Joel R. Brandes and Carole L. Weidman
'SPECIAL RELIEF" is one catchphrase that is not likely to lose
its resonance any time soon. And if you thought the "special relief" angle of
a divorce case meant you were winding down, think again. In these frenzied
times even the simplest of issues takes on mammoth proportions and may be the
key challenge to settling a divorce case. Nowadays though, things are looking
a lot better, so far as statutory guidance.
Domestic Relations Law s236, Part B, Subdivision 8 provides
for "special relief in matrimonial actions." The notion alone is intimidating
to those embracing its meaning; mystifying for sure to the bulk of lawyers.
"Special relief" is a fancy term of art that merely refers to life, health and
dental insurance coverage.
The statute provides:
8. Special relief in matrimonial actions.
a. In any matrimonial action the court may order a party to
purchase, maintain or assign a policy of insurance providing benefits for
health and hospital care and related services for either spouse or children of
the marriage not to exceed such period of time as such party shall be
obligated to provide maintenance, child support or make payments of a
distributive award. The court may also order a party to purchase, maintain or
assign a policy of insurance on the life of either spouse, and to designate
either spouse or children of the marriage as irrevocable beneficiaries during
a period of time fixed by the court. The interest of the beneficiary shall
cease upon the termination of such party's obligation to provide maintenance,
child support or a distributive award, or when the beneficiary remarries or
predeceases the insured.
The mission of the statute is to correct the hardship
situation, created by inadequate insurance coverage, that existed under former
law. Before 1980 the decisions held that in the absence of statutory
authority, a divorce court lacked the power to order life insurance protection
for the family where there was a divorce. [FN1] Unless an agreement provided
otherwise, alimony and child support terminated upon the payor's death. If
there were no insurance coverage for the family, its only source of income
might be, and often was, terminated.
Court-Ordered Protection
DRL s236, Part B, Subdivision 8(a) was enacted to compensate
for the earlier inadequacies of the law. It permits the court, in the absence
of an agreement, to order insurance protection for the family. The husband or
father, for example, may be ordered by the court to "purchase, maintain, or
assign" insurance coverage on his life, naming the wife and children as
irrevocable beneficiaries. Likewise, the statute authorizes the court to
require a spouse to maintain or obtain medical, health and hospital insurance
for the protection of the family. Once the husband's obligation to pay
maintenance and/or child support is ended, however, he is free to cancel the
policies, or to name other beneficiaries.
The need for health, hospital and similar insurance coverage
is doubtless. In the case of both maintenance and child support, in the
absence of an agreement to the contrary, since the support obligation ceases
upon the death of the obligor, it is not a charge against the estate. [FN2]
This means that under former New York law a wife dependent upon alimony lost
that source of support when the former husband died. Also, under former law
the wife might have received no marital property upon divorce and therefore
might become destitute when her alimony payments ceased. The Legislature
resolved the problem by enacting subdivision 8, and in circumstances where the
worker-spouse dies suddenly, this may be one of the most salutary provisions
of the equitable distribution law. This particular provision was drafted
originally by Judge Bernard Meyer.
The life insurance provisions of subdivision 8(a), make
certain, among other things, that the payment of maintenance, distributive
awards and child support are made as ordered. If under subdivision 8(a)
children are required to be designated as the beneficiaries of life insurance,
such designation ceases when they reach majority and another beneficiary may
be named in their place. If under that section the wife is required to be
designated as the beneficiary of the husband's policy, the designation may be
revoked if she remarries or predeceases the insured.
It has been held that where a spouse is denied an award of
maintenance, an award of special relief, such as life insurance, would be
inappropriate because there is no reason for the insurance coverage. [FN3]
Life Insurance
DRL s236, Part B, subdivision 8, authorizes the court to make
an order directing a party to purchase, maintain or assign life insurance on
his or her life and to provide health insurance on both pendente lite
applications and in the final judgment in a matrimonial action. The increasing
importance of provisions for insurance is defied by the absence of case law on
the subject. Only Justice David D. Saxe of the Supreme Court, New York County,
has ventured into discussion of the need for life insurance coverage.
