Either some Rhode Island divorce lawyers today still make a significant mistake about health insurance coverage laws or their clients misunderstand what has been explained to them.
Within the past month I have heard several clients tell me that they already expect to pay for their spouse's health insurance even though they don't want to because their spouse's lawyer has said to the spouse that the law requires them to.
If that was in any way unclear, an example goes something like this.
Darlene and Francis are getting divorced. Darlene is worried about having continued health insurance on her husband's health insurance policy after she is divorced from Francis.
Attorney Grange represents Darlene. Attorney Grange advises Darlene that the Rhode Island Insurance Continuation Act requires Francis to keep her on his health insurance and to keep paying for it at no cost to her. Darlene now feels safe that she will have continued health insurance even after her divorce from Francis is final.
What's the catch? Darlene's Rhode Island divorce attorney has given her incorrect legal advice.
Too many lawyers make this mistake in divorce proceedings.
Rhode Island's Insurance Continuation Act is not directed at the parties in the divorce. Rather, the Insurance Continuation Act (R.I. General Laws 27-20.4-1 et seq.) tells the health insurance carrier what it may or or may not do under certain circumstances and depending upon what is stated in the parties' judgment of divorce.
Rhode Island's Insurance Continuation Act doesn't tell Francis what he can or can't do at all. Nor does the Insurance Continuation Act guarantee Darlene that she will have health insurance coverage through her husband's health insurance plan after they are divorced.
Here is the section of the Insurance Continuation Act that Attorney Grange should have reviewed before advising his client on this important divorce issue.
§ 27-20.4-1. Continuation of health plan coverage for former spouse
(a) In the event of a final judgment of divorce, whether absolute or otherwise, where one party to the divorce was at the time of the entry of the judgment for divorce a member of a health plan providing family coverage regulated under chapters 18, 19, 20, or 20.1 of this title and § 42-62-13, or a member of a health maintenance organization as defined in § 42-62-4(5), or any similar health plan whether regulated under these chapters and sections or not, the person who was the spouse of the party prior to the entry of judgment for divorce may remain eligible for continuing benefits under the plan and health maintenance organization without additional premium or examination if the order is included in the judgment when entered. The eligibility shall continue as long as the original member is a participant in the plan or health maintenance organization and until either one of the following shall take place: (1) the remarriage of either party to the divorce, or (2) until a time as provided by the judgment for divorce. If the person who was the spouse of a member of a plan or health maintenance organization as set forth in this subsection becomes eligible to participate in a comparable plan or health maintenance organization through his or her own employment, the continuation of the original plan coverage shall cease. Any final decree continuing family health insurance shall require both the member and the spouse to notify the insurer promptly of any remarriage.
(b) The person who was the spouse and remains eligible for continuing benefits under the provisions of this section or any custodial guardian of an insured minor child of the original member, having paid for covered medical costs subject to reimbursement, shall be reimbursed directly by the insurer upon the filing of the claim. The insurer shall not require that the claim be filed through the insured member, but must allow for direct filing.
Continued health insurance between spouses still is an aspect of the divorce that must be negotiated between the parties. In some exceptional cases, some federal laws may provide that the ex-spouse may not be covered at all once the final judgment of divorce enters. However, in most cases the insurance coverage is still something that has to be worked out.
The final judgment of divorce might state that Darlene could remain on Francis' insurance at no cost to her as part of their Marital Settlement Agreement until the Final Judgment of Divorce enters.
It is also possible that the parties agree that Darlene may continue on the health insurance indefinitely (or as long as allowed by the insurance carrier) as long as she pays the difference in cost between the individual plan for Francis and the cost of the family plan so that Darlene will have continue to be covered.
There are any number of different types of agreements that might be reached between spouses regarding the Health Insurance Coverage after the divorce depending upon the circumstances.
However, there is no law in Rhode Island that requires the member subscriber to continue your coverage at his or her cost. If you hear this from your divorce attorney, you may want to have him or her show you the law that states this.
Remember, attorneys are present because every case is based upon the facts. All cases are fact specific and most legal advice given by your attorney will relate specifically to the facts of your case and arguments that could be made on your behalf. However, mandatory coverage by the spouse carrying the health insurance so the other spouse is guaranteed continued health insurance coverage is not currently a requirement in the Rhode Island General Laws as of the final session of the General Assembly in 2010 as codified.
If your divorce attorney insists that Rhode Island law guarantees you continued health insurance without reaching an agreement with your spouse that he or she agrees to provide continued health insurance to you at no additional cost, my suggestion is to get a second opinion or require your divorce lawyer to show you exactly where the law requires it.
This article was written March 31, 2011.
Authored By:
Christopher A. Pearsall, Attorney-at-Law
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