by Maria P. Imbalzano, Esq.

Divorcing parties face many financial issues which would not have been issues if they had remained married. With two households and two sets of expenses vying for the same incomes that covered one set of expenses, some extraordinary expenses may have to fall by the wayside, and both parties, as well as their children, may have to live at a decreased standard of living than that enjoyed during the marriage. However, there are some expenses which may be more important than others, or even considered necessary, for the best interests of the children.

In New Jersey, divorced parents are generally obligated to contribute to their children’s college education expenses. But what about the cost of private school? There are over fifteen private high schools in Mercer County and dozens more covering elementary education, thereby giving parents living in this area a broad choice of educational institutions.

With the cost of private school nearing the cost of a college education, it would help if the parties were on the same page with regard to whether their child should attend, or continue to attend, private school. However, in many divorce cases, the parties are at odds on this issue.

If one divorced parent wants the child to go to private school and also wants the other parent to contribute to those expenses, and that other parent refuses to consent and to contribute to said costs, the Court may be called upon to make this decision. In so doing, the Court should consider the following factors:

1. Ability of the non-custodial parent to pay. The Court will analyze that parent’s income, expenses, assets and debts in determining ability to pay.

2. Past attendance of one or both parents at that or a similar private school.

3. Whether children were attending private school pre or post divorce.

4. Prior agreement of the non-custodial parent to pay or to send children to private school.

5.Religious background of the parties and their children if private school is affiliated with a religion.

6. Whether special educational, psychological and/or special needs of the child are met and advanced by such private schooling.

7. Whether it is in the child’s best interest to attend, or to continue to attend, private school.

8. Whether the prior court order or agreement of the parties gives the specific right of school choice to the residential custodial parent.

9. Whether the actions of the residential custodial parent to enroll or to continue to enroll the child is reasonable under the circumstances.

10. Ability of child to respond and prosper from this educational experience.

11. Degree of involvement of both the custodial and non-custodial parent in the children’s education.

12. Whether the residential custodial parent’s views and desires are consistent with past practices regarding private school education.

While the intent of the parties as well as their prior agreement regarding private school are important, there are many times that the agreement is silent with regard to this issue. The children at the time of divorce may be attending public school and dong well, or they may not have been of school age at the time of divorce. The lack of an express agreement regarding this issue does not prevent the Court from considering it at a later time.

Children’s abilities or how they assimilate into their school community may change over the years. Further, the values or goals of parents for their children may change.

A Court will always revisit an issue if it involves the best interests of the children and whether a child should attend a private educational institution raises a very significant issue when it comes to a child’s best interests.

Maria P. Imbalzano is a Shareholder and member of Stark & Stark’s Divorce Group. Stark & Stark, 993 Lenox Drive, Lawrenceville. www.stark-stark.com.

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