Will I be able to keep my health insurance after the divorce?

Whether or not you can keep your health insurance after the divorce will depend on two factors, one of which is in your control and one of which is not. If you are currently on your spouse's health insurance, then they are required by the Rule 411 Automatic Restraining Order to maintain you on your health insurance during the pendency of the Divorce case. However, at the end of the case when you are divorced your status as an eligible dependent on their plan may change.

If your spouse's employer participates in a self-insured plan (usually only the case with very large employers), then the plan is covered by Federal law and not State law, in which case the employer can ignore the Massachusetts' law requiring eligibility of ex-spouses. This means that if your spouse's employer has a self-insured plan then no matter what the Court order states you will likely be terminated from your spouse's health insurance upon the divorce. At that time you will be eligible for COBRA, which is a program that allows for continuation of health insurance coverage for a set period of time so long as you pay 102% of the full premium.

If, however, your spouse's plan is not a self-insured plan then you will be eligible to continue coverage so long as you pay attention to the second factor, which is whether or not your Judgment of Divorce includes language requiring coverage. It is very important to consult with an attorney regarding the proper language to include in a Divorce Agreement to ensure that you will be eligible to continue to health insurance, if your spouse's employer allows for that option.

For more information on how to maintain or find health insurance after a divorce, check out this brochure prepared and distributed by the Massachusetts Attorney General's Office and Health Law Advocates entitled Staying Healthy: A Guide to Keeping Health Insurance After Divorce.

Post-Divorce Problems: My Ex Isn't Following the Judgment

Unfortunately, sometimes the end of a case isn't the end of a dispute. Often two people who just don't get along anymore end up back in court to resolve an issue that arises after the divorce case has ended. Whether the case ended with an agreement (usually called a "Separation Agreement" or a "Divorce Agreement") or with a trial, there will be a judgment dividing the assets and liabilities of the former spouses, and defining any support or other obligations owed to each other, or to any children.

This Judgment can be amended or enforced as necessary and dependent on certain circumstances.  Our next series of posts, entitled Post Divorce Problems, will address some of the common reasons that you could end up back in court, post-judgment.

In some instances, ex-spouses return to court when one party fails to follow the judgment. When the judgment is clear (and unambiguous) as to what that individual is supposed to do, or not do, and that individual violates the judgment, the aggrieved party can file a Complaint for Contempt.  In short, a complaint for contempt is a new lawsuit in which one person is accusing the other person of not following the judgment and requesting sanctions.

There are two types of contempts: civil and criminal. The goal of a civil contempt is to force compliance with the violated court order, and they are far more common than criminal contempts. The goal of a criminal contempt is to punish the other party for violating the earlier court order.  Civil contempts are more common because usually you want the person to be forced to do what they were ordered to do in the first place, not just be punished for their failure to comply.

Click here to learn more about Contempt Complaints.

When does Alimony End?

Until 2011, there was no formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation of duration of alimony. However, on September 26, 2011, Governor Deval Patrick signed into law The Alimony Reform Act of 2011, which became effective on March 1, 2012. The act provides for multiple types of alimony, and for maximum amounts and duration of alimony.

The new law also limits the duration of General Term Alimony:

General Term Alimony Ends Upon:

• Remarriage of the recipient;
• Death of the recipient;
• Death of the payor (though the court may order life insurance or reasonable security for payment of sums due to the recipient in the event of the payor's death during the alimony term);
• Except when the court finds that deviation is warranted, upon the expiration of the duration formula calculated below;
• Upon the cohabitation of the recipient spouse with another person for a continuous period of at least three months (may also result in suspension or reduction instead of termination; 
• Upon the payor attaining the full retirement age when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416.

When duration of marriage is 20 years or less, general term alimony shall terminate no later than a date certain in accordance with durational limits set forth below:

• Marriage of 5 years or less, general term alimony shall be no greater than one-half the number of months of the marriage.
• Marriage of 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 per cent of the number of months of the marriage.
• Marriage of 15 years or less, but more than 10 years, general term alimony shall be no greater than 70 per cent of the number of months of the marriage.
• If the duration of marriage is 20 years or less, but more than 15 years, general term alimony shall be no greater than 80 per cent of the number of months of the marriage.
• The court shall have discretion to order alimony for an indefinite length of time for marriages longer than 20 years.

The deviation factors which could result in a different amount or duration are:

• Advanced age; chronic illness; or unusual health circumstances of either party;
• Tax considerations applicable to the parties;
• Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse;
• Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
• Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;
• Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
• A party's inability to provide for his or her own support by reason of physical or mental abuse by the payor;/li>
• A party's inability to provide for his or her own support by reason of a party's deficiency's of property, maintenance or employment opportunity; and
• Upon written findings, any other factor that the court deems relevant and material.

Even if a duration is set in an order, most of the time alimony is merged into the Divorce Agreement, which means that the amount and duration of alimony can be changed at a later date if either party files a Complaint for Modification and is able to demonstrate to the Court a significant material change in circumstances that warrants a change in the order.

