This topic was discussed at length a while ago. I just had cause to research it more thoroughly, and thought I'd share the result since it comes up often. It appears that "the answer" is that medical insurance can be maintained if a judgment of separate maintenance is entered, but not if a judgment of divorce or of limited divorce is entered. There is case law stating that the former is not a "separation" under the law (hence the "legally separated" exclusion in the State manual doesn't preclude continuing medical coverage), the latter is a legal separation:
Bill -
Jerry sent me additional information today, which, combined with the start I'd made yesterday, answers the question.
In summary, the state's position on maintaining health insurance benefits when a limited divorce is in place is contradictory. According to Fact Sheet 48, the only family status change that they are concerned about is "or dissolution of a civil union or domestic partnership" -- not separation. This is further confirmed by the section entitled "When Health Benefits Coverage Ends", which states that a dependent is to be removed "as a result of a change in family status, such as .[death].. divorce, dissolution of a civil union or domestic partnership." It clearly requires that the member "must submit a Health Benefits Application through your employer to delete the dependent."
However, Fact Sheet 48, "Health Insurance For a Former Spouse Or Partner" cites a "loss of health insurance coverage (including dental and prescription drug) due to divorce, dissolution of a civil union, or legal separation" and gives the information regarding time periods for COBRA.
This is inherently contradictory. Fact Sheet 48 refers to a "former spouse or partner", but with a limited divorce there is no "former" spouse, there is a current spouse from whom one is legally separated.
As I'm sure you're aware, the Capodanno case, 602 F.2d 64 (3d.Cir.1979) ( https://bulk.resource.org/courts.gov/c/F2/602/602.F2d.64.78-2211.78-2210.html ) and Weinkrantz v. Weinkrantz, 129 N.J.Super. 28 (App.Div.1974) are both 100% clear that a judgment of limited divorce decrees a judicial separation, a judgment of separate maintenance does not.
Most significantly, a judgment of separate maintenance does not permit the filing of individual tax returns. They must file either jointly or married filing separately. Under a judgment of limited divorce, the parties must file individual returns.
So, the bottom line is that we can amend the complaint to seek separate maintenance instead of limited divorce so that your client can maintain health insurance, but this would be imposing a de facto lifetime obligation on my client as he would have to pay higher taxes (married filing separately or joint rate rather than individual). Even if he had a dependant in the future, he would not be able to claim Head of Household and could never file as an individual. Obviously, we agreed to settle the alimony issue, which, in any case, would only have lasted 5-7 years. Entering a judgment of separate maintenance will impose a lifetime obligation on him.
He will agree to the judgment of separate maintenance, but your client would have to cover the increased taxes he would pay. I'm not an accountant and wont guesstimate how much they would be. I think the only way the parties could address it would be to use a mutually agreeable accountant each year to calculate the hit he is taking.
In the alternative, we can go ahead with the limited divorce, and your client can rely on the discrepancy in the regulations (whether separated parties can maintain coverage), but this would be at her own risk.
- Dave
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David Perry Davis, Esq.
http://www.dpdlaw.com/notable.shtml
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Justice James C. Nelson in holding that
'Citizens United' Does Not Apply In Big Sky State - :
"It should be noted that the Montana Corrupt Practices Act was adopted in 1912 at a time when the country's focus was on preventing political corruption, not on protecting corporate influence."
Family Status Changes - Employees
All Funds
A family status change is a personal event that can have an impact on many aspects of your employee benefits (pension, life insurance, health insurance, etc.). Use this fact sheet as a guide to updating information pertaining to your pension and benefits for the following family status changes:
• Marriage, civil union, or domestic partnership;
• Addition of a newborn child, adopted child, stepchild, foster child, or legal ward to your family;
• Divorce or dissolution of a civil union or domestic partnership; or
• Death of a family member.
and
When Health Benefits Coverage Ends
To remove a dependent from your health coverage as a result of a change in family status, such as the death of a dependent family member, divorce, dissolution of a civil union or domestic partner-ship, you must submit a Health Benefits Application through your employer to delete the dependent. The dependent's coverage will be terminated upon the timely receipt of the application by the Health Benefits Bureau.
Neither of the above includes legal separation.
However, see fact sheet 42:
HEALTH INSURANCE FOR A FORMER SPOUSE OR PARTNER
For loss of health insurance coverage (including dental and prescription drug) due to divorce, dissolution of a civil union, or legal separation, your former spouse or partner is entitled to continue participation in the State Health Benefits Program (SHBP) or School Employees' Health Benefit Program (SEHBP) under the provisions of COBRA for a period not to exceed 36 months.
https://bulk.resource.org/courts.gov/c/F2/602/602.F2d.64.78-2211.78-2210.html
602 F.2d 64
79-2 USTC P 9447
Lilley CAPODANNO, Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE, Appellee.
R. T. CAPODANNO, Appellee,
v.
COMMISSIONER OF INTERNAL REVENUE, Appellant.
Nos. 78-2210, 78-2211.
United States Court of Appeals,
Third Circuit.
Submitted under Third Circuit Rule 12(6) March 23, 1979.
Decided June 20, 1979.
1
Joseph Schoenholz, Newark, N. J., for appellant in 78-2210.
We deem Weinkrantz v. Weinkrantz, 129 N.J.Super. 28, 322 A.2d 184 (App.Div.1974) to be in point. There, the wife, living apart under a decree of separate maintenance issued under N.J.S.A. 2A:34-24, secured an order that, among other things, required her husband to file a joint income tax return for the year 1972.
7 On the husband's appeal the order was affirmed, the Court holding flatly that
a New Jersey decree of separate maintenance does not effect a legal separation. The Court said:
19
A judgment for separate maintenance entered pursuant to N.J.S.A. 2A:34-24, such as the judgment of separate maintenance dated March 11, 1969 here under consideration, goes no further than to adjudge that the husband without justification abandons and separates himself from his wife and refuses and neglects to maintain her. Such a judgment is actually just a money judgment determining the financial extent of the husband's duty to support his wife and children, if any. See 10 N.J. Practice (Herr, Marriage, Divorce and Separation (3d ed. 1963), § 525 at 446-447. While a judgment for separate maintenance recognizes the existing De facto separation of the husband and wife, it does not sanction or authorize it. A judgment of divorce from bed and board (limited divorce) obtained pursuant to N.J.S.A. 2A:34-3 is significantly different from a judgment for separate maintenance in this respect.
A judgment of divorce from bed and board decrees a judicial separation (Rudin v. Rudin, 104 N.J.Eq. 524, 526, 146 A. 351 (Ch. 1929); Mueller v. Mueller, 95 N.J.Super. 244, 247, 230 A.2d 534 (App.Div.1967)), as does a judgment of divorce (absolute divorce) obtained pursuant to N.J.S.A. 2A:34-2.