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Hi, thank you for your question.
Based on your description of the events, it appears that neither your son nor his wife have actually filed for divorce yet, is that correct?
no, she just left and moved back to her mother - no legal separation or anything - they have no property or children together - they lived with us for the 7 years they were together
Ok, there is no law in Maryland specifying that one spouse has no choice but to carry or maintain health insurance for the other under any circumstance. When either spouse files for divorce (or legal separation), it's typical that the parties will be under court order to maintain any insurance policies while the divorce is pending, such as health insurance, life insurance, etc. But absent an order of the court, no such requirement generally exists. Do you have any particular reason to believe that an exception would apply to your son's case?
No, with his anxiety he is afraid she will be vindictive and take him off the coverage which would mean he would not be able to continue treatment or continue his meds. Is there anything he can do, short of filing for divorce to get the court to provide an order? He was hoping to work things out but she has no interest and frankly he is better off. He was waiting for the year of separation to be over next July and then file for divorce.
To put it differently, there are generally Automatic Temporary Restraining Orders ("ATROs") that go into effect when either party files for divorce. When people think of restraining orders, they tend to think of stalking or domestic violence, but under an ATRO, one is restrained from things like changing insurance.
So the question is what can be done short of filing for divorce. How cooperative is his wife with regard to the health insurance?
A few weeks ago she said she would not take his insurance away but she is now being very nasty, won't return phone calls, limiting access to his stepdaughters etc. so we just don't know what she will do.
The problem is that the court has to have standing to order one spouse to maintain health insurance for the other, and it doesn't stand alone as its own independent cause of action because there is no legal requirement for one spouse to maintain health insurance for the other. It has to be a part of another action. Usually, it's seen as a part of a divorce action, but it could be part of a legal separation or even a restraining order. It could also theoretically be a component of a contract--where the parties have a contract with each other under which the insurance is maintained. Part of the reason I asked how well they were cooperating was to explore the possibility of setting up a contractual obligation.
You mean asking her to sign a contract saying she won't remove him from the health insurance until if/when they are divorced?
The nuances of every situation are different, so this information should not be construed as complete or advice without consulting in person with legal counsel, but that said, you might consider a contract where the husband agrees to pay the wife $300 or whatever per month ongoing and the wife agrees to maintain the husband on her company health insurance.
Naturally, such an agreement would be superseded by a divorce.
My son has no income at all so paying her is out of the question and she actually pays nothing for her health insurance anyway.
So really, the only reason to cut him off the health insurance would be out of spite?
If she would do that, would he have recourse to take her to court for the restraining order to be put in place?
The challenge is that the Automatic Temporary Restraining Orders do not require one spouse to go out and sign the other up for health insurance--they can restrict the parties from changing health insurance. It is possible for one spouse to get an order requiring the other to provide health insurance even if no health insurance was in place at the time of the initial filing, but that would also mean that there was an interruption in the health insurance coverage.
So, if one spouse cuts off the other's health insurance out of spite when no divorce or legal separation is pending, filing for divorce or legal separation would not automatically obligation the spouse to reinstate the health insurance.
So what should he do at this point?
Well, that's really his decision. I am not going to tell him to file divorce against his wife because that's not my place. I'm also not going to tell him to not divorce his wife because it's not my place to say that either. I can just tell you the law and what he does with that information is up to him: (1) a spouse is generally not legally obligated to maintain health insurance for the other spouse, (2) upon filing for divorce or legal separation, a spouse can generally oblige the other to maintain a health insurance policy while the divorce or legal separation is pending, (3) if a spouse cancels the other spouse's health insurance before filing for divorce or legal separation, it's possible to get a court's order to reinstate the insurance after filing for divorce or legal separation, but it isn't automatic and it isn't guaranteed. The reality is that none of the options are going to be great, but this is the hand your son is dealt and he has to do the best that his circumstances allow. Plan
Plan A would be that they lived together in harmony. Plan B would be that they separate but they could still work together on important matters such as this. Unfortunately, they may be on to Plan C.
That is my fear - although he is better off without her - he medically needs the insurance, at least until he can get on Medicaid
thank you for your help.