Can My Spouse Cancel My Health Insurance Before the Divorce Is Final in Washington?

You are covered through your spouse's job, the divorce papers have been filed, and now your spouse says they will take you off the plan. For anyone with a prescription to refill or a surgery on the calendar, that threat lands hard.

Washington statutes do not automatically freeze insurance when a divorce is filed. A court order does, and in Snohomish County one is issued automatically: under local rule SCLSPR 94.04(b), the court's automatic temporary order restrains both spouses from changing insurance. In any county, either spouse can also ask for a temporary order under RCW 26.09.060, and the statewide order form has a section written for exactly this: "Do not change insurance." Once the divorce is final, the question shifts from state court orders to federal continuation rights, commonly called COBRA.

Is There an Automatic Freeze When a Divorce Is Filed?

Not under state statute. The summons form set out in Superior Court Civil Rule 4.1 contains no restraining order and no financial restraints.

Snohomish County is different. Under local rule SCLSPR 94.04(b), when a summons and petition for divorce or legal separation are filed in Snohomish County Superior Court, the court on its own motion issues an automatic temporary order. One provision restrains both spouses from assigning, transferring, borrowing against, letting lapse, surrendering, or changing entitlement under any insurance policy of either spouse or of any dependent child, whether medical, health, life, or auto, except as agreed in writing. The petitioner is responsible for serving that order. If your case is filed in Everett, look for it in your court file. Canceling your coverage in violation of it would violate a court order.

What a Temporary Order Can Do

Where no order is in place, or the one in place does not go far enough, either spouse can ask for one by motion. RCW 26.09.060 allows the court to issue a temporary restraining order or preliminary injunction "providing relief proper in the circumstances," including an order against transferring, removing, concealing, or disposing of property.

The statute does not use the word insurance, but the mandatory state forms do. The Motion for Temporary Family Law Order, form FL Divorce 223, lets you ask the court to order your spouse, or both of you, not to make changes to any medical, health, life, or auto insurance policy, and to decide who pays the premiums. The matching order, form FL Divorce 224, has a section headed "Do not change insurance." A spouse restrained under that section must not transfer, cancel, borrow against, let expire, or change the beneficiary of any policy.

Two limits are built into RCW 26.09.060. The court can issue a restraining order without advance notice to the other spouse only if it finds that irreparable injury could result from waiting. And a temporary order ends when the final decree is entered or the case is dismissed. Requests about insurance are often made alongside requests for money, which the article on temporary support during divorce covers.

What If My Spouse Already Dropped Me?

Whether an employer plan allows an employee to remove a spouse in the middle of a plan year depends on that plan's own rules. Two general points apply regardless. First, if a court order barred the change, you can ask the court to enforce it.

Second, federal law anticipates this move. Under the federal COBRA regulation at 26 C.F.R. 54.4980B-4, when an employee eliminates a spouse's coverage in anticipation of a divorce or legal separation, that early cancellation is disregarded in deciding whether the divorce causes a loss of coverage. In plain terms, dropping a spouse early does not erase the spouse's right to elect continuation coverage once the divorce happens. Staying on the plan during the case is what the court order is for.

What Happens to My Coverage After the Decree?

Until the decree is entered you are still married. Afterward you are a former spouse, and employer plans typically stop treating a former spouse as an eligible dependent.

Under 29 U.S.C. 1163, the divorce or legal separation of a covered employee from the employee's spouse is a qualifying event. The former spouse can elect to continue the same group coverage, and under 29 U.S.C. 1162 that coverage can last up to 36 months after the divorce. The plan may charge up to 102 percent of the premium.

The deadline that catches people is in 29 U.S.C. 1166. The plan does not learn about your divorce on its own. The employee or the former spouse must follow the plan's notice procedure promptly. Under 29 C.F.R. 2590.606-3, the plan's notice period cannot end earlier than 60 days after the latest of the qualifying event, the resulting loss of coverage, or the date the person was informed of the notice responsibility and procedure. The administrator generally has 14 days after receiving the required notice to send an election notice. Under 29 U.S.C. 1165, the separate election period must run at least 60 days after the later of the loss of coverage or the election notice.

COBRA has a gap. Under 29 U.S.C. 1161, it does not apply to a group health plan when the employers maintaining it normally had fewer than 20 employees during the preceding calendar year. Washington insurance law offers something for group policies issued by insurance companies: RCW 48.21.260 requires those policies to give a person whose eligibility ends the right to a conversion policy, subject to listed exceptions, with a written application and the first premium due within 31 days after group coverage ends or after notice that it ended, whichever is later.

Individual coverage is the other route. Washington Healthplanfinder treats loss of other health coverage, including through divorce, as a qualifying event for a special enrollment period, and generally requires you to apply within 60 days of the change.

Children's coverage follows separate rules, because a child support order addresses the children's health insurance directly. See who pays for the kids' health insurance and medical bills.

Does Legal Separation Keep Me on the Plan?

Some couples consider legal separation because they stay married on paper. Under RCW 26.09.030, when the person who filed asks for a decree of legal separation instead of a divorce, the court enters the decree in that form unless the other spouse objects and asks for a divorce. The differences are explained in legal separation vs. divorce.

Do not assume it preserves coverage. The federal statute lists "divorce or legal separation" together as a qualifying event, which reflects that a plan may end a spouse's coverage at either one. Whether a legally separated spouse stays eligible depends on the plan's terms, so confirm that in writing before building an agreement around it.

A Worked Example

Elena is covered through her husband Tom's employer, a company with several hundred employees. Tom files for divorce in Snohomish County and says he will remove her from the plan. Elena finds the court's automatic temporary order in the file. It already restrains both of them from changing any insurance policy, so removing her from the plan would violate it. The decree is entered on June 10. Her coverage as a spouse ends under the plan. She checks the plan's notice instructions and sends the required notice herself promptly, rather than assuming the employer or the court will do it for her.

Protect Your Coverage Before It Lapses

A gap in health coverage is far easier to prevent than to repair. If your spouse is threatening to cancel your insurance, or already has, the Law Office of Chad Foster can help you ask the court for the right temporary orders and plan for coverage after the decree. Call 425.785.8679 to talk with a Snohomish County family law attorney.