Health Insurance Issues in Divorce and Custody

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

Divorce

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.

How are Social Security benefits and pension/retirement plans treated for purposes of property division and alimony payments?

Robert and Mary, a Massachusetts couple, have been married for ten years and now want to proceed with obtaining a divorce. During the marriage, Robert worked and Mary took care of the home. They had no children. Because Robert has a pension plan, the question comes up: how does a court handle Social Security benefits and pension/retirement plans in property division and alimony?

In Massachusetts, the property in a divorce is subject to an “equitable division.” This does not mean that each party to the marriage receives an equal share of property in the marriage. Rather, each party to a marriage receives fair and equitable amounts of property, so that each party can experience a similar lifestyle to which he or she grew accustomed during the marriage.

A pension earned during the marriage is generally considered to be a joint asset of both parties, and would likely be equitably divided via a qualified domestic relations order. This is an order that is filed with the Massachusetts Family Court and if approved is given to the administrator of the pension, so that the pension maybe divided between the parties. The division of a pension may be a complex issue because pensions, also including IRA or 401(k) accounts, are not always equal in a dollar for dollar manner, as there may be penalties and taxes associated with them. A family law attorney can help evaluate and value the numerical amounts to handle this complexity on your behalf.

Retirement accounts are also considered to be marital assets in a divorce. As such, retirement accounts would be divided on an equitable basis. This issue becomes complex, however, because the parties must look to the length of the marriage. For example, in the case above, Robert and Mary were married for ten years. Suppose, therefore, that Robert continues to work for another 30 years. His payment to Mary would be one half of the quarter of the account, because his payment is one half of his working life during the marriage.

Alimony is different from property division in a divorce. Alimony is court-ordered support from one spouse to another and is separate from the equitable division of property. In Massachusetts, there are four types of alimony: (1) General Term alimony (provides regular support for a length of time based on the length of the marriage); (2) Rehabilitative alimony (provides regular support until the ex-spouse is able to be self-sustaining); (3) Reimbursement alimony (provides regular or one-time support for a shorter marriage to make up for costs that the ex-spouse paid in supporting the other spouse); and (4) Transitional alimony (provides regular or one-time support).

If a judge decides to award alimony under the common General Term alimony standard, then he or she will review the following factors when deciding whether or not to award alimony or for how much the alimony award should be assigned: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage, and other factors the court considers relevant and material.

Robert and Mary were married for ten years, and the facts indicate that Robert was the sole working person in their family unit. As such, alimony payments would likely be awarded to Mary from Robert. Depending on the type of alimony that the Court determines that Mary would receive, Mary would likely be able to receive alimony payments until Robert’s retirement age. The Massachusetts family court may review several factors in awarding alimony payments to Mary, such as her health and disability (if she has issues such as these), marital lifestyle (she was able to stay at home), and her contribution to the family unit (lost opportunity to work, for example).

If a Massachusetts Justice decides to use this equitable factors approach under General Term Alimony, then the Justice would likely order that Mary receive alimony for seven years, unless Mary remarries or if Robert passes away or if Robert reaches full retirement age. If Mary cohabitates with someone else and has maintained a common household with another person, then Mary’s alimony payments could be ordered to be ceased. It is important that a payor spouse, like Robert, not arbitrarily discontinue payments without the approval from a Massachusetts Justice.

If you are seeking a competent family, pension, retirement, or alimony law lawyer or domestic relations attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission promptly.

Merger Versus Survival of Separation Agreements

Experienced family lawyers guide spouses in emotionally fraught divorce proceedings toward a resolution that terminates the marriage. A separation agreement is a crucial part of that process.

A separation agreement memorializes the terms of that resolution and articulates clearly the parties’ mutual rights and obligations. The separation agreement may either be incorporated or “merged” into the judgment of divorce granted by the Probate Court or may “survive” as an independent contract. It is crucial that the parties understand the difference between merger and survival, and that the separation agreement submitted to the probate judge be carefully written to reflect the parties’ goals.

Regarding a merger: A separation agreement whose terms, by stipulation, merge into the judgment nisi of divorce entered by the Probate Court lacks independent significance. Such an agreement is subject to a party’s motion for modification of support, or an order of contempt for noncompliance from the probate judge. Because the Probate Court is empowered to revise its own judgment in this case, modification and contempt are possible.

Let’s contrast a separation agreement whose terms explicitly articulate the parties’ intent that the provisions merge into the judgment of divorce, but that the agreement stand alone as a contract with independent legal significance. In this case, modification and contempt are not as readily reached by the Court. In fact, a party seeking to modify a surviving separation agreement must demonstrate “something more” than a material change of circumstances warrants a revision. A surviving agreement may be enforced either in Probate Court or in a civil proceeding in Superior Court, as with any other breach of contract action.

For the separation agreement to survive a judgment of divorce, the Probate Court must find that it is fair and reasonable; that it is not fraudulent or the product of coercion; and that the parties agreed on its finality. If that bar is met, the parties’ provisions for dividing the marital property will not be subject to further division by the Probate Court, absent “countervailing equities.” An example of that, allowing for judicial revision, would be one of the former spouses being in danger of becoming a public charge.