What is the difference between Merger and Survival?

One of the most important legal distinctions for clients to understand when signing a Divorce Agreement (also commonly called a Separation Agreement) is the difference between merger and survival. The distinction between these two designations could mean all the difference in whether an Agreement is fair and reasonable or not. It can affect whether or not you will have to return to court in the future, and could determine issues as important as whether or not alimony can be changed (increased, decreased, added, or eliminated) in the future.

Unfortunately, most pro se parties who prepare Separation Agreements on their own do not understand what this language means. Oftentimes I have also found that parties who used a mediator, but did not review their Agreement with a lawyer, do not fully understand what they've agreed to when it comes to the merger/survival clause. This clause is so important that spending a few hundred dollars to at least review your proposed Agreement with an attorney could save you much more in the long run.

So.... What is the difference between Merger and Survival?

The technical legal definitions of these terms are as follows:

If a portion of the Separation Agreement merges then this means that said portion becomes absorbed into the Judgment of Divorce, and does not exist as a separate entity. Any portion of an Agreement that merges with the Judgment of Divorce is open to modification if one party can show that there has been a significant and material change in circumstances, and that change warrants a change in the Agreement.

If a portion of the Separation Agreement survives then this means that said portion does not combine with the Judgment of Divorce, and continues to exist as a separate contract between the parties. Any portion of an Agreement that survives the Judgment of Divorce is NOT open to modification.

In simple terms:

Merged agreements can be changed in the future.

Survived agreements can NOT be changed in the future.

Although it is very unusual to have property divisions re-opened by the Court, the safest way to ensure that it cannot be is to clearly state that all property division sections survive the Judgment of Divorce. The issue of merging or surviving alimony is often more complicated. For example, while the parties can waive alimony as part of an agreement, that waiver is not forever binding unless the parties also agree to survive that agreement. Obviously this can be a significant difference if there is a change in the future that would warrant an award of alimony (such as one party becoming disabled). We encourage clients to give a lot of thought to this distinction before making a decision on this issue because it could have a significant impact on their future finances.

If you are not sure whether your Agreement protects you when it comes to the merger/survival clause then you should meet with an Attorney to discuss this. To meet with Kelsey & Trask, P.C. you can call us at (508) 655-5980 or e-mail us.

What happens after my Divorce Agreement is approved by a Judge?

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing.  A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

If you filed a Complaint for Divorce then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle).  If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date.

Therefore, for 90 - 120 days after your agreement is approved you are still officially married.  During that "nisi" period you cannot remarry, and your tax and health insurance status will be as if you are married.  Once the "nisi" period passes you are officially divorced.

During and after the "nisi" period your Agreement will remain in effect unless the Judge or the Agreement directs otherwise.  This means that usually immediately after your hearing you start acting as required by the Agreement.  If you owned any joint property, the Agreement will likely require you to complete certain paperwork during this time period, such as transferring car titles, or signing deeds. In addition, if you agreed to the transfer of any retirement account you should complete any necessary QDROs as soon as possible and present them to the court for approval and then the retirement account plan administrators for implementation.

Once these transfers are complete there usually isn't any further work for your attorneys, but there may still be some to-dos for you to successfully complete your divorce. You should review your Separation Agreement to ensure that you are currently in compliance with and continue to comply with all of your obligations.

To assist you in completing these processes we have provided you with a Closing Checklist below:

☐      Pay final bill for professional services & fees to your attorney.

☐      Retrieve original files from your attorney.

☐      Store file in secure, safe location.

☐      Update Post Office with any new information (change of address or name).

☐      Update Registry of Motor Vehicles with any new information (change of address or name), and file updated titles for any motor vehicle transfers required by Separation Agreement.

☐      Close any joint accounts as required by Separation Agreement.

☐      Notify your accountant and/or financial planner of any account changes due to your divorce, and the change in your marital status.

☐      Notify your employer human resources department of change in marital status as of the Judgment of Divorce absolute date.

☐      Except as required by Separation Agreement, update beneficiary designations and authorized users on any accounts (bank, retirement, life insurance, etc.).

☐      Schedule Consult for updating Estate Plan (previous estate plan likely voided by divorce).

☐      Update all online account passwords (bank, credit card, loan, e-mail, social networking, etc.).

☐      If Property Transfer: File Quitclaim Deed with proper Registry, and obtain time-stamped copy for evidence of recording.

☐      If Name Change: Obtain Certified Copy of Judgment of Divorce Absolute (after 90 days) directly from Court.

☐      If Name Change: Provide Certified Divorce Judgment to Social Security Administration with Form SS-5 .

Other Resources:

Modification - In the event of a change in circumstances you may be entitled to a Modification of your Agreement, for more information visit: www.criticalmassdivorce.com/modification

Contempt – If the other party fails to meet an obligation required by the Agreement you may be entitled to Contempt sanctions, for more info visit: www.criticalmassdivorce.com/contempt