Articles Of Interest

September 26, 2018Author: Demian McGarry


By Demian J. McGarry, Esq.


Around the country, children – and their parents – are settling back into school routines for the year, whether at public, private, charter or other schools. For parents who have, or want, their child(ren) in private schools, but are also considering or undergoing a divorce or child support case at this same time, they often want to know whether and how those costs would be covered by child support.

At Curran Moher Weis, I and my fellow attorneys regularly help parents navigate school choice in child support cases. Here is what you need to know:

There are typically two situations to consider – either you have a child or several children already in private schools, or you want your child to attend private school in the future, such as upon graduation from elementary school to middle school or middle school to high school.  You and the other parent may or may not agree on the choice of private school or whether your child should go to private school at all. Faced with the many other costs of separation, as existing and new financial obligations are divided out, how do you continue to pay for private school or ask for coverage of the costs in the future? And can a parent be required by court order to pay for or contribute towards private school tuition?

As is the case with many aspects of divorce and child support cases, there is no straightforward answer. There are a host of factors a court considers for deciding whether a noncustodial parent should be ordered to contribute to a child’s private school expenses.

Primarily, those factors include:

  • The availability of satisfactory public schools;
  • The child’s prior attendance at private school;
  • The financial circumstances of the parties;
  • The child’s special emotional or physical needs, religious training and family tradition.

These also do not factor to the same degree, nor in isolation, in the court’s decision. Prior or current enrollment in a private school at the time the request for contribution is sought, weighs heavily on the court’s decision. A court does not want to disrupt the continuity of a child’s education and educational environment that includes the child’s peers and school-related extracurricular activities. However, that has to be weighed against the financial circumstances of the parties and the other factors listed.

If your child is not yet enrolled in private school, but you want him/her to be, it is a tougher road to haul to convince a court to add private school tuition on top of a child support obligation.  In this scenario, the other factors come into play as well, such as the quality of the public schools in the area and any special emotional or physical need of the child. The court does not take the degradation of public schools lightly. In these situations, it is often useful to secure an educational consultant to serve as an expert who can provide an objective comparison of the schools to explain what unique need the proposed private school can meet for the child(ren) that their public school cannot. Those unique needs could be related to academics, safety or mental well-being, such as in the case where a public school had repeatedly failed to rectify a bullying situation for the child.

When private school is considered in litigation, it is often the case that the parent desiring private school over a hesitant parent will have to compromise in some way, either by accepting a reduced monthly child support or spousal support award in exchange for the other parent’s contribution to private school, or taking a reduced interest in marital property they would otherwise be entitled to in exchange for the other parent paying for or contributing to private school. To avoid the uncertainty and additional strain that comes with litigating private school cost, it behooves parents to try and reach an agreement on their own.

There are, of course, a litany of other questions to be considered and thus, issues to be navigated. In preparing an agreement, parties need to be mindful of not only the current private school attended or sought after, but any future change. There have been cases where an agreement binds a parent to pay for a particular school and then when a parent seeks to change the private school, is unsuccessful because the parties’ agreement did not anticipate or leave open that possibility. The agreement should include the scope of the obligation:  Will it be only for K-4, K-6 or K-12?  Do the parents want to put a cap on the obligation?  Do you want the parent to pay their obligation directly to the school or to you?  Does the school selection have to be mutual, and if so, can the other parent veto a choice without justifying the reasonableness of their decision?

Finally, if a parent is concerned about the future costs or their own future circumstances, it is important to include a clause that states the court has jurisdiction to modify the private school obligation in a future support proceeding. Otherwise, the parties may be bound by the black letter of their contract and a harsh result could occur with a parent being on the hook who may not be financially able to shoulder the cost.

Fortunately, there is a well- developed body of law on private school tuition contribution, and the experienced domestic relations attorneys at Curran Moher Weis can help guide you in reaching a settlement or litigating your objectives regardless of which side of the issue you may happen to ascribe. Learn more about our talented family law attorneys, and contact us here to set up a consultation.

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