The Price Tag of Private School & Tuition Decisions

Children walking into school building

School’s out! Despite the empty classrooms, however, schooling decisions are often contemplated and finalized during the summertime. Education is a fundamental piece of a child’s upbringing and choices regarding education are an issue we see for numerous clients. Decisions regarding public versus private school, school districts, religious institutions, and tuition, are often points of contention in divorces and child custody or support case. Education, medical decisions, and religious upbringing, if any, combine to make-up legal custody.

When it comes to children who are attending private school, may a parent be required by the court to pay tuition for that private school? It depends. It is well settled that child support is intended to support the reasonable and necessary needs of a child. Our firm recently had a case where the parties disagreed as to whether their children should attend public or private school. We argued for our client’s children to attend public school as the recent imputation of child support has changed this client’s current financial standing. We made the forward-thinking argument that while they may be able to afford to send one child to private school, the parties certainly would not be able to afford both children’s private school attendance within the next few years and sending only one child to public school is fundamentally unfair to both children. When issues of school arise, our firm gathers as much information as we can about the schools themselves, the school districts, and ranking across the state to ensure the best interests of the child are upheld.

Just as when calculating the child support orders, both parties’ income may be considered by the judge when deciding whether to order a parent pay private school tuition. The needs of children are partly determined by the means/income of the parents. Brooks v. Piela, 814 N.E.2d 365, 365 (Mass. App. Ct. 2004). School tuition is often paid in addition to weekly support but there may be instances where it is paid in place of such general support. This occurred in Larkin-Thomson v. Thomson, 87 N.E.3d 1202 (Mass. App. Ct. 2017), where the court ordered the husband to contribute a large portion of the child’s education costs in lieu of a weekly support order. The judge had the discretion to do so and was justified given the fact that the husband failed to fulfill the child support obligation during the pendency of the action. Additionally, the judge considered all of the Child Support Guideline factors, in particular, the disparity between the parties’ incomes, along with the fact that the wife paid for two years of private secondary education and one year of college after the husband’s halted education-related contributions.However, private school is not always favored and there are certainly cases where the children have been allowed to attend public school over private school.

Additionally, provisions of a parties’ separation agreement in the instance of a divorce action may include language in support of or against private or public school choice. Depending on what is contained in the agreement, this may impact the court’s ruling. The parties in Hardiman v. Hardiman, 60 N.E.3d 1196 (Mass. App. Ct. 2016) shared legal custody of their three children and their separation agreement required them to consult one another regarding their children’s education. “The agreement stated that ‘[a]ll decisions regarding ... selection of educational institutions ... shall be made by both parties in light of the circumstances, needs and desires of the children.’ Furthermore, the agreement states that ‘[t]he parties have agreed that their children shall attend private school.’” At the time of the divorce, the children attended Catholic private school. Eventually, an issue arose as to whether their daughters would continue attending private school. The father wanted them to remain at the private school. However, the mother wanted the girls to attend public school and she took unilateral steps to enroll them in public school without the father’s permission. The court did not find the mother to be guilty of contempt because the lower court did not specify which steps the mother took in “undoubted disobedience of the separation agreement.” In this instance, the court allowed the children to be pulled out of the private school and transferred into a public school.

While in Hardiman v. Hardiman, the parties’ separation agreement carried little weight in terms of informing a choice over private or public school, there are other cases in which the court relies on the parties’ separation agreement in its determination such as in Vedensky v. Vedensky, 771, 22 N.E.3d 951, 954 (Mass. App. Ct. 2014) and Smith v. Edelman, 551, 863 N.E.2d 576, 578 (Mass. App. Ct. 2007).

In Vedensky v. Vedensky, the parties agreed in their separation agreement that they would both be responsible for the expenses of “college or other institutions” for their two children. When the father lost his job, the mother took over payments for their children’s college and private school tuition. The judge found that the mother alone was responsible for the private secondary school tuition because the parties never jointly agreed to the mother’s school choice, and there was no provision in their separation agreement that obligated the father to agree to a private secondary education.

In Smith v. Edelman, the divorced parties originally set forth in their separation agreement that their child would attend private school until sixth grade. When the child reached the seventh grade, the father did not want the child attending private school and the mother did want the child to attend private school. The judge expressly found no material change in the child’s needs since the divorce and despite the increased cost of the child attending private school beyond what the parties had stipulated in the separation agreement, the parties were both still ordered to contribute to private school tuition. “The trial judge specifically found that the children's attendance at private schools was not necessitated by any special educational needs of the children, and that it was the wife, over the husband's objection, who wished the children to continue in private school beyond the grade level addressed in the parties' separation agreement. However, the judge nonetheless ordered the husband to pay two-thirds, and the wife one-third, of the children's respective continuing tuition costs.”

Lastly, it should be noted, like many court actions, seeking an order related to school choice is all about timing. When a party disagrees over school attendance but does not seek relief from the court until after the school selection process is complete, they may have waived their right to object to the school’s cost and their child’s attendance there. Mandel v. Mandel, 906 N.E.2d 1016 (Mass. App. Ct. 2009). Since the timing of when to seek relief from the court is imperative, it is in both you and your child’s best interests to reach out to an attorney so that the issue may be resolved by the start of the school year. It is important to note that to litigate a modification action from filing to judgment oftentimes take 8-12 months therefore it is important to have these discussions early. For example, discussions about a child’s college enrollment should take place in the child’s junior year.

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