Posted on December 5, 2021

Staying On Your Spouse’s Insurance After An Illinois Divorce

When you get divorced two parties no longer have any obligations to each other that are not enshrined in their marital settlement agreement.

There is no obligation to insure your spouse or your former spouse under the Illinois Marriage And Dissolution Of Marriage Act.

But, in Illinois an insurance company cannot offer health insurance without also offering to insure a policy holder’s spouse and children.

“No policy of…health insurance, nor any certificate thereunder shall be delivered or issued for delivery in this State after December 1, 1985, unless the policy provides for a continuation of the existing insurance benefits for an employee’s spouse and dependent children who are insured under the provisions of that group policy or certificate thereunder” 215 ILCS 5/367.2(A)

Then the Illinois Insurance Code immediately provides the exception that this does not apply to divorced spouses. “[N]otwithstanding that the marriage is dissolved by judgment” 215 ILCS 5/367.2(A)

Until the parties are officially divorced, all insurance policies can expect to remain in place even if the parties are separated.

A “trial court d[oes] not abuse its discretion in ordering [a spouse] to pay the medical expenses incurred by [the other spouse] during the separation” In re Marriage of Schmidt, 242 Ill. App. 3d 961, 974 (Ill. App. Ct. 1993)

Once you are officially divorced, there is no obligation for your spouse to continue to insure your health. But, you can still stay on their policy through COBRA.

COBRA Health Insurance Coverage After An Illinois Divorce

A former spouse does have the right to purchase the same plan they were insured under through their former spouse under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)

“The plan sponsor of each group health plan shall provide, in accordance with this part, that each qualified beneficiary who would lose coverage under the plan as a result of a qualifying event is entitled, under the plan, to elect, within the election period, continuation coverage under the plan.” 29 U.S. Code § 1161(a)

COBRA requires that the plan offer the EXACT same coverage which is especially important if the divorced spouse is undergoing some kind of medical treatment at the time of divorce.

“The coverage must consist of coverage which, as of the time the coverage is being provided, is identical to the coverage provided under the plan to similarly situated beneficiaries under the plan with respect to whom a qualifying event has not occurred.” 29 U.S. Code § 1162(1)

The COBRA plan will only last 18 months after the divorce. “In the case of a qualifying event described in section 1163(2) of this title, except as provided in clause (ii), the date which is 18 months after the date of the qualifying event.” 29 U.S. Code § 1162(2)(a)(1)

The qualifying event for a divorce is…a divorce.

A qualifying event is “[t]he divorce or legal separation of the covered employee from the employee’s spouse.” 29 U.S. Code § 1163(3)

Coverage under COBRA will be cost the divorced spouse the actual cost of the insurance plan.

“[T]he cost to the plan for similarly situated beneficiaries for the same period” 29 U.S. Code § 1164(2)(B)(i)

That’s the premium plus any additional cost the employer covered. This amount is usually $ 400 to $ 700 a month.

COBRA coverage is only available if the insured spouse is currently insured at the time of the divorce. If you are planning to apply for COBRA coverage, be sure to ask your spouse at the prove up/final hearing if they are still insured.

A marital settlement agreement which was entered into on the basis of continuing insurance through COBRA may be invalidated if it is discovered that the supposedly insured spouse was not, in fact, insured upon the date of divorce. In re Marriage of Riedy, 474 NE 2d 28 – Ill: Appellate Court, 2nd Dist. 1985

Can My Spouse Be Ordered To Pay For My Insurance After My Illinois Divorce?

Illinois law does not require that a former spouse pay directly for their former spouse’s health insurance.

Money is fungible. The same dollar a former spouse pays their ex can be used to pay for food, shelter or health insurance.

“[T]he court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)

Most Illinois maintenance awards are a simple formula called “the guidelines”: 33% of the paying spouse’s net income less 25% of the receiving spouse’s net income with the receiving spouse not to have in excess 40% of the combined incomes after maintenance.

If health concerns are so extreme that a guaranteed health insurance premium payment would be superior to cash in hand, it could (in theory) be ordered by the court.

“Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors set forth in subsection (a) of this Section” 750 ILCS 5/504(b-1)

Those guidelines include items such as “the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties” 750 ILCS 5/504(a)(9)

In reality, the only way a court is going to order health insurance coverage in lieu of straight maintenance is if the parties agree to it.

An agreement to maintenance specifically to pay a health insurance premium would be approved under the relevant factor “any valid agreement of the parties” 750 ILCS 5/504(a)(13).

Such a payment would be treated as being taxable to the payor and would still not force COBRA coverage to go beyond the maximum 18 month mandated period. Presumably, the coverage would be reviewable as each new policy was entered into.

In conclusion, buy your own health insurance after an Illinois divorce…with your former spouse’s money.

To learn more about how to ensure that you can stay insured, contact my Chicago, Illinois family law firm to schedule an appointment with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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