Virginia Divorce and Paying for Private School

In Hampton Roads, we have a lot of different kinds of school districts. In some areas, like Virginia Beach, the public schools are awesome, and many families choose to send their kids to the public schools rather than educate them privately.

In other areas, the public schools aren’t seen as the best option, and many of the more affluent parents choose to educate their children in a private institution. Parents might choose to educate their kids privately for other reasons, too – most notably, probably, for religious instruction.

In a lot of ways, especially when it comes to separation and divorce, choosing a public school is the ‘easiest’ option. At the very least, you don’t have to account for tuition payments later!

That’s the issue, right? Tuition. Because no matter how ‘of one mind’ you and your child’s father were when you decided to enroll your child in a private school, things suddenly seem to change when there’s a separation or a divorce.

I’m dealing with this issue in one of my cases now, which is the reason why I’m here today, writing this.

The husband in my case is insisting that his guideline child support obligation be reduced to account for his paying half of the private school tuition.

My client, for her part, is behaving like a mother; she’s insisting that she doesn’t care so long as the child has continuity and stability in school. When asked about her priorities, keeping her child in private school was at the very top of the list.

What’s the problem, you might ask?

Well, guideline support is – according to the statute – the bare minimum. Regardless of whether a child is in either public or private school, guideline child support is the same.

If my client were to pull the child out of private school and put him in public (not that she would, mind you, but if, hypothetically, she did), she’d still be entitled to guideline support. That’s without having any of that money go towards tuition.

So, in this scenario that this husband is requesting, he’s basically making the mother – who is a lesser wage earner – 100% responsible for the private school cost. Right? Because, even if the kid were in public school, mom would receive guideline support. So, by trying to make sure that his obligation is limited by the guideline support number, which mom would receive in any case, he’s making her completely responsible for the tuition.

And mom, because her main goal is the well being of the child, is disinclined to argue.

But what would a court do?

It’s a good question – and one that I don’t have a hard and fast answer to. I’ve heard it go both ways.

Both that dad’s obligation is only to the guideline support number, and also that the status quo from prior to the separation should be maintained. So, what happens?

Well, you either agree, or you litigate, and it’s up to the court to decide. Reassuring, right? If you litigate, of course, you likely are paying an attorney, and then going to court and rolling the dice. The judge could go either way. I haven’t found that this is a settled point at all.
On the one hand, the court is sensitive to the fact that private school is an additional expense that many families, post divorce especially, really can’t afford. And it’s not really a ‘critical’ expense, in the sense that in every city there are public schools available, and tuition would not be a factor. But that’s failing to take the ‘best interests of the child’ into account, especially during a period that is already highly tumultuous for many families.

Moms are willing to bend over backwards, in general, to keep their kids in their familiar environments, especially if they’re already thriving in school. Dads – and especially THIS dad – are willing to let their kids suffer if it means that their monthly obligation doesn’t increase. Well, maybe that’s harsh – but he is, certainly, willing to foist the entire cost of private school tuition on to his child’s mother, rather than stepping up and paying any portion of it himself, despite being the higher wage earner.

What if circumstances change in the future?

Custody, visitation, and child support are always modifiable in the future based on a material change in circumstances. So, I’d argue that even if there was a more equitable arrangement regarding the payment of the private school tuition, nothing is set in stone.

If someone loses a job or tuition increases past a level that is sustainable, the parties could petition to modify. Again, the question is what’s in the ‘best interests of the child’, but the court is generally sympathetic to these additional financial constraints. After all, private school tuition can be insanely expensive.

All that to say that it’s about as clear as mud what happens, but it’s especially difficult for mothers to navigate.

For more information, to request a copy of our divorce or our custody book for Virginia moms, or to schedule a consultation, give our office a call at 757-425-5200.