In Merrick v. Merrick, [FN4] Justice Saxe made a pendente lite
order in which he directed the husband to post security of $220,000 or about
one year's temporary support, to be held by the wife as receiver, and directed
that if security were not posted, the wife was entitled to submit a further
order to the court providing for sequestration of the husband's assets.
Justice Saxe also directed the husband to obtain life
insurance coverage of $1 million, naming the wife as irrevocable beneficiary.
He noted that DRL s 236(B)(8)(a) authorizes the court to direct a party to
obtain life insurance and to designate the other spouse as irrevocable
beneficiary and that the statute was enacted to remedy the prior law under
which courts were not authorized to order insurance coverage. [FN5] "The
purpose of subdivision 8(a), therefore, is to make certain that the payment of
maintenance, distributive awards and child support are made as ordered." He
noted that the statute had been applied to pendente lite support awards as
well as final determinations.
In Sullivan v. Sullivan, [FN6] the parties were married in
1958 and separated in 1982. In 1983, the husband commenced a divorce action in
Westchester County. In 1987, after trial, the Supreme Court dismissed the
action, since the husband failed to establish grounds for divorce, while
awarding the wife $8,000 per month maintenance. In 1987, the husband again
sued for divorce this time in Illinois. He was granted a divorce in 1989 on
grounds of irreconcilable differences. The husband then brought an action in
New York for equitable distribution and for a downward modification of the
Supreme Court's prior maintenance award.
Justice Saxe directed the husband to name the wife as
beneficiary of an insurance policy on his life in the amount of $1 million. In
this case, the court had previously made an order requiring the husband to pay
$8,000 per month lifetime maintenance to the 58-year-old wife. Justice Saxe
concluded that the insurance was appropriate because the wife would still have
a right to equitable distribution if the husband died during the pendency of
the proceedings and that her monthly maintenance payments would stop
immediately upon the husband's death, without her having any clearcut
immediate entitlement to funds with which to continue to support herself, as
it was not clear that any ultimate entitlement to equitable distribution would
be sufficient to support her.
Little Comment
Appellate and trial court decisions to date offer virtually
little or no comment on the issue of life and health insurance coverage. In
Zerilli v. Zerilli, [FN7] the Appellate Division simply stated that in view of
the wife's lack of income and assets, the trial court should have granted the
parts of her omnibus motion seeking from her husband life insurance coverage
pendente lite.
In Kalnins v. Kalnins, [FN8] the parties married in 1972 and
the husband abandoned his wife in 1981. Before that the wife suffered
permanent brain damage in an auto accident. The action was commenced in April
1986. The husband, who earned $83,000 a year in 1986, was directed to pay
$3,500 per month permanent maintenance to his 43-year-old wife. He was awarded
all of the marital assets (valued at $411,753). In light of the high permanent
maintenance obligation he was directed to buy a single premium annuity and
bridge life insurance [to assure payments of $3,500 a month for the wife when
he retires at age 65 (cost $150,000)] or a $750,000 life insurance policy for
plaintiff, and medical insurance for plaintiff until she was entitled to
Medicaid.
In Price v. Price, [FN9] the Appellate Division stated that
the husband should have been directed to obtain and keep in effect a life
insurance policy for the benefit of the children, given the husband's age and
the age of his children.
In Delaney v. Delaney, [FN10] the Appellate Division held that
the divorced wife, rather than the infant children of the parties, should be
properly designated as beneficiaries of the divorced husband's life insurance
policies, because the wife would be otherwise unprotected if her husband
predeceased her. Additionally, the children would not be disadvantaged by such
a ruling since it appeared that they had been and would continue to be well
provided for.
In Bofford v. Bofford, [FN11] the Appellate Division held that
the daughter and wife, who received a distributive award from the husband in
the matrimonial action, were entitled to have the husband maintain a life
insurance policy on his life for their benefit that was to be in the amount of
the unpaid balance of the distributive award.
