In the last blog entry, we introduced this topic and explored the first sentence of the health insurance portion of MGL, chapter 208, section 34, which we set forth in its entirety. It is apparent that a trial judge must make inquiry into spousal health insurance coverage that is available to an alimony payor . On close reading, it is difficult to understand exactly what the meets and bounds of that inquiry are, but plainly it places a priority on providing coverage. This is unsurprising in the current era of health care reform, despite the fact that the section 34 language preceded both the state and federal the individual mandates.
Here, we consider section 34’s relationship to MGL, chapter 208, sections 53 (eff. 3/1/12), which it also preceded. To do so, we take on the third sentence of section 34’s health insurance provision. It says:
In no event shall the order for alimony be reduced as a result of the obligor’s cost for health insurance coverage for the spouse.
And, it remains good law. Yet, the new alimony law, states that:
(e) In setting an initial alimony order, or in modifying an existing order, the court may deviate from duration and amount limits for general term alimony and rehabilitative alimony upon written findings that deviation is necessary. Grounds for deviation may include: …
(3)whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse…
So, which law prevails? The one that says that alimony cannot be reduced by reason of costs for health insurance or the one that states that it may?
Previously, we observed how little the health insurance provision of section 34 has been litigated. This statutory conflict may well change that. As divorce mediators, we help our clients address these matters practically, but as divorce arbitrators, we await, and now need, appellate clarification.
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