Previously, we wondered why the legislature tied a trial judge's mandatory inquiry into available health insurance at a reasonable cost to the provision of alimony in M.G.L., chapter 208, section 34. Particularly in view of the individual mandates of MA and now federal law, this seems anachronistic, at best, and begging for reform.
In the recent case of Young v. Young (12-P-1573), a Memorandum and Order Pursuant to Rule 1:28 (a so-called "unreported" decision) the Appeals Court, upheld a Probate Court judgment in which one appellate issue was the husband's complaint that the court had ordered him to provide health insurance for the wife when he was not ordered to pay alimony.
The case did not specify why no alimony issued, but we surmise from the facts reported that this was a forty year marriage and that wife was not yet retired, that either the Husband had passed the statutory retirement age and/or that neither party had "need" for spousal support. The judge did conclude, however, that the health insurance order was justified by the wife's expectation of losing work coverage at retirement and the fact that eventually, both parties will receive low cost health benefits attendant to the onset of the husband's military retirement pay.
Putting aside that these reasons seem to be a non-sequitor (What does the wife's anticipated loss of coverage have to do with coverage now? If she has coverage now, why does she need the husband's? What does post-retirement military health benefits have to do with either?), clearly this trial judge did not feel inhibited from awarding health insurance coverage to a non-alimony recipient.
Under the right circumstances, of course, this is a perfectly sensible result, which raises this question: is it time to look at post-divorce health insurance coverage anew? Since Massachusetts stepped out in front of all other states with its spousal continuation laws, and then with health exchanges and individual mandate, should it not be the first to look at this incredibly important subject comprehensively?
At a minimum, we think that the legislature ought to look at the discrepancies between M.G.L., chapter 208, section 34 and the Alimony Reform Act (can a payor's cost reduce alimony or not?), close the self-insurance loophole for employer-provided coverage (why should large companies with the capacity to absorb employee medical cost risks be exempt from covering ex-spouses where insurance companies are not), clarify portability of post-divorce spousal coverage (discretionary for subsequent employers now) and provide guidance as to what level of coverage and cost can or should be mandated. Importantly, this topic should be covered in one, comprehensive chapter or section of its own. The stakes are way too critical to the security of MA residents to be left to grasping at disparate authorities and guessing at outcomes.
As divorce mediators and family law arbitrators, we feel the need for clarity, consistency and a reflection of broad societal change in this vitally important area.
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