Health Insurance
In addition to "special relief," another practically ignored
provision of DRL s240, which was enacted in 1986 [FN12] and amended in 1993,
provided that where either parent has health insurance available through an
employer or organization that may be extended to cover the child and the court
determines that the employer or organization will pay for a substantial
portion of the premium or any such extension of coverage, the child support
order "shall" require that such parent exercise the option of additional
coverage in favor of such child and execute and deliver any forms, notices,
documents or instruments necessary to insure timely payment of any health
insurance claims for such child. When both parents have health insurance
available to them and the court determines that the policies are
complementary, the court may order both parents to exercise the option of
additional coverage. The Family Court Act had an almost identical provision
referring to "legally responsible relative" rather than parent. [FN13]
Notably, only two appellate decisions since 1980 discuss the
health insurance questions, and not one reported case mentions
employer-provided health insurance coverage.
Shafer v. Shafer, [FN14] held that there was no reason to
require the defendant-husband to go to the expense of buying a new health
policy, since the plaintiff-wife already had insurance coverage for their
child through her employment.
In Jerkovich v. Jerkovich, [FN15] the husband appealed from
portions of a judgment of Special Term that directed him to name his children
as dependents on his health insurance policy without specifying when the
coverage may be terminated. The Appellate Division modified the judgment,
holding that while Supreme Court was expressly authorized to direct the
husband to maintain both his health insurance policy and his life insurance
policy for the benefit of his minor children, it had erred in failing to fix
the duration of such policies.
Amendments in 1993
The health insurance provisions of the DRL and Family Court
Act were amended in 1993 to strengthen them and again make them mandatory. DRL
s240 subdivision 1 and Family Court Act s416 continue to provide that where
employer or organization subsidized health insurance coverage is available
through an employer or organization that may be extended to cover the child
and the employer or organization will pay for a substantial portion of the
premium on such coverage, the court must order the parent to exercise the
option of additional coverage in favor of the child. However, they have been
amended to require that in such case the court must direct the "legally
responsible relative" to enroll the eligible dependents who are to be named in
the order in the plan no later than the third business day of the first
enrollment period allowable under the plans terms of enrollment.
The order must also direct the "legally responsible relative"
to maintain the coverage as long as it remains available to such relative and
a substantial portion of the premium is paid for by the employer or
organization. Upon a finding that a responsible relative wilfully failed to
obtain such health insurance in violation of a Court order, the relative is
presumptively liable for all medical expenses incurred on behalf of such
dependents from the first date such dependent was eligible to be enrolled in
the medical insurance coverage after the issuance of the order of support
directing the acquisition of such coverage. In making an order for employer or
organization provided health insurance pursuant to this provision, the court
must consider the availability of such insurance to all parties to the order
and direct that either or both parties obtain such insurance and allocate the
costs consistent with obtaining comprehensive medical insurance for the child
at reasonable cost to the parties. [FN16]
Family Court Act s416, as amended in 1993, also provides that
the "legally responsible relative" must assign all of the insurance
reimbursement payments to the provider of services or party who actually
incurred and satisfied such expenses. Although this provision is not in the
DRL, the Supreme Court is authorized to make an identical direction by virtue
of its concurrent authority with the Family Court. [FN17]
To provide a mechanism to enforce these provisions, the DRL
and Family Court Act were amended to authorize the issuance of "an execution
for medical support enforcement" pursuant to CPLR s5241 in accordance with the
provisions of the order of support, [FN18] and CPLR s5241, authorizing income
executions for support enforcement, was substantially revised. CPLR s5241(b)
was amended to add a new Subdivision 2, authorizing an "execution for medical
support enforcement," which may be issued by the support collection unit, the
sheriff, the clerk of the court or the attorney for a creditor. [FN19] In
conjunction therewith, Subdivision (a) of CPLR s5241 was amended to add a new
paragraph 11, which defines "health insurance benefits as "any medical,
dental, optical and prescription drugs and health care services or other
health care benefits which may be provided for dependents, through an employer
or organization, including such employers or organizations which are self
insured." [FN20]
CPLR s5241 (b)(2) provides that where the order of support
orders the debtor to provide health insurance benefits to specific dependents,
an execution for medical support enforcement may be issued by the support
collection unit or by the sheriff, or the clerk of the court or the attorney
for the creditor as an officer of the court subject to certain exceptions. The
execution may require the debtor's employer or organization to purchase on
behalf of the debtor and the debtor's dependents such available health
insurance benefits as are ordered by the order of support. The execution must,
consistent with the order of support, direct the employer or organization to
provide to the issuer of the execution any identification cards and benefit
claim forms and to withhold from the debtor's income the employer's share of
the cost of such health insurance benefits.
