By: Curtis Wiberg
Plog & Stein, P.C.
In my career as a family law attorney, I have seen a lot of problems between divorced spouses as they relate to costs associated with minor children’s school and/or extracurricular expenses. Many divorce orders or separation agreements contain provisions for the parties to share expenses of school and extracurricular activities. As with many things in life, however, the devil is in the details, and ambiguities in what qualifies an appropriate expense, and then how reimbursements are to occur result in conflict, mischief, and ultimately litigation. It is incumbent on parties (and to their attorneys) to button down with specificity which expenses are to be split and procedures for reimbursement to avoid problems.
The legal basis for the division of such costs derive from the child support statute, C.R.S. § 14-10-115. As articulated in the Colorado Appeals Court case of In re: Marriage of Laughlin, 932 P.2d 858 (Colo. App. 1995) “The case-by-case determination of child support with which a trial court is charged must include a consideration of factors related to a child’s standard of living and additional needs. Such factors include recreational costs. In re Marriage of LeBlanc, 800 P.2d 1384 (Colo.App.1990); § 14-10-115(1), C.R.S. (1987 Repl.Vol. 6B). In addition, this court has recognized that fees associated with athletic activities can either qualify as educational expenses under § 14-10-115(11)(I) or provide a basis under § 14-10-115(3)(a), C.R.S. (1996 Cum.Supp.) for the deviation from the presumed amount of support. See In re Marriage of Ansay, 839 P.2d 527 (Colo.App.1992). The trial court’s post-hearing orders contain sufficient findings to satisfy us that inclusion of the ice skating fees was warranted here. See In re Marriage of Nielsen, 794 P.2d 1097 (Colo.App.1990) (trial court has discretion to deviate from the guidelines where justified provided it makes appropriate findings).” Per statute, once such fees are identified as being appropriately factored into the child’s overall need, those fees are to be split in proportion to the parties’ incomes.
So, the first battle is identifying what school and extracurricular activity costs should be split. Many disputes arise when one party is desirous of their child engaging in an extracurricular activity that is expensive when the other party objects to the child’s participation of that activity because of the cost. A solution, in such an instance, is to have the party who wants the child to engage in an expensive extracurricular activity to bear that entire cost, or a disproportionate percentage of the costs.
Another point of contention is defining what falls under ambiguous phrasing like “educational expenses”. Parties should specify what that means in any agreement, for instance textbooks, uniforms, school lunches, registration fees can all usually be agreed upon as qualifying under this category, but not such things as clothing, home-prepared lunches, and school supplies. To avoid arguments, and potentially litigation, breaking down into specifics which fees are to be split should be set out in any agreement.
Even when certain fees are agreed to be split, and there is no dispute as to what those fees are, the procedure for reimbursement can be a huge headache. A common scenario I’ve experienced is one in which one party advances certain fees, but does not provide receipts or amounts until after the sum of fees advanced by that party builds up substantially. Then when the party seeking reimbursement finally gets around to submitting the “bill” to the other parent, the other parent can be caught unprepared, and might have otherwise objected to the continuation of an expense because of the cost (“I never would have agreed to that had I know how much it cost”).
This is why a specific procedure for expense reimbursement is always a good idea to have in any child support order. A typical agreement requires a party advancing a fee or expense to provide a receipt or proof of payment to the other party within 30 days of that fee being advanced, and that the other party has 30 days to pay his or her share of that advanced fee back to the other party. If the party who advances a fee fails to abide by the time limits, they lose the right to reimbursement. If the other party fails to reimburse, an agreement that the reimbursing party bear the ultimate costs and attorney fees for collection of these fees can be built in.
Working out these types of specifics can be a hassle when negotiating the terms of a divorce, especially when parties are eager to put the divorce behind them. However, this type or work can save a lot of headaches and money later on. If you have questions related to educational and extracurricular expenses in your divorce, contact a family law attorney to gain the knowledge and information you need to best help you make good planning decisions.