A separation agreement can be drafted in such a manner that some of its terms survive the judgment of divorce, whereas other aspects merge into the judgment. If the separation agreement is vague regarding the question of its survival, generally, such agreements are held to survive the subsequent divorce judgment that incorporate its terms. Examining the terms of the agreement in its entirety, the parties’ intent is the decisive factor, rather than the court’s predilection. Inartful drafting of the agreement that contains the word “merged” does not in of itself mean the parties wanted the judgment of divorce to absorb the agreement, if contrary indications of intent are expressed or implied elsewhere in the agreement that the parties meant for the agreement to survive.

Child-related matters, such as visitation, custody and child support, remain subject to modification and contempt orders by the Probate Court, as the former spouses cannot bargain away their children’s right to support from either of the parents.

If you have any questions about divorce or family law issues, call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

Durational Limits on Alimony: New Case Law

As we explained previously, the Massachusetts Alimony Reform Act of 2011 prescribed durational limits for alimony payments. These limits cap alimony based on the length of the parties’ marriage. The limits are imposed at the time the marriage is over—but what exactly does that mean? In the case of multiple filings and counter-filings, for example (as tends to be the case with many divorces) just when is the marriage “over”?

The Appeals Court addressed this issue in a recent case, Sbrogna v. Sbrogna. In that case, the parties were married in 1973. The husband first filed a complaint for divorce in 1990 on the ground of irretrievable breakdown of the marriage; however, no record of service of process on the wife existed. A few months later, the husband filed some motions related to the case. Those motions were never acted on, and two years later, the case was marked “inactive,” though not dismissed or otherwise formally closed by the court.

In 1994, the parties filed a joint motion to amend and a joint petition for divorce based on the irretrievable breakdown of the marriage. The motion to amend was allowed, and the case proceeded as a joint action for divorce. The judgment of divorce was entered in 1994.

In 2016, the husband filed an action seeking to modify his alimony obligations. To do so, he attempted to use the 1990 filing date as the end date of the marriage, as opposed to the 1994 filing date of the joint petition. The husband argued that because of the 1990 filing, the parties were married more than fifteen years but less than twenty years, making his alimony obligation modifiable. The wife filed a motion to dismiss, which was granted. The husband appealed.

The Appeals Court explained the durational limits imposed by the Alimony Reform Act of 2011. Under those limits, a marriage lasting more than 15 but less than 20 years is capped at 80% of the duration of the marriage for purposes of alimony payments. However, those caps do not apply to a marriage lasting more than 20 years—hence the husband’s argument regarding the original 1990 filing date signifying the end of the parties’ marriage.

The Appeals Court then explained that for purposes of alimony, the length of the marriage is defined as the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce. However, the Court noted, the relevant pleading is that which results in a valid judgment of divorce. “To read the statute otherwise would lead to the nonsensical result that service of a pleading that leads neither to a valid divorce nor to an alimony award could nonetheless serve as the basis for calculating the length of the marriage and the duration of alimony, even if the parties reconciled and lived together for decades before ultimately divorcing,” the Court stated.

Because it’s common to have multiple complaints and petitions in divorce cases, any other reading of the statute would be difficult, if not impossible, to enforce, the Court said. As a result of this interpretation, the Court noted that for alimony purposes, the 1994 joint petition must be used as the date for calculating the length of the Sbrognas’ marriage. As such, the husband was not entitled to modification of his alimony payments, because the marriage lasted longer than twenty years, thereby falling outside of the Act’s durational limits on general alimony.

If you have any questions about alimony or any other issues regarding family law, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

A Part-time Job and Its Effect on Alimony or Child Support

In what ways might a part-time job or second job affect alimony or child support payments?

Under Massachusetts divorce law, a spousal support award is not set in stone. Rather, it may be altered by a petition for modification to the court initiated by either party. To prevail, the petitioner must demonstrate that an adjustment of the alimony judgment is warranted because of a material change of circumstances since the earlier judgment was entered.

Likewise, a court may modify an earlier judgment regarding the care and custody of minor children if it determines a material and substantial change in the parties’ circumstances has occurred requiring an adjustment that would be in the children’s best interests. As noted in Section III. (A.) of the 2017 Massachusetts Child Support Guidelines, among the occurrences that justify modifying a child support order are:

  • An inconsistency between the amount of the existing order and the amount that would result from the application of the guidelines;
  • previously ordered health care coverage is no longer available;
  • previously ordered health care coverage is still available but no longer at a reasonable cost or without an undue hardship; and
  • access to health care coverage not previously available to a parent has become available.

Concerning both alimony and child support, a common basis for complaints for modification brought by one party involves the other party either taking on a second job to supplement his or her main income or accepting a part-time position.

In ordering one of the parties in a divorce to pay alimony to the other in the first instance, the court weighs numerous factors, including the length of the marriage, the parties’ age and health, their employability and the sources and amounts of income. To arrive at the parties’ incomes concerning an alimony award, a judge may attribute income to a party who is unemployed or underemployed.

