COBRA payments for ex-spouse: What is reasonable?

North Carolina Divorce Law Divorce and Separation Answers
1

My fiancé has been separated from his stbx for a little over 2 years. He filed for divorce in December. His stbx refused service by certified mail, so it was served by the sheriff’s office in the county where she lives. Her attorney just contacted him and requested that he pay her COBRA payment (around $600/mo) for a year. The implication is that she’ll delay things more if he refuses.

He’s already kept her on his insurance a year beyond what he had to do, by not filing for divorce when he first could. He also paid separation support to her for most of the time since he left, even without any agreement. He couldn’t really afford to do so, and lowered the amount from nearly 1/3 of his take-home pay to half that after the first year. He has since stopped paying it. They were married for less than 3 years by the time they separated, and as of last month, it was just 5 years. They had a business together, which he’s left entirely to her. It’s incorporated as a not-for-profit, so it’s not a marital asset, if my understanding is correct. It is her full-time occupation, but it is losing money as it has all along. She owned a house before they married, but he’s not asking for any of the increase in its value during their marriage.

I realize that what’s legally reasonable or possible is different from what a layperson would see as fair, which is why I’m asking you about it. In my opinion, he’s already exceeded any obligation he might have to her. Her pettiness in refusing to sign for the certified mail has actually cost us at least a month’s COBRA payment on me (also about $600) since I’ve recently lost my job & my own health insurance.

  1. Is it likely that she could actually get this ordered? From the other information on your site, it seems that she might qualify as a dependent spouse, but their marriage was very brief.

  2. Is it worth fighting? I suppose only he can decide this, but what are the pros & cons, in your opinion? We can’t really afford an attorney; is this the kind of thing your DIY service can help with?

  3. She’s planning to have elective surgery, but wants to wait until this summer. Would the court be likely to take that into consideration?

  4. He and I started dating 13 months after they separated; would this count as marital misconduct on his part?

Thank you all very much for this forum! It’s an invaluable resource to the community.

2

I can never predict what any one judge would do, but his ex cannot expect that he continue to provider for her indefinitely, and the court will likely agree, especially considering the short duration of the marriage.

I would suggest that your fiancé proceed with the divorce, and if the ex files a counterclaim for support, your fiancé can defend the same by showing what he has done to support her since the separation.

Her surgery should have no negative affect on your fiancé’s case.

Your dating relationship will not affect his alimony obligation as it began well after the date of separation.

3

Thank you for your help.

Another question or six, since I’m afraid his stbx may be inclined to be somewhat vindictive. If she were to sue me for criminal conversation, what would she have to do to prove it?

Could she get my minor child (16) for an eyewitness? That would be a bit ironic, since we did not have sex with her under the same roof until after our engagement this fall. I’d hate for her to be called on, since I think it’s inappropriate for a child to be involved in matters like this.

Is something I said to a friend admissible? How much would discovery obligate me to point her to potential witnesses?

If the stbx got such a suit to court, could either I or my fiancé be compelled to testify to the nature of our relationship, or does the protection against self-incrimination apply in civil suits, too? (By then, we would be married, so would spousal privilege apply?)

Would it be likely to be more expensive to defend a cc suit than to pay for COBRA?

4

For a successful criminal conversation claim she would have to prove that you have had sex with her husband.

A minor can be called to court to testify, but for reasons you state, the judge could refuse to hear testimony from the child.

Anything you have said to persons other than your attorney is admissible in court. If a discovery questions is asked regarding persons who have knowledge of your relationship, you would be required to disclose the names.

The fifth amendment does not apply to civil cases, and the spousal privilege applies only to events occurring during the marriage, not before.

I cannot estimate the cost of defending a 3rd party claim, as the case could be dropped quickly or continue for months, there is just no way to know.