Health Insurance & Divorce

If you are separated from your spouse prior to the completion of a divorce, you may be dropped from your spouses’ health insurance provider because the company’s benefit plan treats a separation in the same manner as the divorce. This is not unusual and can be only rectified by court order forcing the spouse to restore coverage if no other agreement is made.

In the event your spouse wants to drop you from their health insurance plan, the Federal Law COBRA provides a mechanism by which you can continue the coverage that you have, albeit at a premium for which you would be responsible. If you and your partner decide you will not remain covered under your spouses health insurance plan, you can petition the court to obligate your spouse to cover the cost for COBRA.

Health Insurance coverage for your children may be a part of the separation agreement or divorce settlement. When filing for child support, you may wish to consider including a request for health insurance coverage or additional financial support for health insurance for the children. If you and your spouse cannot agree on the terms, this matter will be brought in front of a judge to decide.

If you are receiving health insurance benefits as part of the divorce settlement and there is a change in the level of benefits due to your former spouses’ job change or the company’s of level of insurance coverage offered, there is little a court can do to intervene. Generally, there is limited selection giving to an individual in employee based plans. If there are children involved in the coverage provided as part of the settlement, you may want to explore having the child support terms amended in order to help in coverage of additional medical costs now being required.

Health insurance benefits are not extended through a separation or divorce unless ordered so by the court or as detailed in the settlement. Even so, the level of benefits generally cannot be guaranteed as employee sponsored plans are not controlled by the individual.

I was recently interviewed for an Associated Press article comparing the divorce laws in France with those in the USA.  In France, if either spouse refuses divorce, the other spouse must either prove adultery or mistreatment or, in the alternative, separate for at least two years, in order to get a divorce.  However, in France, if the couple does agree on the divorce, they can divorce quickly and there is no need to provide any reason to the court for divorcing.  For the couple that cannot agree, the spouse who is seeking the divorce will have a potentially difficult burden of proof, if he or she does not want to wait through a two-year separation.

Thus, in France if the couple can agree to divorce the process is a bit easier than in New York.  In New York, even a couple that agrees to divorce, will need to either separate for one-year prior to divorcing or inform the court that there has been either adultery or other good cause in order to divorce without waiting.

A divorce that does not require a waiting period or the need to allege misconduct is commonly known as a “no-fault” divorce.  New York, unlike most other states in the USA, does not recognize “no-fault” divorce without prior separation.

The big news in France is that, those who want a divorce but cannot get their spouse to agree and, thus, are trying to prove their spouse has committed adultery to avoid waiting two years, may now use cell phone text messages in court as proof.

Similarly, in New York, if you want a divorce, but do not want to wait through a year of separation, you too may find yourself trying to prove adultery or other misconduct in order to get a divorce.  In New York, assuming that your spouse is fighting the divorce, merely claiming that your spouse has committed adultery is not enough.  In addition to the allegation, you will need to prove, through third-party corroboration or other evidence, that adultery has occurred or, at least, that there was both an opportunity and what the court calls a “lascivious desire.”

The trend in France, as in most states in the USA, has been toward making it easier for married couples to divorce.  As recently as 2004 the waiting period in France was six-years.  Thus, as these trends continue, it is likely that no-fault divorce, without prior separation, may one day be available in New York.

It is worth noting that non-French nationals can divorce in France if the parent, with whom the minor children reside, lives in France or if the other spouse, who is not bringing the divorce action, resides in France.

When it comes to divorces that involve children in New York, the first thought that comes to mind is, who gets custody of the kids? Divorce itself is a complicated matter with many facets: emotional turbulence, dividing property, child custody, and many other matters. Yet children are, and should be, the top concern when deciding the terms of a divorce. Traditionally, courts have awarded the mother physical custody of the child or children, and the father is awarded partial custody—mostly commonly every other weekend and shared holidays. Nowadays, more dads are fighting for their rights as fathers and want more involvement with their children’s lives.

You have the right to be involved in your child’s life

As a father, you have the right to be a part of your child’s life—in daily life and when it comes time to making important decisions. These rights are not necessarily inherent in a divorce proceeding; if you want more rights with your child, then you have to ask for them and fight for them. Don’t assume that your spouse will give you equal rights and equal time with the children; you have to make your interests known—to your spouse and to the judge. Tell your spouse how much time you would like to spend with the children, and that you want to be a part of making important decisions regarding their education and other important decisions. Many judges make their custody decisions based on a father’s previous involvement level with his kids, so make a point of the things you have done for your kids and with your kids. You have to show your interest in your children and show how you plan to be involved in their daily life.

You have the right to custody and visitation with your child

Your first line of defense in obtaining fathers’ rights to your children is a joint custody agreement. Under normal circumstances, you have a right to have custody and visitation with your child. New York generally awards joint legal custody to parents. The court will appoint one parent as the primary residual parent, meaning the child resides with that parent most of the time and has visitation with the other parent. Some visitation agreements specify that the child stays with the primary residual parent during the school week, and visits with the other parent on the weekends or every other weekend. A growing number of parents work out shared visitation during the week, so that each parent can spend time with the child during his or her daily schedules and be more involved with school and extracurricular activities. The role of the primary residual parent has been left to the mother in the past, but more fathers are fighting to become the primary residual parent. This may mean changing your lifestyle to accommodate your family obligations—decreased work hours, different work schedule, or even another career that allows you more free time and flexibility. The court will want to know exactly how you plan to have time for taking care of your child.

You have the right to be involved in making important decisions that affect your child

Whether you are the primary residual parent or not, you still have the right to be involved in making important decisions regarding your child’s future—his or her educational choices and choices in medical care and treatment. Parents with joint legal custody have the shared responsibility in making choices for their child. If there is a problem with the child’s current school, both the father and the mother have the right to decide what other educational options are available and which is best for the child. If the child is receiving medical care or counseling, a father has the right to be involved in making the decision about what is best for his child. These important decisions should be discussed and dealt with by both parents. If you cannot work things out, and you feel that you are being excluded from the decision-making process, you can file charges against your spouse for interfering with decision making.

You have the right to be more than just child support!

As the father of your children, you have the right to be more than just the breadwinner. Make it a point that you are there for your children, that you have supported them emotionally as well as financially over the years. The state of New York views you as having half the responsibility for the child, and that doesn’t mean just paying the bills. Call us today to find out how we can protect your father’s rights in a NYC divorce.

In New York, the courts generally decide which parent is the primary residual parent based on a number of factors (parent’s ability to provide for the child, parent’s stability, parent’s lifestyle, etc.) and ultimately what is for the best interest of the child. Once the custody arrangements are made, problems often arise out of disagreements about which parent the child should live with. Sometimes these disagreements are brought on by the parents, where one parent believes the child should live with him and not the mother (or vice versa). At other times, the custody disagreement is brought about because the child is expressing the desire to live with the other parent. In most states, the children cannot choose who they would like to live with, but once they reach a certain age, they can petition the courts to reconsider the custody placement.

Courts will consider a child’s preference at a certain age

In New York, once a child reaches the age of discretion (age varies, but typically 13), he or she can petition the court to modify the custody order. The court will take his or her preference into account along with many other factors. Ultimately, it is not the decision of the child, but rather the decision of the court. The court will review the current situation, considering each parent’s stability, ability to provide for the child, parent’s involvement in the child’s life, the parent’s lifestyle, and other factors. If the parent in question proves to be a stable and willing provider, the court may appoint that parent custody of the child.

Unfit parenting

Some children choose to live with the non-custodial parent because they find their custodial parent to be unfit. Perhaps the custodial parent is frequently absent from the home or does not involve himself or herself in the activities of the child, or even worse, the parent becomes abusive (physically, verbally, or emotionally), or has a drug or alcohol problem. Frequently it is the non-custodial parent who brings up the petition for a custody modification due to concerns for the child’s welfare. If this is the case, the parent and/or child would have to prove to the court that the parent is unfit and ask for custody to be reassigned to the other parent.

