Ron, this really boils down to two options, and the approach you take is going to be up to you.
I've dealt with an HSA for 6+ years after my divorce, and will provide the two options with my numbers as an example:
- Employer deposit = $1,600 per year ($800 for me, $800 for children)
- Annual deductible = $2,600 per year (traditional health care kicks in once $2,600 is spent on healthcare each year)
- Consider all health care expenses up to $2,600 per year as uninsured expenses
- Keep all HSA funds including deposits for your own use, ex gets no HSA funds
Although there is caselaw showing that HSA funds are shared, your risk of getting punished in court is slim to none because there is no decree wording on sharing HSA funds. The downside is the negative impact on your relationship with your ex, and potential legal fees to have this issue clarified if she takes it to court.
- Pay the first $800 of child care expenses with HSA funds per year, then consider health care expenses from $800 - $2,600 per year as uninsured expenses
- HSA funds designated for the children are shared each year
IMO Option 2 makes the most sense even if your decree doesn't clearly specify this type of agreement.
The decision is up to you. I'll add this disclaimer, I started at Option 1 and moved to Option 2 over time as my relationship with my ex improved.