Who is responsible for medical bills during divorce?
Bills are considered part of the marital estate, and consequently debt is divided in a divorce during the division of property stage. Therefore, which ex-spouse is responsible for paying medical bills will largely depend on whether the divorcing couple lives in a community property state or equal distribution state.
In community property states, property is divided evenly between divorcing spouses. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
The rest of the states are equal distribution states that don't usually give an even 50/50 split on bill payment like community property states tend to do, but instead order who pays what according to each individual case. Other deciding factors in who is legally responsible for paying medical bills during divorce include whether the ex-spouses are living together or legally separated, if the expenses are considered by the court to be necessary care and, in the case of children, what is in their best interests in terms of which parent should make the payments.
Medical bill payment and community property states
In Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, all property obtained during marriage, with the exception of gifts and inheritances, is legally owned equally by both spouses. This joint property basis in these community property states typically does not include gifts, inheritances, and anything owned by either spouse before marriage. These are considered separate property unless a co-ownership by both spouses can be proven, there has been comingling of funds, or there is no clear owner.
In terms of the debt of medical bills accrued during marriage, the nine community property states typically hold both divorcing spouses liable in an even 50/50 split for bill payment. This is true even if all of the costs were amassed by only one spouse. If the bills were accrued before marriage or after legal separation by either or both individuals though, the courts in community property states don't usually consider the debt joint property. For example, if a couple who lived in Nevada had unpaid medical bills spanning before, during, and after their legal separation, only those bills accrued during the time they were legally married—and not before or after—are likely to be considered as community property with both having equal responsibility to pay.
Medical bill payment and equal distribution states
Equal division property laws have evolved from older separate property laws that traditionally saw the husband as the sole legal owner of all marital property. In equal distribution states, which make up the majority of the US, the ex-spouses aren't usually given a 50/50 split of assets and debts. Rather, the court will look at the financial history of each person in order to decide asset redistribution and debt repayment responsibilities.
That being said, the courts in these states do view debt repayment, including who pays medical bills during divorce, as a responsibility of both ex-spouses.
Other deciding factors in who pays medical bills during divorce
In the nine community property states, courts are likely to rule that as long as an unmarried couple lived like they were married, with similar contributions to the relationship, debts such as medical bills should be split. Yet it's often not quite so cut and dried, as courts are more limited in dividing assets with unmarried vs. married couples who are separating.
Unmarried couples in equal distribution states are typically not held responsible for unpaid medical bills. But having an agreement or even a joint account to pay the bills may change the situation to being liable for the debt, as can the type of unmarried relationship status. For instance, if a couple are living in New Jersey as Registered Domestic Partners, they are both likely to be liable for any medical bills accrued during their domestic partnership, as this type of living situation includes both partners being responsible for sharing expenses.
Generally speaking, when a legal separation legally ends the marriage, ex-spouses are not responsible for paying medical bills accrued during this time.
The problem, however, is that not all states recognize legal separation; therefore, they legally see the divorcing couples as still married. The states that don't recognize legal separation are Delaware, Florida, Georgia, Idaho, Mississippi, Pennsylvania, and Texas. It's especially important in these states to have an attorney draw up a legal agreement making it clear who pays medical bills and other debts during the period before the divorce is finalized.
In determining which ex-spouse is liable for paying what bills, courts in all states will typically factor in the concept of necessary care vs. cosmetic procedures. So it's likely that a spouse’s open heart surgery is going to be seen as necessary care, while another spouse’s breast implants probably won't be.
Yet the courts in both community property states and equal distribution states will often take in all information from the couple, especially any past oral or written agreements to pay for cosmetic surgery, so medical bill liability redistribution varies. Necessary care is also used to determine which parent is responsible for paying a child's medical bills.
Best interests of the child
Children have legal rights to proper medical care in all states. The court takes the best interests of the child into consideration when deciding who will pay children's necessary care medical bills during divorce.
For cosmetic or elective surgery costs, the court will hear the situation and may decide that only one parent is liable depending on the specifics of the case.
The court also takes the incomes of both the custodial and non-custodial parent into consideration, as well as who pays and receives child support, because this affects the best interests of the child's financial living situation.
But the outcome will also depend on the divorce agreements and any petitions to have changes made in regards to which parent is responsible for paying the child's medical bills.