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Can I stay on my spouse’s health insurance when I turn 65?

Are you over the age of sixty-five and going through a divorce? It is becoming more common for people in that age group to be going through the divorce process, and insurance concerns at typically at the top of the list of questions people have who are doing so. The problems that younger persons face in divorce: child custody, child support, building wealth, dividing up community property, etc., are less prevalent in golden years divorces. However, in exchange for those problems, folks in your age group have to concern themselves more with health insurance, conserving a nest egg, and building the next phase of their life.

In my years of working with clients, I've figured out that options are your best friend when it comes to divorce. If you feel like your back is against the wall and that you have no choice but to select a specific path, you have put yourself in the wrong position. Options mean that you are free to choose a different approach for yourself. Options mean that you have been able to maintain a degree of autonomy over your decision-making. Options mean that your result will typically be a better one for you.

If you need health care provided for you after your divorce, what can you do if your health insurance is currently offered through your spouse? Let's spend some time going through some hypothetical questions. Then we can provide answers to those same questions to illustrate what options are available to you regarding divorce, health insurance, and golden years divorces.

Losing insurance after divorce- can it happen to you?

Suppose that your husband has started the divorce process by filing his Petition. You have hired your attorney and are in the process of filing an Answer to his Petition. The concern that you have is that you are on his workplace-provided health insurance plan. Can that health insurance be taken away immediately since you will no longer be his spouse once the divorce is finalized?

While you will not be able to continue being covered by his health insurance forever, you can remain covered for some time after the divorce by taking advantage of COBRA coverage. COBRA is a federal law that allows you to continue with your current health insurance after a life event occurs. People who lose their jobs, get fired, or go through divorce have the option to pay a certain premium to remain covered by health insurance while you figure out your next step.

How are pre-existing conditions treated in this regard?

Being over the age of 65 brings with it the likelihood that you have had prior medical conditions that you have needed to seek treatment for. Whether it be cancer, diabetes, heart disease, or skeletal issues, your ability to remain covered by a health insurance plan is critically important.

Recent laws passed by Congress allow a person with pre-existing conditions to obtain health insurance on an ongoing basis despite your having pre-existing conditions. For instance, even if you are getting a divorce, you can stay on your spouse's health insurance plan through COBRA for up to 36 months. The premiums can be expensive compared to what coverage cost before, however. In some divorces, you may be able to negotiate to have your ex-spouse pay those premiums for a certain length of time.

The Affordable Care Act (Obamacare) would protect you in the event of a qualifying event like a divorce, as well. You have options such as joining local civic groups that provide health insurance coverage for members. If you are a retired professional, you may look at various professional organizations to determine if the range is possible through those outlets, as well. Medicaid and Medicare may also be available to you depending on your age and individual financial circumstances.

What power does a judge have to order that your spouse cover you for health insurance post-divorce?

Can your ex-spouse be ordered in the divorce to provide you with health insurance even after the divorce is done and over with? Suppose that you and your spouse have been married for a long time and now are getting a divorce. You've had chronic health problems since your late 30s but have always been covered by your spouse's health insurance policy through his work. With the upcoming divorce, you have a reasonable concern that you will not be covered anymore since you are getting a divorce and have significant medical problems.

The thought has crossed your mind regarding the possibility of your spouse paying for your health insurance even after your divorce. After all, you didn't want the divorce in the first place; with medication costs, monthly doctor visits, and possible surgeries in your near future, you can remain covered by health insurance is essential to your post-divorce life. Can you negotiate to have your ex-spouse pay for this coverage in divorce negotiations?

It is possible to ask a judge to have your spouse ordered to pay for your health insurance costs or the medical bills that result from the treatment that you receive. Your situation will determine whether or not a judge is likely to rule in your favor, however. Spousal maintenance or contractual alimony are two components that we have not yet discussed that can also impact this conversation. It would help if you discussed this with your attorney. Even if you can't work out a situation where your spouse is ordered to pay health insurance costs, you may be able to work it out where you negotiate to receive spousal maintenance in an amount that allows you to pay for the care you need.

If you choose to remain on your spouse's insurance through COBRA, be aware that this would need to be a decision at which you arrive. Your spouse cannot be ordered to keep you on his insurance policy through work. That is not his decision, nor is it his employer's. It depends on the specific insurance policy whether or not ex-spouses are allowed. From my experience, most policies do not enable ex-spouses to remain on as covered persons.

Is there any way that your spouse can drop you as an insured before the finalization of your divorce?

Here is a question that I get with some frequency: what happens if your spouse (out of spite, ignorance, anger, or some combination of the two) decides to get in touch with your health insurance provider and drop you from the list of persons who are covered under the policy. At your age, with your medical conditions, this would leave you in a precarious position. How likely is it that this could happen to you?

In short, the likelihood of this happening is very, very low. First of all, there will be temporary or standing orders that exist in your case. Just about every county that I can think of has a mandate that forbids the removal of a spouse from health insurance coverage while the divorce is ongoing. The same goes for life insurance and other policies where you are covered or are a named beneficiary.

The same is generally true if your spouse tried to release you from coverage before the divorce is filed. True, there would be no temporary orders in place that would necessarily prevent him from doing so. However, the judge would likely order that he put you back on the policy ASAP. Your attorney could also ask the judge to be OK with your spouse or to have him pay your attorney's fees for pulling a stunt like that. If you believe that your ex-spouse would be capable of doing something like this, you may want to ask him just to pay you the difference in a family plan versus an individual plan to seek coverage on your own.

When is your spouse able to drop you from insurance coverage?

So now that you have reached the point in your divorce where the case is now over, your settlement has been reduced to orders, and you're trying to move on with your life. Your thoughts may be turning now to what point in time your spouse can remove your name from his health insurance plan.

As you have probably figured out already, your ex-spouse does not and probably cannot have you listed as a covered person on his health insurance once the divorce is complete. He is likely to drop you from the insured status as soon as your divorce is final. The day that the judge signs the divorce decree is expected to be the last date that his health insurance plan covers you. It would help if you planned well in advance of this date what you want to do as far as replacing that coverage.

What to do if your ex-spouse does not pay the health insurance costs that he is ordered to

Consider the following hypothetical situation. In your divorce, you negotiated with your spouse for him to pay half of your medical insurance going forward until you reach age 70. If you are 65 right now, that means he is on the hook to help you pay for insurance for the next five years. Unfortunately, he has failed to pay any of your health insurance costs since your divorce about 11 months ago. All in all, this has cost you nearly $10,000. What recourse do you have in a situation like this? Can you contact the police? Or the judge?

The situation that I laid out for you above screams out for an enforcement hearing. An enforcement hearing can be set up only if you file a motion to enforce your final decree of divorce. You can ask the judge to address the alleged violations of the court order and assess your spouse as a penalty for not having followed the orders. You should hire an attorney to do this because a simple mistake in drafting your motion can be the difference between winning and losing a case like this.

All in all, it can be a risky move to negotiate for your ex-spouse to do anything as far as paying you money on an ongoing basis. It probably makes more sense for you to try and arrange for a lump sum payment from your spouse early in your post-divorce life to avoid putting yourself in a situation where you are relying upon him to pay for costs piecemeal over a long time.

Final thoughts on health insurance after 65 and divorce

Going through a divorce is tough. Going through divorce in your golden years is challenging. Going through a divorce in your golden years without a great plan for health insurance coverage is even more difficult. However, you can develop a game plan with your attorney to ensure that you do not suffer the consequences of going long periods without health insurance coverage. Do not think that this is an issue that will address itself. The court will not concern itself as heavily with your health insurance coverage compared to a child's. Take care of yourself and attack this problem early and often in negotiations.

Questions about health insurance coverage and divorce? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan appreciate you spending time with us today here on our blog. If you have questions about anything you have read, please do not hesitate to contact our office. We would be happy to set you up with an appointment with one of our licensed family law attorneys. You can ask questions and receive direct feedback about any issues you may be encountering related to Texas family law.

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