Health insurance and other health-related expenses in family law: an overview.

• Author: Richards, Gregory A., Jr.
• Position: Florida

The precipitous rise of health care costs in recent years has made access to reasonable health insurance much more crucial in family law cases. Just as important is the issue of apportioning the costs of health care for needy spouses or dependent children to other parties. The purpose of this article is to discuss the various ways in which a family Court can provide for a child's or needy spouse's access to health insurance, as well as provide for other health-related expenses. This article also will examine the protections given to former spouses by both federal and state law to ensure their access to health insurance after the dissolution of their marriage.

Responsibility for a Child's Expenses

Since 1986, F.S. Ch. 61 has provided for the continuation of health insurance for the children of divorced parents, so long as such insurance is "reasonably available" to either parent.[1] Section 61.13(1)(b) states in pertinent part: Each order for child support shall contain a provision for health insurance for the minor child when the insurance is reasonably available. Insurance is reasonably available if either the obligor or the obligee has access at a reasonable rate to group insurance. The court may require the obligor either to provide health insurance coverage or to reimburse the obligee for the cost of health insurance coverage for the minor child when coverage is provided by the obligee. In either event, the court shall apportion the cost of coverage to both parties by adding the cost to the basic obligation determined pursuant to s. 61.30(6).

Florida appellate courts consistently have reversed and remanded final judgments that do not provide for health insurance as part of a child support order and that are silent on the issue of whether health insurance is reasonably available to either party.[2] Conversely, a trial court's decision to order one party to maintain health insurance as part of child support, without consideration of whether that insurance is reasonably available to that party, also constitutes reversible error.[3]

When the Florida Legislature first established the child support guidelines in 1989, the statutory formula for calculating child support did not incorporate the costs of health insurance for the subject child or children.[4] In 1993, both [subsections] 61.13(1)(b) and 61.30 were amended to include this expense in the statutory child support formula. Under the revised formula, the health insurance expense is added onto the parents' basic guideline child support obligation to yield an overall child support obligation that is apportioned pro rata to the parents based on their respective incomes.[5] In cases where the custodial parent was responsible for the child(ren)'s health insurance expense, this formula ensured that the noncustodial parent would pay his or her percentage share of this expense. However, in cases where the noncustodial parent was responsible for this expense, the child support formula, when strictly applied, did not properly adjust the noncustodial parent's overall child support payment, thus resulting in a higher net child support obligation for the noncustodial parent. In 1994, [sections] 61.30(8) was amended to correct this problem.[6] The current child support formula now provides for a downward adjustment in the noncustodial parent's child support obligation in an amount equal to the amount already being paid by the noncustodial parent for the child(ren)'s health insurance.[7]

A noncustodial parent can be held responsible for some or all of the child(ren)'s noncovered medical expenses. Florida's appellate courts generally have held that the noncustodial parent's financial exposure from this type of responsibility should at least be limited to "reasonable and necessary" expenses. In the First and Third districts, a parent's exposure under an open-ended obligation to pay for a child's noncovered medical expenses is implicitly limited to "reasonable and necessary" expenses,[8] while the Fourth District requires this limitation to be included in orders addressing this kind of obligation.[9] The Fifth and Second districts additionally require that trial courts set a specific dollar amount or total financial exposure for the party that comports with his or her ability to provide for these noncovered expenses. Such a limitation does not absolve the noncustodial parent of the responsibility for paying an equitable share of any future extraordinary health expenses of the child(ren), as these expenses may be addressed in a subsequent modification action.[10] Extraordinary health-related expenses of a recurring nature can also be factored into the trial court's child support calculation under [sections] 61.30.[11]

A child's health-related expenses can be assigned to parents in cases other than dissolution of marriage actions involving minor children. In domestic violence and paternity cases, child support is determined pursuant to [sections] 61.30; thus, a child's health insurance and other extraordinary health-related expenses can be assigned to the parents as part of the court's child support order.[12] In paternity cases, the court additionally can order the father to pay for the expenses associated with the birth of the child at issue.[13] In cases involving children who have reached the age of majority, the court can order either parent to pay support for any dependent child beyond the age of 18 whose mental or physical incapacity began prior to the child's reaching majority. The court also can require either parent to pay support for any dependent child between the ages of 18 and 19 who is still in high school and who...