An execution for medical support enforcement must not require
a debtor's employer or organization to purchase or otherwise acquire health
insurance or health insurance benefits that would not otherwise be available
to the debtor by reason of his employment or membership. Nothing in the
statute is deemed to obligate or otherwise hold any employer or organization
responsible for an option exercised by the debtor in selecting medical
insurance coverage by an employee or member. Note that the "debtor" is defined
in CPLR s5241 (a)(2) as any person who is directed to make payments by the
order of support.
An execution for medical support enforcement may not be issued
where child support orders have been issued pursuant to s413(1)(d) of the
Family Court Act or s240(1-b)(d) of the DRL. These sections deal with child
support orders that are fixed based on the poverty income guidelines amount
and the self-support reserve.
To enforce the foregoing provisions, CPLR s5241(2) was added.
It contains seven notices that must be in an execution for medical support
enforcement. The execution for medical support enforcement must include:
(i) a notice that the debtor has been ordered by the court to
enroll the dependents in any available health insurance benefits and to
maintain such coverage for such dependents as long as such benefits remain
available;
(ii) a notice inquiring of the employer or organization as to
whether such health insurance benefits are presently in effect for the
eligible dependents named in the execution, the date such benefits were or
become available, and directing that the response to such inquiry immediately
be forwarded to the issuer of such execution;
(iii) a statement directing the employer or organization to
purchase on behalf of the debtor any available health insurance benefits to be
made available to the debtor's dependents as directed by the execution,
including the enrollment of such eligible dependents in such benefit plans and
the provision to the issuer of the execution of any identification cards and
benefit claim forms;
(iv) a statement directing the employer or organization to
deduct from the debtor's income such amount which is the debtor's share of the
premium, if any, for such health insurance benefits no later than the first
enrollment period allowable under the applicable provider's terms of
enrollment subsequent to the service of the execution;
(v) a notice that the debtor's employer must notify the issuer
promptly at any time the debtor terminates or changes such health insurance
benefits;
(vi) a statement that the debtor's employer or organization
shall not be required to purchase or otherwise acquire health insurance or
health insurance benefits that would not otherwise be available to the debtor
by reason of his employment or membership; and
(vii) a statement that failure to enroll the eligible
dependents in such health insurance plan or benefits or failure to deduct from
the debtor's income the debtor's share of the premiums for such plan or
benefits shall make such organization jointly and severally liable for all
medical expenses incurred on behalf of the debtor's dependents named in the
execution while such dependents are not so enrolled to the extent of the
insurance benefits that should have been provided under the execution. [FN21]
Further Provisions
CPLR s5241(g) dealing with income executions was amended
[FN22] in 1993 to number it (g)(1) and to provide that it is not applicable to
an "execution for medical support enforcement." Thus, the "mistake of fact"
provisions of CPLR s5241 (a)(8) do not apply to an execution for medical
support enforcement. A new subdivision (2) was added to CPLR s5241(g) to
establish the obligations of an employer, income payor or organization who is
served with an income execution for medical support enforcement.
