Health Insurance, Emancipation, and Separation Agreements

In Massachusetts divorces health insurance is a priority concern for judges. It is standard practice to

provide health insurance for children until they are emancipated. In addition, unless there is a remarriage, health insurance is usually provided for an ex-spouse until all children are emancipated. The ex-spouse is may also be included in coverage because in Massachusetts most family health insurance policies cover an ex-spouse at no additional cost. As long as there is a dependant child, a family health insurance policy is needed. It is now time to reconsider the standard approach to health insurance in separation agreements.

Under prior law, once a child graduated from college or was otherwise emancipated, they had to get their own insurance policy. The law did not allow them to be covered under their parents' policies. Obamacare has changed this. We can now cover children under a parent's policy until age 26. If a parent is going to provide insurance for a child after emancipation they should also cover the ex-spouse as well. While a parent may voluntarily cover a child they may find that employers won't cover an ex-spouse unless there is a court order that requires such coverage. Divorce attorneys should anticipate the ability to cover the ex-spouse for an extended period due to Obamacare and draft language to address this.

Not every child will need health insurance coverage from a parent after emancipation. Many children will find employment and obtain health insurance from their employer. If this happens, there won't be a family health insurance policy available to cover the ex-spouse. Whatever language is used in a separation agreement needs to consider this potential.

There is also the issue of the cost of providing post-emancipation health insurance for a child. A family plan will always cost more than an individual plan. Child support in Massachusetts presumes that both parents will contribute to the cost of raising a child. It would be reasonable for the parents to share the cost of post-emancipation health insurance for a child. While a judge can't order health insurance for a child after emancipation, the parties can contract for such insurance. Splitting the cost of the health insurance would constitute consideration to support the contract. In the event the parties later litigate over the enforceability of such a contract, splitting the cost may make the difference between enforceable and non-enforceable.

A good separation agreement should anticipate as many possible changes as possible. Planning for a child and ex-spouse to continue to have health insurance after the child's emancipation should be part of every separation agreement. An experienced divorce attorney should draft language to provide health insurance for this additional period.

Can a physically disabled adult child receive child support in Massachusetts?

Recently, the Massachusetts Appeals Court ruled in the case of Vaida v. Vaida, Mass. App. Ct. No. 13–P–1827 (November 6, 2014) that a father did not have to pay child support for his adult physically disabled child. At first glance, this case seems to establish that a physically disabled child can't collect child support once the child reaches age 23. A closer examination convinces me that this case should not be considered precedent.

In Vaida, the child was a quadriplegic as a result of reckless conduct of the father. The father had been sued and settled the case for 3.5 million dollars. A settlement agreement and releases were executed. The prior settlement is a barrier to collecting child support from the father. Will the result be the same if there is no prior settlement?

Massachusetts allows child support to be collected for an adult child that is under a mental disability and has a court appointed guardian. Feinberg v. Diamant, 378 Mass. 131 (1979) and Eccleston v. Bankosky, 438 Mass. 428 (2003). With both mentally disabled children and physically disabled children the children need to be supported by others. In both cases, the children are unable to earn sufficient money to support themselves. The children must be supported by either the parents or government. If the parents have the ability to support the adult children, then they should do so instead of having taxpayers paying for the care of the children. I see no logical reason for parents of mentally disabled children to pay child support but not parents of physically disabled children.

There is a legal maxim that states “bad facts make bad law.” The Vaida case contains bad facts of the prior settlement. Hopefully, the next time that a case with this issue is litigated the courts will give the question a fresh look and not rely on the Vaida case. If you have a case involving an adult disabled child you should consult an experienced family law attorney.