Health Insurance

An element of child support getting increased attention is medical care, including health insurance as well as dental, ophthalmological and optical, psychiatric and psychological, and other specialized forms of health care. Traditionally, courts have awarded sums specifically for these purposes or have allocated the costs between the parents on some reasonable basis. Some of these costs are also covered by IMDMA §505(a)(2)(a), which allows deviation from the percentage guidelines based on the child’s special needs. E.g., In re Marriage of Ingrassia, 140 Ill.App.3d 826, 489 N.E.2d 386, 95 Ill.Dec. 165 (2d Dist. 1986) (psychiatric bills); Spencer v. Spencer, 73 Ill.App.3d 735, 392 N.E.2d 402, 29 Ill.Dec. 845 (3d Dist. 1979)(emergency dental care); In re Marriage of Thompson, 79 Ill.App.3d 310, 398 N.E.2d 17, 34 Ill.Dec. 342 (1st Dist. 1979)(extraordinary medical and hospitalization premiums).

Moreover, the payor parent is specifically allowed to deduct “[d}ependent and individual health/hospitalization insurance premiums” before arriving at the “net income” from which support will be awarded to the custodial parent. 750 ILCS 5/505(a)(3)(f), 5/505(a)(4).

The protection of children’s rights to health insurance was further strengthened by an amendment to IMDMA §505.2, effective July 1, 1997, specifying the obligation to provide health insurance for dependent children. Although all of §505.2 is relevant and should be read, the most salient portion clarifies the law as follows:

Whenever the court establishes, modifies or enforces an order for child support or for child support and maintenance the court shall include in the order a provision for the health care coverage of the child which shall, upon request of the oblige or Public Office, require that any child covered by the order be named as a beneficiary of any health insurance plan that is available to the obligor through and employer or labor union or trade union. If the court finds that such a plan is not available to the obligor, or that the plan is not accessible to the oblige, the court may, upon request of the oblige or Public Office order the obligor to name the child covered by the order as a beneficiary of any health insurance plan that is available to the obligor on a group basis, or as a beneficiary of an independent health insurance plan to be obtained by the obligor, after considering the following factors:

A. the medical needs of the child;

B. the availability of a plan to meet those needs; and

C. the cost of such a plan to the obligor. 750 ILCS 5/505.2(b)(1).

Section 505.2 also contains a comprehensive enforcement mechanism (§§505.2(c) and 505.2(d)) and includes a provision making it possible for the oblige (the custodial parent) to obtain the necessary information about the insurance directly from the employer (§505.2(f)), eliminating an issue that is often the subject of litigation. Finally, §505.2(b)(3) clarifies that the obligations for insurance that it imposes are in addition to, not in place of, those that the court can impose for health and medical expenses under its general powers to award support.

Section 505.2(d) provides that the dollar amount of the premiums for court-ordered health insurance, or that portion of the premiums for which the obligor parent is responsible, “shall be considered an additional child support obligation” of that parent. Further, failure to provide or maintain the court-ordered health insurance makes the obligor parent liable not only for the dollar amount of the premiums but also for all medical expenses of the minor child that would have been paid or reimbursed by the health insurance policy had it been in place. In addition, the order itself is modifiable by the court based solely on the failure to pay premiums. Id.

In a case of first impression interpreting IMDMA §505.2(d), the appellate court in In re Marriage of Takata, 304 Ill.App.3d 85, 709 N.E.2d 715, 237 Ill.Dec. 460 (2d Dist. 1999), held that the plain and ordinary meaning of §505.2(d) is that the dollar amount of court-ordered insurance premiums is considered as child support and that the obligor is liable to the obligee for the unpaid premiums. Significantly, the statute does not require the obligee to cover the costs of insurance in order to recover unpaid premiums from the obligor.

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