If the employer, income payor or organization is served with
such an execution, it (a) must purchase on behalf of the debtor any available
health insurance benefits which are required to be made available to the
debtor's dependents as ordered by the execution, including enrolling the
eligible dependents in such benefit plans; (b) must provide to the issuer of
the execution any identification cards and benefit claim forms; (c) must begin
deductions of the debtor's share of the premium from income due or thereafter
due to the debtor for such health insurance benefits no later than the first
enrollment period allowable under the provider's terms of enrollment
subsequent to the service of the execution, and (d): must provide a
confirmation of the enrollment to the issuer of the execution. If the employer
or organization fails to enroll the eligible dependents or to deduct from the
debtor's income the debtor's share of the premium, the employer or
organization becomes jointly and severally liable for all medical expenses
incurred on the behalf of the debtor's dependents named in the execution while
the dependents are not so enrolled, to the extent of the insurance benefits
that should have been provided under the execution. Except as otherwise
provided by law, nothing in the statute is deemed to obligate an employer or
organization to maintain or continue an employee's or member's health
insurance benefits.
FN1. Flatto v. Flatto (1977, 1st Dept.) 59 AppDiv2d 695, 398
NYS2d 687; Enos v. Enos (1973, 2d Dept.) 41 AppDiv2d 642, 340 NYS2d 783.
FN2. N.Y. Dom. Rel. L.240; See, e.g., Byrne v Byrne, 201 Misc.
913, 112 NYS2d 569; Lund v. Lund, 196 Misc. 136, 91 NYS2d 698; Re Van
Ardsdale's Will, 190 Misc. 968, 75 NYS2d 487.
FN3. Rothbaum v Rothbaum (1989, 2d Dept.) 155 AppDiv2d 650,
548 NYS2d 242..
FN4. ___ Misc2d ___, 585 NYS2d 989 (Sup.Ct., NY Co., 1992).
FN5. Citing Foster, Freed & Brandes, Law and the Family, 2d
Ed. 12:1, P.490..
FN6. ___ Misc2d ___, 588 NYS2d 232 (Sup. Ct., NY Co., 1992).
FN7. 2d Dept., 110 AD2d 634, 487 NYS2d 373.
FN8. New York Law Journal, Nov. 16, 1989, p.23, col.3, Sup.Ct.,
NY Co., (Baer, J.).
FN9. 2d Dept. 113 AD2d 299, 496 NYS2d 455, later proceeding
(2d Dept.) 496 NYS2d 464, later proceeding (2d Dept.) 496 NYS2d 689.
FN10. 1st Dept., 114 AD2d 312, 494 NYS2d 4.
FN11. 2d Dept., 117 AD2d 643, 498 NYS2d 385.
FN12. Laws of 1986, Ch 849, Effective Aug. 2, 1986.
FN13. Family Court Act 416, as amended by Laws of 1986, Ch
849, s2, eff. Aug. 2, 1986.
FN14. 1st Dept., 96 AD2d 790, 466 NYS2d 17.
FN15. 2d Dept., 100 AD2d 575, 473 NYS2d 507.
FN16. DRL s240 (1) as amended by Laws of 1993, Ch 59, s1;
Family Court Act, s 416 as amended by Laws of 1993, Ch 59, s1. (Sections 1-33
became effective July 1, 1993).
FN17. Seitz v. Drogheo, 21 NY2d 181, 287 NYS2d 29 (1967).
FN18. DRL s240(2)(b) as amended by Laws of 1993, Ch 59, s4;
Family Court Act s 440(1)(b) as amended by Laws of 1993, Ch 59, s2.
FN19. Laws of 1993, Ch 59, s6, adding CPLR s5241(b)(2).
FN20. Laws of 1993, Ch 59, s5, adding CPLR s5241(a)(11).
FN21. Laws of 1993, Ch 59, s8.
FN22. Laws of 1993, Ch. 59, s8.
Joel R. Brandes and Carole L. Weidman are partners in the firm
of Brandes, Weidman & Spatz P.C., which has offices in New York City and
Garden City. Mr. Brandes is a co-author, with the late Doris Jonas Freed and
Henry H. Foster, of Law and the Family, New York (Lawyers Co-operative
Publishing Co., Rochester, N.Y.) Ms. Weidman is a co-author of the annual
supplements.
8/24/93 NYLJ 3, (col. 1)
