In today's world, parents often begin planning for a child's education far in advance. Most Los Angeles County residents are not satisfied with their neighborhood public school. Instead, they search for designer private schools in order to provide their children with the best possible educational foundation money can buy. If their children are lucky enough to be accepted into these prestigious programs, parents are then faced with the staggering tuition costs associated with these institutions.

This focus on education does not dissipate simply because a marriage ends. The need for a quality education remains a priority. Unfortunately, the costs of divorce and the death of the community income may cause some parents to question the practicality of exorbitant tuition costs.

In families where one party generates the majority of the income, this analysis becomes even more complicated. If you are the high earner, does California law require you to cover some of (or all of) the costs of private school tuition? If you are the low earner or non-earner, does California law allow you to rely on the other party's higher income to support the costs of private school tuition?

And even in situations where each party's income is relatively similar, does California law impose some kind of equal division of such costs?

Private education as a discretionary "add-on"

The California Family Code sets forth a mandatory formula for child support that theoretically takes into account each parent's "circumstances and station in life" and "ability to pay" child support. This formula, however, does not include "special" and unique child-care expenses a particular family may encounter. In order to provide for these additional expenses, the Family Code has created two types of child support "add-ons"--one entitled "mandatory" and one entitled "discretionary."

Educational costs for a child are deemed discretionary rather than mandatory. This means that a particular judge has the discretion, or the freedom of choice, to determine whether or not she considers the proposed cost to be appropriate as an additional expense to a parent. This requires a party's counsel to make a convincing argument that the private school tuition should, or should not, be paid.

A legal argument for or against such an add-on should address several issues, including, but not limited to, the following:

1. Specific Needs of the Child: Does the child have a special physical or mental disability that is most appropriately addressed at a private institution? If a child has documented and undisputed special needs, a court is very likely to order that they be met.

2. Length of Attendance: How long has the child been attending the school? A court is more likely to order that private school tuition continue if the child has been there for several years and is at a critical stage of development in which removal from the school would be against his or her best interests.

3. Alternatives: Where would the child attend school if he or she did not attend the private institution? What is the reputation of the local public school? Is the neighborhood in which the public school is located safe?

4. Ability to Pay: What is the financial situation of the parties? Can each parent, or one high-earning parent, pay the tuition and still continue to pay for mandated child support and other expenses he or she may have? This factor must always be taken into consideration, regardless of how compelling any other factors may seem. This is because, as a practical matter, many families cannot afford to maintain the lifestyle they lived during the marriage. As a result, nonessential expenses, like private education, must be eliminated.

Allocation of private educational costs

If your counsel is successful in persuading the court to order an add-on for private educational expenses, then the court must also determine how that add-on will be allocated between the parents. If no specific allocation is requested in one's moving papers to the court, the tuition will likely be divided "one-half to each parent." If you believe an alternative allocation is merited, documentation should be presented to corroborate such a belief. One common alternative to the equal division of such add-on expenses is an allocation corresponding to each party's respective income. In this calculation, the court looks to the net disposable incomes of each party, after they are adjusted by counsel to include any spousal support and mandated child support that has already been ordered paid. The court then examines these adjusted incomes, and determines what portion of the add-on would be appropriate for the higher earner to provide. One must exercise caution in advocating this alternative allocation to the court, since a judge may order the standard equal allocation of the add-on if the adjusted net disposable incomes of the parties fail to show a true disparity between the two incomes.