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State of the Law
Since 1989 Missouri child support orders have been governed by Missouri Supreme Court Rule 88.01. Pursuant to this Rule, each party to a divorce, custody, or paternity proceeding must submit a support calculation to the Court by completing Form 14. The Court then reviews the Form 14(s) and will enter a support order pursuant to the correctly completed Form 14, except in cases of rare exception.
There are many pieces of data which must be included in the Form 14 in order to properly calculate support. In this article we will explore whether tuition for private elementary, high school, or college tuition may be included under line 6e as “other agreed-upon or court-ordered extraordinary child-rearing costs.” The inclusion or exclusion of this expense can have drastic effects on the final monthly support amount.
When May Private Tuition Be Included In Support?
Generally, private tuition for elementary, high school, or college is not included in Form 14. There are two (2) exceptions, however, when such expense must be included:
- When both parties agree to include private tuition expense; or
- When the parties do not agree, but the Court finds that private education “will meet the particular educational needs of the parties’ child or children.”
The first circumstance is fairly self-explanatory. If the parties are both in agreement that the child should attend a school requiring private tuition, the court will consider such tuition in a child support calculation.
The second circumstance often arises when one parent wishes for the child to enroll in or continue private school while the other parent wishes for the child to attend public school. Missouri law is clear that the court does not require the consent of both parents to include private tuition in its support calculation. In such situation the Judge must make a factual determination, based on specific criteria, whether the private school will meet “particular educational needs.”
Whether or not private education will meet the child’s particular education needs is a question of fact to be determined at trial. The burden of proving such fact is on the party who desires that the child in question attend private school. However, the fact that the other parent does not want to pay tuition is not enough alone to defeat a request that such tuition be included in support calculations.
Courts have routinely held that “particular needs” are not the same as “special needs.” There is no bright line test to be followed in making the particular needs determination, but there are a number of factors courts have previously relied on. Some of the factors to be considered are:
- Continuity of prior/current attendance;
- Specialized educational/athletic programs;
- Academic rigor;
- Need for structured atmosphere; and
- Past school performance (whether good or bad)
The above factors are far from a comprehensive list. The facts of each case are different and should be carefully examined based on the particular needs of the child. An experienced attorney can provide guidance in determining these facts and presenting them in a meaningful way to a Judge.
Effect of Inclusion or Exclusion?
The effect of including private tuition in a child support calculation is dependent on whether the parent paying tuition is the parent who is paying support or the parent who is receiving support.
In instances where the parent paying tuition is the parent paying support, the cost of tuition will act as a deduction on the support obligation. The deduction is not dollar for dollar, meaning that the support obligation is not reduced by the exact amount of tuition. A general, though not exact rule, is that $1.00 of tuition will reduce child support by about $0.35 to $0.50, depending on the parties incomes.
In instances where the parent paying tuition is the parent receiving support, the cost of tuition will act to raise the child support amount. As described above, the increase is not dollar for dollar. A general, though not exact rule, is that $1.00 of tuition will increase child support by about $0.35 to $0.50, depending on the parties incomes.
In instances where the parties each pay a portion of support, they will each receive the appropriate deduction or increase discussed above. This will cause the deduction and increase to partially cancel each other out, but even in cases where tuition is split 50/50 the effect may be to raise or lower the support obligation.
An attorney can assist you in determining the effect of private tuition on your final support obligation.
In future articles we will explore the effect of additional items on child support, including health insurance, work related daycare, and periods of overnight visitation.
Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment!