Health Insurance Issues in Divorce and Custody

What Massachusetts laws govern health insurance during divorce and custody cases?


When seeking a divorce and/or dealing with custody of children, a question that often concerns individuals is the issue of health insurance coverage. This is a great question to bring up to your family law attorney, as every situation pertaining to health insurance is different. When seeking the advice of a family law attorney, it is important to bring all information regarding your health insurance with you. When dealing with a divorce and all its complications, health insurance can be low on the list of priorities, but it can become a point of contention, especially when children are involved.

Generally, during a marriage one spouse who is the holder of a health insurance policy will provide coverage to the other spouse and to the children in the family. Therefore, upon dissolution of the marriage the question remains: who will be responsible for providing the health insurance to the uninsured spouse and if necessary, to the children? To put this answer simply, in Massachusetts, the Judges of the Probate and Family Court, in conjunction with the state insurance laws, determine who is responsible for health insurance coverage.

As with temporary support, at the commencement of divorce proceedings, a judge will address the health insurance issue and enter an order preventing either party from terminating or making changes to their existing coverage. Therefore, during the preliminary stages of the divorce, the insured spouse will be obligated to continue providing insurance coverage to the other. As the divorce proceedings evolve, the judge will decide based on the insurance available to each spouse how coverage will continue. Ultimately the judge decides if the insured spouse is no longer obligated to provided insurance, if they must continue providing coverage, or whether they will be required to reimburse the other spouse for finding independent insurance.

Under Massachusetts law, a spouse who is a member of a group insurance policy, upon divorce will be obligated to provide insurance benefits to the ex-spouse under his or her plan, unless divorce judgment provides otherwise. Coverage under a group plan will continue until remarriage of either the member spouse or until a specific time stated in the divorce judgement.

In addition to determining who will be responsible for providing health insurance upon the divorce, there are other factors to be considered, such as deductible and premium payments and who will bear the burden of paying for medical expenses that insurance does not cover. At the time a divorce is finalized, all of these issues will be addressed and will be a part of the divorce agreement.

Child Custody

Health care coverage is also a concern is when dealing with child custody issues and determining which parent will be responsible for providing the child or children with health insurance. Similarly to spousal health insurance, the question regarding health insurance coverage for a child is governed by Massachusetts family law in conjunction with the state insurance laws. It must also be noted that while a judge must make these decisions in conformance with the laws, the judge will also consider several factors in determining which parent should provide the health insurance for the child. For example:

  • Which parent currently provides health insurance for the child/children?
  • Is the current coverage available at a reasonable cost?
  • Is providing health insurance going to cause a parent “undue hardship?”

Massachusetts law affords parents several avenues for providing health coverage for their child(ren). These options include but are not limited to providing coverage through their employer, choosing to get coverage through MassHealth, or purchasing health insurance independently. Since Massachusetts law considers health care coverage a component of the child custody, it is mandatory that a child’s health care coverage be incorporated into the child support order. Therefore, if neither parent can provide health care coverage for the child, the courts may allow the parents to come to a written agreement that the child will be covered in an alternative way, such as under the grandparent’s insurance.

While navigating the child custody waters, it’s important to discuss with your family law attorney your concerns with providing health care coverage for your child. Generally, absent an agreement to the contrary, a judge can only order a parent who pays child support to provide health care coverage. However, a judge must use discretion and see if the insurance available to the parent can be obtained at a reasonable cost, and whether providing it would cause the parent an “undue hardship.” The Massachusetts child support guidelines provide that if a parent can obtain health insurance from their employer, it will be available at a reasonable cost. For more information about your child’s health care coverage, you may consult the Massachusetts Child Support Guidelines, section II.h.

If the coverage is not available at a reasonable cost or it would cause the parent to experience an “undue hardship,” the judge may not order the parent to provide health care coverage for the child. An undue hardship may arise when providing a child with health care coverage would prevent a parent from making child support payments, or if a child experiences extraordinary health care expenses and the cost would greatly exceed the coverage the parent is able to provide.

Ultimately, health insurance and health care coverage will likely come up in divorce and child custody cases. If you are experiencing family turmoil and are concerned about how it will affect you or your child’s health care coverage it is important to contact a family law attorney to discuss your options. If you need more information about family law, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

Mental Health Issues and Custody: Does Being on Medication Hurt My Chances of Getting Custody of My Kids?

