Question
What is the name of your state? new york
my wife and i are spitting up and she wants to cancel the health insurance for me and my daughter. we have not done a legal separation or filed for divorce, can she legally drop us from the policy as she is the primary policy holder. i need to have a surgery done on my leg in september and she is threatening to cancel us septemer 1,2004 can she do this. i have offered to pay the insurance payment but she says no. please let me know what my options are. i can get other insurance in the future but there is a pre-existing injury clause for all of the policys i have looked into. thank you for any information you can give me.
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Very important question:
Is the insurance in question a group plan that is sponsored by her employer?
It makes a VERY big difference to the answer.
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the plan is through her employer and we do have to pay into it. she works for the insurance company itself and i dont know exaxtly what our payment are. thank you very much for your help and your quick reply.
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Okay. There are a couple of possibilities, depending on whether the policy is under a Section 125 plan or not. If her portion of the premium is taken out of her paycheck pre-tax OR if she has the option of having it taken out pre-tax, then it is under a Section 125 plan; if her portion of the premium is taken out of her paycheck post-tax and she does not have the option of making it pre-tax, then it is not under a Section 125 plan.
If the policy is under a Section 125, then she can drop you from the insurance ONLY during the company open enrollment period, or when a divorce becomes final. IF the month of August is the open enrollment period, then she can drop you effective September 1; if August is not the open enrollment month, she cannot, but must wait until then. The ONLY time she can legally drop you is during open enrollment OR within 30 days after a qualifying event. A divorce would be a qualifying event. However, at those two times it is entirely up to her whether to drop you from the plan or not. Under the law, there MUST be one open enrollment period per year.
If the policy is not under a Section 125 plan, then she can drop you whenever her employer says she can. MANY employers will also limit dependent drops to when there a qualifying event, such as a divorce, or during open enrollment; however, they are not required to. In most cases, the employer will have determined ahead of time whether they will allow a dependent to be dropped only when there is a qualifying event/open enrollment; however, it is entirely up to them. Again, within the rules set by the employer, it is entirely your wife's decision.
HOWEVER, regardless of any of the above, when and if she drops you from the plan, her employer MUST allow you the option of continuing the coverage at your own expense. This is Federal law* and your wife has NO say in this whatsoever. You could sue her employer if they fail to allow this, so they are not going to let her tell them that they can't. It will NOT be cheap, but it will be cheaper than finding another policy. You can keep it in place at least 18 months and possibly as long as 36 months, depending on several factors that we won't go into at this time. It will be exactly the same coverage from exactly the same carrier and pre-existing issues will not apply. It will be exactly the same as if she had never dropped you from the plan, except that you will be sending monthly payments to the employer or their plan administrator.
The employer has 44 days from the last day of coverage to notify you of your right to continue the insurance. You have 60 days from when you receive the notice to make your decision and notify them of your wish to continue the coverage, and 45 days from the day you notify them, to send in your first check. After that payment will be due monthly. It will be entirely your responsibility to remember to send in the check on time, although they MAY send you reminder notices. They are not legally obligated to, although many employers do so as a courtesy. You will be subject to the same premium increases as the employees, and any changes made to the policy that affect active employees will affect you as well.
The employer MAY legally cancel your insurance until they receive BOTH your application to continue coverage (don't worry about the word application - they MAY NOT LEGALLY deny you) and your first check. Your first check MUST be retroactive from the day you send the check all the way back to when the coverage was cancelled; i.e. if the coverage was cancelled September 1 and you mail the first check November 1, you must pay September and October's premium payment in the first check (and you would do well to send November as well). The employer MUST make reinstatement of the coverage retroactive to the day coverage was cancelled.
So while she may or may not be able to make good her threat of cancellation, she CANNOT prevent you from paying to continue the coverage yourself.
* Federal law requires this for all employers with more than 20 employees who are eligible for the insurance, regardless of whether they are actually on the plan or not. However, NY state law requires it for all employers, regardless of size.
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I live in GA
My question is if anyone can tell me if I would be entitled to health insurance since I've been covered by my husband during the duration of our marriage. When I was filing for a divorce (but dismissed the case) at one time this year, my lawyer at the time told me that I couldn't get health insurance. I'm confused because I've been reading your forums and the advice section on health insurance, and I see where I CAN get health insurance. Please advise!
Thx!
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Lil, please start a new thread instead adding on to Irish's. When you do, please include whether or not your husband's insurance is employer-sponsored group insurance, or individual insurance. It makes a difference.
