Health Insurance After Divorce in Illinois

Can you stay on your spouse's health insurance after a divorce in Illinois?

Not as a spouse, but you may be able to keep the same group coverage as a former spouse under a continuation right. Federal law treats the divorce or legal separation of a covered employee as an event that would otherwise end a spouse's coverage (29 U.S.C. 1163(3)). Illinois spousal continuation and federal COBRA can let a former spouse keep the same group coverage for a period of time.

Which rules apply depends on the plan. Ask the plan administrator, the employer or the insurer in writing which continuation rights apply to your coverage and what the deadlines are. Do this before the judgment is entered, because the notice periods are short.

Illinois spousal continuation

Illinois requires group accident and health insurance policies delivered or issued for delivery in Illinois to offer continuation coverage after a divorce (215 ILCS 5/367.2(A)). The policy must let an employee's spouse and dependent children who are insured under it keep the existing benefits, even though the marriage is dissolved by judgment, without any other eligibility requirements. The rule applies to that kind of policy, so confirm with the employer or insurer that your coverage is one.

The 30-day notice

Within 30 days of the entry of judgment, the spouse who wants continuation must give the employer or the insurer written notice of the dissolution of the marriage (367.2(B)). The employer then has 15 days to notify the insurance company and must send a copy of that notice to the former spouse.

Within 30 days after receiving notice from the employer or the former spouse, the insurance company must notify the former spouse by certified mail that the policy may be continued. The notice includes an election form, the premium amount and payment instructions (367.2(C)). The former spouse must return the election in writing within 30 days after receiving it, or the right to continuation ends. Failure to pay the initial monthly premium within 30 days after receiving the notice also ends it.

Under 55 and 55 or older

For a former spouse under 55 when continuation begins, the monthly premium is the amount an employee would be charged plus the amount the employer would contribute (367.2(D)). Coverage ends at the earliest of these events:

• failure to pay premiums when due;
• the date coverage would end under the policy if the spouses were still married;
• the date the former spouse first becomes an insured employee under another group health plan;
• the date the former spouse remarries; or
• 2 years after continuation began.

When it ends, the former spouse is entitled to convert to an individual policy.

For a former spouse who is 55 or older when continuation begins, different rules apply. Coverage can last until the person qualifies for Medicare, unless an earlier ending event occurs. After 2 years, the premium may include an added amount of up to 20% for administration (367.2(E)).

COBRA after a divorce

Divorce or legal separation of a covered employee is a COBRA qualifying event (29 U.S.C. 1163(3)). For that kind of event, continuation coverage must be available for up to 36 months after the date of the qualifying event (29 U.S.C. 1162(2)(A)(iv)). The coverage must be identical to what similarly situated beneficiaries receive under the plan (1162(1)).

The notice deadline belongs to you. The covered employee or the qualified beneficiary is responsible for notifying the plan administrator of a divorce or legal separation within 60 days after the date of the event (29 U.S.C. 1166(a)(3)). The administrator then generally has 14 days to send the election notice (1166(c)), and the election period is at least 60 days (29 U.S.C. 1165(a)(1)).

COBRA coverage is not free. The plan may charge a premium of up to 102 percent of the applicable premium, payable in monthly installments (1162(3)). Coverage can end early, for example if a premium is not paid on time (1162(2)(C)).

Not every plan is covered. The federal rules do not apply to a group health plan for a calendar year if all employers maintaining it normally employed fewer than 20 employees on a typical business day during the prior calendar year (29 U.S.C. 1161(b)). That is one more reason to ask the plan administrator which rules apply.

Health insurance for the children

The child support order must provide for the children's health insurance. Whenever the court establishes, modifies or enforces a child support order, it must include a provision for the child's health insurance coverage (750 ILCS 5/505.2(b)(1)).

What the support order must say

The order must require that the child be named on any health insurance plan available to the parent ordered to provide coverage. That means a plan available through an employer or a labor or trade union. If no such plan is available, the court may order coverage through a group plan or an independent plan. It first considers the child's medical needs, the plan's availability and its cost (505.2(b)(1)). If the employer or union offers more than one plan, the child is named on the plan in which that parent is enrolled (505.2(b)(2)).

The premium share a parent pays for court-ordered coverage is considered an additional child support obligation. A parent who fails to provide or maintain court-ordered coverage is liable for the medical expenses the insurance would have paid (505.2(d)).

Uninsured medical expenses

The court may order either or both parents to contribute to the child's reasonable health care needs not covered by insurance (750 ILCS 5/505(a)(4)(B)). These include unreimbursed medical, dental, orthodontic or vision expenses and prescription medication. Our guide to the Illinois child support statute explains how the premium is added to the support calculation. For when to get help, read do I need a lawyer for child support.

Planning coverage in the settlement

Decide in the settlement who pays for each person's coverage, for how long, and what happens when continuation ends. A written plan avoids a gap that no one noticed until a claim was denied.

Maintenance and the cost of coverage

The cost of continuation coverage or a new policy belongs in your budget and your financial affidavit. It can also be part of the discussion about maintenance and support. See what a spouse is entitled to in an Illinois divorce and our spousal maintenance page. This article does not give tax advice; ask a tax professional about the tax treatment of premiums.

Timing the judgment

Before entering a divorce judgment, the court must have considered, approved, reserved or made provision for parenting, child support, maintenance and property (750 ILCS 5/401(b)). Coverage questions fit within those issues, so settle them before the judgment. Then calendar the deadlines: the Illinois notice runs 30 days from the entry of judgment, and the COBRA notice runs 60 days from the divorce. Our guide to the marital settlement agreement explains how these terms are written.

Getting help

A lawyer can make sure the settlement and the support order address coverage for you and your children, with deadlines in writing. Our Chicago divorce lawyer page explains how the firm handles divorces in Chicago and Cook, DuPage, Lake and Will Counties, from its office in Chicago.

If you and your spouse agree on every issue, the uncontested divorce fee is $1,500 flat (court filing fees not included); see uncontested divorce in Chicago. Full representation is an initial payment of $1,500 to $2,500, then $500 to $650 per month beginning 30 days after the initial payment while representation remains active. Fees are confirmed in writing before you engage the firm, and no lawyer can promise a particular result.

Consultations are by phone; a free weekend consultation is available by Zoom. Call 312-965-5618.