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Tuesday, March 5, 2013

Who pays the child's uninsured medical expenses in a divorce?

While it is often typical for couples to agree to split the uninsured medical expenses in a divorce case, the Massachusetts Child Support Guidelines actually suggest a slightly different approach:

"3) Routine Uninsured Medical and Dental Expenses: The Recipient shall be responsible for payment of the first $250 each year in combined routine uninsured health and dental/vision expenses for all the children covered by this order. For amounts above that limit, at the time of entry of establishing or modifying the support order, the Court shall allocate expenses between the parties without adjustment to the child support order.

4) Uninsured Extraordinary Medical and Dental Expenses: The payment of uninsured extraordinary medical and dental expenses incurred for the children, absent agreement of the parties, shall be treated on a casebycase basis. (Example: orthodontia, psychological/psychiatric counseling, etc.) Where the Court makes a determination that such medical and dental services are necessary and are in the best interests of the child(ren), the Court shall allocate such expenses between the parties."
Routine costs typically include copays, prescriptions and other regular expenses which are not covered by insurance.  One rationale behind requiring the child support recipient to pay the first $250 per year is that for many children routine costs won't exceed that amount, and reimbursement issues between parents is therefore minimized but only up to a reasonable cap.

Of course, parties have the right to deviate from the guidelines and many will agree to simply split these expenses equally.  However, a recent Massachusetts Appeals Court decision suggests that the Judge cannot vary from this approach without making specific findings of fact.  In Murphy v. Murphy 11-P-1032 - (2012)  the appeals court overturned the trial court's order that the Father should pay 100% of the uninsured medical expenses because there were no findings as to why the court deviated from the guidelines.

As a practice tip if you are suggesting that the court deviate from the guidelines, provide the Judge with a clear proposed Findings of Fact stating why that deviation is justified.


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