In a spousal support modification action, any income earned by the party paying alimony from a part-time job, second job or through overtime is presumed not to be material to a redetermination of alimony, so long as the party is working more than a “single full-time equivalent position,” and the second job or overtime pay began after the initial spousal support award was entered.

In one case, the former wife appealed her court-ordered rehabilitative alimony payments to her ex-husband. The Appeals Court found the probate court judge had not abused his discretion in making the award, but had erred in determining her ability to pay the amount of spousal support by considering her income both from her full-time position and a part-time job she took on after the judgment of divorce had entered. The appellate court vacated the alimony award and remanded the case to the trial judge. The court held that a party working full-time cannot be considered “underemployed” based on the pay level from a post-judgment second job unless a judge finds supporting evidence that “a basis exists for rebutting the presumption of immateriality applicable to the income earned from the second job.”

The 2017 Massachusetts Child Support Guidelines allow a court considering the best interests of the children to weigh “none, some, or all overtime income or income from a secondary job” from the calculation of gross income for child support purposes. A presumption exists that any part-time job, overtime pay or second-job income not be considered in a future child support order if the payor or recipient parent began receiving such income after the initial child support order was entered.

If you have any questions about alimony, child support, or any other issues regarding family law, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

Parental Kidnapping

Approximately 800,000 children annually are reported missing, according to U.S. Department of Justice statistics—a staggering 2,000 minors daily on average. Family members account for 203,000, more than a quarter, of these child abductions, the National Center for Missing and Exploited Children (“NCMEC”) claims. In 78 percent of child kidnappings, the offender was the noncustodial parent, according to the National Incidence Studies of Missing, Abducted, Runaway and Thrownaway Children (“NISMART”).

Among the reasons cited by parents for violating the custody or visitation rights of their mates by abducting their children are to punish the non-offending parent or to compel reconciliation with the estranged parent. Fear of losing custody or visitation rights, and, in rare instances, shielding the minor from an alleged neglectful or physically or sexually abusive parent, are other reasons underlying parental kidnapping.

Under Massachusetts law, a minor’s relative who takes a child from his or her custodian without lawful authority and intends to hold the youth “permanently or for a protracted period,” is subject to a maximum one year in prison, a thousand-dollar fine, or both. Unlawfully removing the child from the Commonwealth and exposing the minor to danger is punishable by up to a $5,000 fine and a maximum five-year prison term.

Often, an accused parental kidnapper also faces a charge of violating a restraining order. Violation of such an order could result in a maximum fine of $5,000 and up to two-and-a-half years in prison.

Criminal liability against a parent as outlined above pre-supposes an existing court-issued custody order concerning the parents’ children. In a 1989 case, a woman took her five- and three-year-old sons from their Massachusetts home and relocated to Puerto Rico ten days before her estranged husband obtained a temporary custody order, unbeknownst to her.

The mother was arrested for parental kidnapping. The Supreme Judicial Court acknowledged the presumption under Massachusetts law that both parents have equal custodial rights of their children. The Court concluded that a parent who takes his or her children from the other parent before any court proceeding has generated a custody order is not acting “without lawful authority” as defined by the Commonwealth’s statute, and cannot be convicted of parental kidnapping.

At the national level, the Federal Parental Kidnapping Prevention Act requires every state’s appropriate authorities to enforce and not modify (with certain exceptions) any child custody determination made by another state’s court. This full faith and credit provision means that if another state having jurisdiction over a child custody question has pending custody proceedings outside the Commonwealth, a Massachusetts judge, for example, cannot issue a custody order in a non-emergency care and protection hearing involving the same minor without running afoul of the federal Act. The federal statute prevents two states from concurrently assuming jurisdiction over the same custody matter. It considers the resident state of the child or either parent to be the proper forum to resolve the dispute.

Unfortunately, sometimes—especially in particularly contentious divorce proceedings—family lawyers confront false kidnapping claims. Sometimes, these are brought by a vengeful custodial parent against a defendant parent during the latter’s designated visitation period when a child is returned late to the custodial parent. In such instances, experienced divorce counsel can refute spurious accusations through proof that unforeseen circumstances, such as traffic congestion, a delayed or cancelled flight or unexpected injury or illness caused the visitation to exceed the allotted time.

In other cases, noncustodial parents, fearful that their children are targets of physical or mental abuse by the custodial parent, may not return the child after a scheduled visit. When such unilateral action is taken, experienced divorce attorneys will seek relief from the probate court by arguing that the noncustodial parent was acting in the best interest of the child by protecting the youth from an unsafe home environment.

Under Massachusetts law, either spouse in a pending divorce action may petition the Probate and Family Court to issue an order to prohibit the other spouse from imposing any restraint on the personal liberty of the petitioner or his or her minor children during the pendency of the divorce proceedings. Likewise, by statute, a minor over whom a Massachusetts probate court has jurisdiction, either because the child was born, or has resided for at least five years, in the Commonwealth, cannot be removed from Massachusetts without the child’s consent, if he or she is of “suitable age” to give it. If the child is too young to consent, the child cannot be removed without the approval of both parents, unless the Court, upon cause shown, otherwise orders.

If you have any questions about child custody or support or any other issues regarding family law, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.