Updated: Feb 17, 2021
A divorce can come as a shock to a family's financial structure. During marriage, couples usually develop routines for payment of expenses like mortgages, car payments, kids' extracurricular activities, and private school tuition.
But what happens when a couple separates? Who pays for what?
This issue can be most urgent in the context of children, and especially regarding payment for private school tuition. Suppose your child is enrolled in private school in Los Angeles, where competitive private school tuition can run $30,000+ per year. You're likely trying to maintain the status quo for your child. The last thing you want is more disruption. But how? So you might be asking:
Can a divorcing parent be forced to pay for private school?
Is private school part of child support?
Can the court order a divorcing parent to pay for private school tuition?
How are disputes over private school costs resolved?
The key is to create a path forward, whether in negotiation or litigation, that supports the children’s best interests.
Usually, when divorcing or separated parents can agree to send their children to private school, they can agree on how to apportion the tuition. Some parents choose to pay based on proportional income and assets. Others choose to split the cost evenly. Still others agree that one parent will pay 100% of the tuition.
If the parents agree, they can submit a written agreement to the court for the judge’s signature. Once the judge signs, the agreement becomes a court order. Generally, the court will not get in the way of a parties’ agreement for payment of private school costs.
But problems arise when one parent wants to send the children to private school, and the other does not.
The parent requesting private school might ask the opposing parent to foot the bill, or a portion of it at least. So, what happens when parents don’t agree about payment for private school tuition? They may need to request an order from the court.
First, let’s look at child support. In a California divorce, child support is designed to maintain children’s living
standard and ensure that their basic needs are met.[i] In California, child support is based on a complex calculation that considers the parents' incomes, how much time each parent spends with the child, and any tax deductions that are available to either parent.[ii] The guideline calculation does not expressly include payment for private school tuition. California courts presume that the support guideline amount is appropriate and correct.
When one parent is an extraordinarily high earner, guideline support may render a high enough payment to split the cost of tuition, or one parent may still choose to pay the entire amount. Though a high earner can try to argue that the guideline formula would exceed the needs of the children, the court will look at the circumstances of the specific case.
A child’s lifestyle before his or her parents separated might have included private school, private tutoring, special activities, domestic staff, and first-class travel. In that instance, high guideline child support is likely justified. There are many circumstances in which applying the guideline to a parent who earns, for example, a seven-figure annual income is reasonable considering the circumstances in the case.[iii]
In situations where a parent faces exposure to a high child support order and intrusive financial discovery, it can be worth considering making a generous offer that will comfortably meet the needs of the children and avoid ongoing litigation.
In addition, California courts have discretion to increase the amount of child support beyond the support guideline amount to account for costs related to a child's educational or other special needs.[iv] In order to obtain an order that a parent pay for private school tuition as an educational need, two specific conditions must be met. First, the child must have a special educational need for private education, such as a gifted child or a child who suffers from a disability.[v] Second, the cost must be within the financial means of the payer parent.[vi]
Courts are not limited to school expenses when determining discretionary add-ons. Courts have found that other special needs include payment for activities that the children participated in before the dissolution, such as dance, gymnastics, and other activities. In the view of one court, the purpose of ordering such add-ons is "to mitigate a decline in the children's standard of living postdissolution." [vii] Again, such an order is subject to the determination by the court that the payer has the ability to pay.[viii]
[i] California Family Code §4053
[ii] California Family Code §4055
[iii] See, Marriage of Macilwaine (2018) 26 CA5th 514, 535.
[iv] California Family Code §4062(b)(1).
[v] See, Marriage of Aylesworth (1980) 106 CA3d 869, 879.
[vi] California Family Code §§4053(d), 4061(b)(2).
[vii] See, Marriage of Schlafly (2007) 149 CA4th 747, 760.
[viii] California Family Code §§4053(d), 4061(b)(2).
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