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cbg,
i have found out that with my wifes policy she does have the option to have her payments taken out post tax. I called the insurance company and asked if this could be done, and was told that there does have to be a qualifying event. i did tell them there has been no divorce or legal separation and was told they would get back to me. when they called back i was told that yes she could drop me from the policy. we have only been separated for about a month and a half and this is not a legal separation can they legally do this. i am going to see a divorce attorney on monday and any help with information i may give him would be great. on a personal note the women i spoke to at the insurance company are all friends of my wife, so i dont know if this is a womans club thing. not trying to sound shovanistic just giving you a heads up. thank you again for any help you might give me you have been very helpfull with all the information you have given me
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cbg,
I have just recived the cobra paper work and it states that the qualifying event the insurance company is using is a divorcr/separation. Does the separation have to be a legal separation or can the insurance company just take her word for it. i was just living with her only a month and a half ago. i would think there must be some form of legal separation that has to take place or insurance comapnys could do this to anyone when a spouse decides they dont want them to be covered by them anymore. i am in the process of getting other coverage but this takes time and i really need to have a surgery done this month. as stated in my last question can the insurance comapny legaly do this. i have to see a divorce lawyer on monday so any information i may give him to help me keep my coverage for just another month or two would be greatly appriciated. the payments for cobra are thru the roof. the monthly payments would use up half of my social security i would not be able to survive if i picked this up. thanks again for any help you may give me
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Irish, I haven't forgotten you; I'm doing some research on your question. Have patience; I WILL get back to you.
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Irish, I have been researching your questions and getting conflicting information when I noticed something. You said she *had the option* of taking the insurance post tax. Does that mean that post tax is optional and she is or has the option to take it PRE tax? This is EXTREMELY important; I need to be sure I have this right.
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cbg,
yes my wife can elect to have the money taken out of her paycheck pre or post tax, it is entirely up to her. i spoke with a woman in the human resouces department and was told that she would need a form for either a legal separation or a divorce decree. she has nothing of the sort. but then i was given to another woman who is a friend of my wifes and she told me it was her policy and she has the right to drop me when she wants. i think this is a little fishy as i am getting conflicting info from two different people in the same department. i have been looking up new york state law also and what i keep finding is that a qualifying event in this case would have to be a legal separation or divorce. i have also called the new york state insurance dept and was given two different answers by two different people. this is very confusing. i have spoke to friends who have been throught divorce an dthey all tell me they were not allowed to drop there spouse until a legal separation took place and lawyers figured out who would cover the other and when that would terminate,which would be the divorce. please help this is becoming very confusing. thanks again for all your help im sure this may help others in the same predicament some day.
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Irish:
Since your wife has the option of having premiums taken pre-tax, even if she has not elected that option (and why on earth not?) then this insurance plan is under a Section 125 plan. Under a 125 plan, there are only two times that an employee can change their enrollment options; at open enrollment, and when there is a qualifying event. Under the law, a divorce or legal separation is a qualifying event. That is the EXACT wording in the law. It does not say, divorce must be final - it says, divorce. I've talked with other HR managers for their opinions and the general consensus is that there MUST be a LEGAL divorce or a LEGAL separation before there is a qualifying event. After all, you could reconcile next month and drop the whole idea of a divorce. Then what?
However, we have no idea when the open enrollment is. Since this is a section 125 plan, there MUST be an open enrollment no less often than once every 12 months. At open enrollment, she can drop you regardless of your legal standing with the divorce, with or without your permission. In other words, there is NOTHING to stop her from dropping you at open enrollment, NO MATTER WHAT. If open enrollment is next month, then she can drop you next month, and barring a court order that says otherwise, you cannot do anything about it.
In order to remain on that insurance after that, CORA is your only option. I realize COBRA is expensive; I was on COBRA myself until about eight months ago. But it is almost certainly going to be less expensive than any comparable individual coverage you can find - that's the whole point of it.
If she succeeds in dropping you from the plan when there is no legal separation or divorce AND IF you can confirm that it was definitely NOT open enrollment, you can file a complaint with the Federal DOL that your COBRA rights were violated. That's not a short process, however, and is not going to give you any help for the short term or your anticipated surgery.
You might want to give some thought to speaking with an attorney. Many give free or low cost initial consultations.
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cbg,
i want to thank you for all of the help you have given me you have been great. i have retained a divorce lawyer and he is in the process of the LEGAL SEPARATION. he has advised me that he can make the insurance coverage part of the separation. and i have contacted apersonal injury lawyer to go after the insurance comapny for illegaly cancelling my coverage and putting off my surgery. im not a sue happy person but this has gotten real personal and i want to sue all of the people that had anything to do with this. i hope that this may help someone in the future, this is a great web site they are very helpfull and go out of there way to help. thanks for everything cbg you have been great. if there is ever anything i can do for you just send me an e-mail.