Generally, the court will consider matters of custody by examining what is in the best interests of the child. The best interests of the child standard includes many factors. The court considers the presence of all relevant factors in its custody orders, and each factor, including those having to do with mental health issues, may be weighed differently from the others, depending on the individual facts of the case.

Custody involves both physical custody of the child and legal custody, or the right to make decisions on behalf of the child. Three of the factors which are particularly relevant to the issue of medication are the factor of parental fitness, the factor of ability and willingness of the parent to care for the child, and the factor of health of the parent. Let’s examine each of these three factors below:

1. Parental Fitness and Medication

Unfitness of one parent might clearly disqualify that parent from obtaining custody of the children.

In one Massachusetts case, custody was awarded to the mother after she proved that she was dealing with her depression and emotional issues successfully, despite a short period of hospitalization. The father appealed, but the Appeals Court agreed with the trial judge, noting: “In our opinion, on the evidence before her, the judge could permissibly conclude; (a) that Marie is dealing successfully with her emotional problems; (b) that of the two parents “she despite her problems can offer the children more room for growth”; (c) that Gino has an “obsession with keeping control over the life of his wife and children” which causes much of her stress; and (d) that the welfare of the children will best be served by granting custody to their mother, with liberal and specific rights of visitation for the father.” [1]

Being on medication for mental health issues, then, might actually be a positive factor for the parent seeking custody, as long as the parent can show that the medication is helping the parent overcome mental health issues successfully, and that it does not affect his or her fitness as a parent.

There is a line of cases which does not directly deal with custody disputes but is relevant to this discussion: cases that deal with the termination of parental rights and the care and protection of children. In one recent appellate case, the mother was able to show that she was fit to care for her child, age nine, despite suffering from severe past trauma, ADHD, past substance abuse, and an executive function disorder. In that case, the child also suffered from several mental and emotional issues and was on medication for them. The Appeals Court reversed the trial judge’s order for care and protection of the child.[2]

By contrast, two other cases in which the mental or emotional health of the parent was contested found that the parent in each case was unable to care for her child: in one, the mother neglected to attend necessary treatment;[3] in the other, the mother refused to complete ordered substance abuse programs and had a history of visiting multiple doctors in order to obtain additional prescription drugs. [4]

2. Ability and Willingness of the Parent to Care for the Child and Medication

When the Probate and Family Court examines the ability and willingness of the parent to care for the child, it uses a balancing test—by accepted premise, the rights of each parent are considered to be equal, so the Court will balance and compare the relative abilities and willingness of each parent to care for the child. Lack of interest in the child or motivation to parent, as well as a history of not carrying out parenting tasks, will be relevant to the Court’s comparison.

Note that there are some additional factors which might be at play here and relate to caring for the child: for example, the court might look at the suitability of the parent’s residence, the lifestyle of the parent, and any abuse, substance abuse, or violence. If emotional or mental health issues have interfered with the parent’s ability to provide a safe and stable residence, for example, or perhaps escalated into abuse or violence in the past, then the Court may consider those factors. Or, if emotional or mental health issues have caused serious substance abuse by the parent, the Court again will consider that factor. However, in and of itself, taking lawfully prescribed medication for mental health issues will not disqualify a parent from being awarded custody.

3. Health of the Parent and Medication

Obviously, the physical, mental, and emotional health of each parent is a significant factor in making decisions regarding custody. In several cases, the Court considered the mental or emotional instability of a parent as a decisive factor in awarding custody to the other side. [5]

However, neither physical nor mental illness of the parent will automatically disqualify the parent from custody—rather, it is relevant ONLY when those issues adversely affect the child, or where the parent cannot adequately carry out his or her parenting responsibilities.

Should you have questions about issues of family law and domestic relations, don’t hesitate to call our offices. Schedule a free consultation with us, and one of our competent family law attorneys will reach out to you.

[1] Angelone v. Angelone, 9 Mass. App. Ct. 728 (1980).

[2] In re Laurent, 87 Mass. App. Ct. 1 (2015).

[3] Adoption of Jacques, 82 Mass.App.Ct. 601 (2012).

[4] In re Adoption of Sunil, 79 Mass.App.Ct. 1112 (2011).

[5] See Fort v. Fort, 12 Mass. App. Ct. 411 (1981); Sloane v. Sloane, 349 Mass. 318 (1965); and In re Stephen, 401 Mass. 144 (1987).