Divorcing parents sometimes have questions about how Maryland divorce courts handle private school tuition and how payment is handled.

Will Private School be Ordered?

Let’s begin by addressing whether private school attendance can be ordered. First, parents do not generally need to worry about a Maryland divorce court ordering private school “out of the blue.” The parents have to want private school for their kids, and the parents have to be able to afford it. Put simply, if the parents are not asking for it, the court will not order private school attendance in the Final Order for Dissolution of Marriage. Of course, as time progresses, the parents are certainly allowed to opt for private school even if the Final Order is silent on the question.

If the parents are disputing private vs. public school, that is a different matter. If the parents cannot ultimately come to an agreement, then the court will have to make a decision about whether to order the children to attend public school. Legally, this is called whether a child has a “particular educational need to attend private or special schools.”

By caselaw, Maryland divorce courts are given a list of six non-exhaustive factors to consider when determining whether a child has a particular educational need to attend a special or private elementary or secondary school. These are:

• The child’s educational history, such as the number of years the child has attended the particular school 
• The child’s performance in the private school
• Whether the family has a history of attending a particular school
• Whether the parents had made the decision to send the child to a particular school prior to their divorce
• Any particular factor that may exist in a specific case that might impact the child’s best interest
• The parents’ ability to pay for the schooling – see Witt v. Ristaino, 118 Md. App. 155 (1997).

Supposedly, none of these factors predominate. Courts are supposed to take a “holistic” approach. However, in truth, the “holistic” approach only applies if the final factor is met — the ability to pay. If the parents cannot afford to pay for private school, there is no point in ordering it.

Who Pays for Private School Tuition?

Typically, the parents pay for the tuition in the same manner and proportion as other forms of child support. If one parent is paying 75% based on that parent’s share of the joint income, then that parent will pay 75% of private school tuition. Md. Fam. Code., § 12-204(i)(1) tuition and costs for attending a private school “may be divided between the parents in proportion to their adjusted actual incomes. Parents can, of course, agree to a different cost allocation. Note also that Maryland divorce courts have the power to make a different division as appropriate.

Contact Waldorf, Maryland, Family Law and Child Custody Lawyer Robert Castro Today

This article has been provided by the Law Office of Robert Castro. For more information or questions, contact our office to speak to an experienced Maryland family law and divorce lawyer at (301) 870-1200. We are Waldorf, MD, Family Law lawyers. Our address is 2670 Crain Highway, Waldorf, MD, 20601.