If You Live Together with Your Spouse While Filing For Divorce, Medicaid Counts Both of Your Income

  • Income of both spouses is counted for Medicaid health coverage and medical payments

I recently had a client who filed a fair hearing appeal because of the termination of NJ Family Care Medicaid health insurance. He was in the process of a divorce but living in the same household as his spouse. Both federal regulation 42 CFR §435.119 (b) (5) and state regulation N.J.A.C. §10:78-4.3 assert that countable income for purposes of determining eligibility “shall include the income of all members of the household unit.”  The federal regulations define two different tests to determine a household’s income.  The first, the modified adjusted gross income test, which the State used to calculate your income, defines a household “[i]n the case of a married couple living together, each spouse will be included in the household of the other spouse, regardless of whether they expect to file a joint tax return…or whether one spouse expects to be claimed as a tax dependent by the other spouse.”  42 C.F.R. § 435.603 (f) (4).  The second test, which applies to applicants 65 or older, SSI recipients, or applying for MLTSS, Medicare cost-sharing assistance, or medically needy insurance, states specifically that “[e]xcept for a spouse of an individual or a parent for a child who is under age 21 or blind or disabled, the agency must not consider income and resources of any relative as available to an individual.”  42 C.F.R. § 435.602 [emphasis added].  The state regulation N.J.A.C. 10:78-3.5 defining household unit models the federal regulation, defining a household unit “[i]n the case of the couple without dependent children, the couple only.”

No matter what test you look at, a spouse’s income is attributable to the total income that a person has available for purposes of determining Medicaid health insurance eligibility.  While the client didn’t indicate that she refuses to support him, he did admit that the two of them live together.  Had he been living in a nursing home or rehabilitation center, or the two of you were living under separate roofs, and he made that same argument when applying for benefits, her income would not matter.  But because he is looking for Medicaid health insurance, her income is part of her “household” and attributable to you for purposes of determining eligibility.

For these reasons, your fair hearing appeal will likely be unsuccessful.

To discuss your NJ Medicaid  matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Administration & Probate Attorney

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