverage, even if separated, a court will order health insurance be provided, particularly if one spouse previously, or at the time of hearing already does, provide such insurance.

For a party after the entry of the final order of divorce, where there are no minor children, there is little indication that health insurance can be demanded from the other party. The statutory provisions seem to indicate that insurance cannot be ordered in the circumstance. Most of the reported decisions of the appellate courts follow this logic as well. There is, however, one case that is contrary to the remaining decisions that authorizes an Order for continued health insurance for a divorced party from their former spouse, even where there are no longer common children.

In the end, many courts will refuse to order a former spouse to provide health insurance for you, even where there are still common minor children. Most employment related insurers will not provide to the former spouse. Thus, typically, the Court, even though authorized in certain circumstances, declines to direct one party to provide health insurance for the other, upon divorce.