Parent never home

A child who is left at home without a parent’s supervision may ask to be placed in the non-custodial parent’s care. Although it is not common, there are times when a custodial parent’s job suddenly requires them to travel out of town, and the child is left home alone. A parent that has a job that requires a lot of travelling may hire a nanny or sitter to care for their child while they’re not home, but the child still prefers the care of a parent. In this type of situation, it is common for the child or the non-custodial parent to petition the court for a custody modification.

Due to the shifting nature of life, there are many situations where a child or a parent feels that he or she should seek a child custody modification. If you or your child is interested in a custody modification in NY, please contact our law offices today.

Some clients have been asking lately, “What is the difference between a regular traditional divorce and divorce mediation or collaborative divorce?”

What is generally advertised with mediation is a way to transform a contested divorce into an uncontested divorce. A contested divorce is any divorce where the spouses cannot agree on one or more issues, such as whether alimony should be paid, how often and when visitation should be, Etc. If the spouses can agree on all issues then the divorce is uncontested. The concept with mediation is that by having both spouses sit down with a neutral third-party mediator they can maybe reach an agreement, and thus, have an uncontested divorce.

The mediator is often an attorney who tries to get the couple to find common ground. It is important to remember, however, that even if the mediator is an attorney he or she is not in a position to give you legal advice. Remember the mediator is trying to force an agreement so he or she may push things in one direction or another. The mediator is looking for that soft spot, where you or your spouse will give in on an issue, so they can close the gap between you and get an agreement. The problem with this process is that, unless an attorney represents you, such agreements are often one-sided. Even a one-sided agreement can be touted by the mediator as a successful mediation, simply because an agreement was reached.

Obviously, if the mediated agreement is one-sided in your spouses favor, the process is not favorable to you. Yet, even if the initial agreement is in your favor, the process still may not work out for you in the end. This is because regardless of the time and money that goes into mediation, one or both spouses will almost always consult an attorney later. So, your mediation experience may play out like this: you and your spouse spend time and money painstakingly going through mediation sessions. Eventually you both reach some sort of agreement, only later to find out that either the agreement is one-sided against you or that your spouse consulted an attorney and has reneged on the agreement.

Remember, a mediated agreement is non-binding, meaning either party can back out. Usually, after consulting with an attorney, one party will want to back out of at least one part of the mediated agreement, at that point, the whole agreement usually goes out the window. Once one party backs out of one aspect of the agreement it can often have a cascading effect resulting in many more issues being renegotiated. This can actually make the divorce process more contentious as the other party may resent their spouses decision to back out of the deal.

Before reaching a mediated agreement it is important to acknowledge that the relationship dynamic between you and your spouse can create an uneven playing field. Divorce is usually an emotional experience and this can interfere with your thinking. Realize, that although he or she might be quite friendly and sympathetic, the mediator is just trying to get you and your spouse to reach some type of agreement and is not there to represent or advise you.

If you have not consulted with an attorney you are probably not fully aware of what your legal rights and responsibilities are. It can be complicated applying New York law to your unique situation. Even the mediator will advise you and your spouse to consult an attorney before finalizing the agreement. If you are considering divorce, you should realize that there is no substitute for having an attorney advise you of what your rights are under the law and what outcome the courts will generally favor. If you do enter into an agreement and later realize that you made a mistake, you might be stuck with it.

Generally, you and your spouse are well advised to each find and consult with an attorney before considering any type of mediation. If you and your spouse are able reach an agreement, with the benefit of the advise of an attorney, there will be no additional step to derail the process, and you may find that it is actually easier, less expensive and, in the end, a smarter way to go about it overall.

Many New York divorce attorneys have been reporting a significant rise in new divorce cases. The explanation most of these attorneys offer is the worsening economy. As the old saying goes, when money stops coming in through the door love often goes out the window. The US Bureau of Labor Statistics reported in October that the unemployment rate in New York had increased by over 25 percent from the year before.
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