Will I Be Covered by My Spouse's Health Insurance After Final Judgment of Divorce?

Rhode Island Has enacted the Rhode Island Health Insurance Continuation act. This act allows a person to remain on their ex-husband or ex-wives health Insurance after Final Judgment of Divorce.

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Unfortunately, this act has been watered down by recent case law out of the Federal Court District of Rhode Island. The case of Duclos v. General Dynamics Corp., 12 E.B.C. (BNA) 2648 (D.R.I. 1990) stands for the proposition that The Rhode Island health Insurance Continuation act is Preempted by ERISA. ERISA is a Federal Statute. Under Common Law, if a federal statute and state statute relate to similar topics, Federal Law may preempt state law. The Federal Preemption Doctrine is "a doctrine in law that allows a federal law to take precedence over or to displace a state law in certain matters of national importance (as interstate commerce)" Dictionary.com

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Duclos v. General Dynamics Corp., 12 E.B.C. (BNA) 2648 (D.R.I. 1990) ruled that the "Rhode Island statute requiring certain divorced spouses to be granted continuation health coverage without additional premiums was preempted by ERISA..." Quoted from Charles Shulman, Esq. "EBEC (Employee Benefits / Executive Compensation) Law Update"

Despite the Duclos ruling, many Rhode Island Employers allow an ex spouse to remain on health insurance coverage after Final Judgment of Divorce. Many employers are prohibiting ex spouses from coverage after final Judgment of Divorce relying on the Duclos case. My Understanding is that Blue Cross Blueshield of Rhode Island allows an ex spouse to remain on health insurance after Final Judgment of Divorce.

During the pendency of the divorce, the parties should determine the employers policy and procedures related to continuation of coverage after Final Judgment of Divorce. If possible, they should seek the company policy in writing from the Companies benefits administrator. The Obligations of Rhode Island based companies to comply with the Rhode Island Health Insurance Continuation Act is beyond the scope of this Article.

If a spouse will be remaining on his or her ex spouse's insurance then the following language should and must be put on the record at the Rhode Island Nominal Divorce Hearing and be memorialized into the Decision Pending Entry of Final Judgment as well as the Final Judgment of Divorce:

"Plaintiff shall provide Defendant with Health Insurance and Dental Insurance pursuant to the Rhode Island Health Insurance Continuation Act."

This language should be put on the record and memorialized into the Decision Pending and Final Judgment of Divorce even if the employer will be removing the spouse after Final Judgment of Divorce!

The above described language incorporated into the Final Judgment of Divorce is usually interpreted by Judges of The Rhode Island Family Court as meaning the following:

1) If there is an additional expense over and above the cost of a single plan for the ex spouse to remain covered by the health insurance plan then the ex spouse must pay that additional amount or he / she may be removed from the Health Insurance policy.

2) If the person with Health Insurance loses their job, or goes to another employer then the ex spouse will probably lose health Insurance coverage.

3) If either party (husband or wife) remarries than the ex spouse may lose Health Insurance coverage.

It is usually a good idea to specifically put on the record at the nominal divorce hearing, that the ex spouse is required to pay any additional premium over and above the cost of a Single Plan or they will be removed from the insurance. These issues can get confusing if the cost for a family plan includes the children and there is no additional expense for the spouse. Please consult with a Rhode Island Divorce Lawyer about these issues.

The Rhode Island Health Insurance Continuation Act R.I.G.L § 27-20.4-1 states:

"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 * * * 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 [eligible for continuing health care benefits] * * *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." Section

27-20.4-1(a). (Emphasis added.)

The Rhode Island Supreme Court interpreted the Rhode Island Health Insurance continuation act in L'Heureux v. L'Heureux: "The clear and unambiguous language of § 27-20.4-1 requires that health insurance benefits, when provided for in a final decree of divorce, continue at no cost to the former spouse of the party participating in the plan as long as the plan participant is still a member of the plan and until (1) either party remarries, or (2) a time provided by the judgment of divorce. Furthermore, the continuation of the original plan coverage shall cease when the former spouse becomes eligible to participate in a comparable health plan through his or her own employment."

What are some of the health insurance options available to ex spouses after Final Judgment of Divorce in Rhode Island?

COBRA Heath Insurance may be a worthwhile option for Ex Spouses after Final judgment of Divorce."Under COBRA, employers must offer the option of continued health insurance coverage at group rates to qualified employees and their families who are faced with loss of coverage due to certain events." CRS Report for Congress Health Insurance Continuation Coverage march 2005 "... When the qualifying event, however, is a covered employee's divorce or legal separation, COBRA coverage lasts for thirty-six months."

"COBRA provides that employers who provide their employees with medical coverage must provide continuation coverage to employees and their families who would otherwise lose coverage under the employer's plan as a result of a qualifying event. Qualifying events include: (a) a covered employee's divorce or legal separation....Once a qualifying event occurs, the covered employee, his or her spouse, or dependents seeking COBRA coverage must elect such coverage within 60 days of the occurrence of the qualifying event and must pay the required premiums." Marsha Zolla, Healthcare and family Law

Will I Be Covered by My Spouse's Health Insurance After Final Judgment of Divorce?

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