The short answer to this question is "NO". Once you are divorced, you are no longer the spouse of the participating employee and coverage will end. Typically the health plan administrator will end the coverage as of the date of the divorce. There are some — a very few — plans where the coverage will continue through the last day of the month in which you are divorced. However, this is on a plan by plan basis, and is extremely rare.
As your coverage will end on the date of the divorce, it is imperative that replacement coverage be addressed well before the divorce is final. The costs of health insurance — whether you obtain coverage from your employer or seek a privately held plan — must be investigated early on and should be included in your Case Information Statement so that when the issue of support is addressed, this cost can be built into the calculation of your lifestyle. It is vital that this issue be addressed before the day of divorce so that you do not have an interruption in coverage.
There are, however, two alternatives that may be helpful to ensure continued health insurance until you are able to obtain benefits of your own. The first option is getting what is known as a Divorce from Bed and Board. This is a limited divorce, as opposed to an absolute divorce. You and your spouse will live as divorced individuals and follow all of the terms of your divorce agreement, including payment of alimony and child support and division of your assets. The advantage is that you are not considered completely divorced and you therefore may be able to remain on your spouse's health insurance. The disadvantage is that neither party can remarry until the limited divorce is converted into an absolute divorce. Keep in mind, however, that some health insurance companies have begun to treat a Divorce from Bed and Board as a regular divorce and will not allow the participant to have their former spouse on the policy. You or your spouse should research the specific policies of his health insurance carrier before you depend on this option to guarantee continued health insurance coverage.
A more commonly used option available to you is the election of COBRA continuation coverage through your spouse's insurance company after the divorce. This is not a continuation of your spouse's coverage. You will be charged for the cost of the premium, plus the administrator of the COBRA coverage can charge you an additional 2% service charge. Your divorce from your spouse will make you a qualified beneficiary eligible to apply for this coverage for up to thirty-six months. Although the premiums can be expensive, your attorney can advise you if it would be beneficial or realistic to request that your spouse assist you with paying your premiums when negotiating your overall divorce settlement.
In any event, it is imperative that the issue of health insurance coverage be discussed with your attorney at the beginning of your case, so that the proper steps can be taken to ensure that there is no lapse in coverage, which in these times, can be a costly item.
Bari Zell-Weinberger is a Certified New Jersey divorce lawyer and partner with the firm of Weinberger Divorce & Family Law Group, LLC. in Parsippany, New Jersey, where she exclusively practices family and matrimonial law. View her online Divorce Magazine profile.