Who will bear the private school fees for children after divorce in Ningbo?
When the husband and wife divorce, they agree that the child shall be raised by the woman and the man shall bear the maintenance fee. After the child's senior high school entrance examination, the woman sent the child to a private Senior high school without the man's consent. The annual tuition fee plus accommodation fee is over 60,000 yuan. The woman sued the man for sharing after paying part of the fee-such disputes are becoming more and more common in post-divorce alimony cases. Conclusion: The high expenses incurred by children attending private schools after divorce generally do not belong to the "necessary education expenses" in the legal maintenance fees. The court usually takes the principle of necessity and reasonableness as the principle, and combines the responsibilities, financial ability and balance of burdens and obligations of both parties. Without the consent of the other party, the school choice expenses beyond the affordability of the other party may be borne by the party who made the school choice decision. This paper starts from the legal basis, the identification standard, the sharing consideration and the operation point.
1. legal basis: what exactly does the "education fee" in alimony mean?
Article 1085 of the the People's Republic of China Civil Code stipulates: "If, after divorce, a child is directly raised by one party, the other party shall bear part or all of the maintenance. The amount of the expenses to be borne and the length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment. "Paragraph 2 of the same article also provides that the aforementioned agreement or judgment shall not prevent the child from making a reasonable request to either parent, if necessary, for an amount exceeding the original amount. Article 42 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code further defines: "The term" alimony "in Articles 1058, 1067 and 1068 of the Civil Code includes children's living expenses, education expenses, medical expenses and other expenses. "What needs to be clarified is that the" education fee "here is not without boundaries-judicial practice usually limits it to necessary and reasonable education expenditure, that is, the tuition, miscellaneous fees, book fees and other expenses of public schools (or ordinary private schools) to ensure that children receive basic education; The high tuition fees of private schools and international schools, as well as the expenditures for extracurricular training and study tours that far exceed the routine, are beyond the" necessary "category, whether and how much is shared by the other party needs to be judged separately. This boundary also echoes article 41 of the (I) of interpretation: adult children who are still in school and receive Senior high school or below academic education, or who have lost or partially lost their ability to work and cannot maintain a normal life due to non-subjective reasons, can be identified as "adult children who cannot live independently"-it can be seen that the bottom line of education guaranteed by law is Senior high school or below academic education, and the excess part will be measured by "necessary and reasonable" standard case.
2. Identification Standards: Four Considerations
the court deals with the cost sharing of private schools, usually combining four factors: first, the actual needs of children-whether to attend private schools out of academic necessity (such as the allocation of local educational resources, the needs of children's academic expertise), or simply to pursue higher consumption of education, obviously beyond reasonable expectations; Third, the responsibility and fault of both parties-whether the choice of school is negotiated in advance and whether to fulfill the obligation of notification, one party may bear a greater proportion of responsibility without authorization; Fourth, the balance of burden obligations-cannot be left to the direct caregiver alone, nor can the indirect caregiver be "kidnapped" apportioned. The wishes of the children themselves can be used as a reference factor for minors who have a certain ability to judge, but they do not have a decisive effect. In practice, there are two kinds of special treatment of opposite situations: if the husband and wife have been raising their children together according to the private education standards, or if both parties agree to choose a school through prior negotiation, the cost sharing ratio may be different from the situation of "choosing a school without authorization"; If one party has obvious financial ability and private education is really necessary, the court may also order the party with better financial conditions to bear a higher proportion.
3. real cases and deduction scenes
similar disputes have a more consistent tendency to adjudicate in courts across the country. In the relevant case disclosed by the Sichuan High Court, the grandmother sent her grandchildren to a private school. Because she failed to prove that she had obtained the consent of the child's mother and the expenditure exceeded the parents' financial capacity, the court held that the 200000 yuan education fee belonged to the grandmother's voluntary gift to her grandchildren, rather than the maintenance fee that should be shared by the parents. This referee revealed two rules: first, to bypass the school choice expenditure of parents' autonomy, may be identified as a voluntary gift from the contributor; second, "money spent on the child" does not mean "the other party must share", affordability is a hard constraint. Another common scenario (example, fiction) is deduced: the man's monthly income is 20000 yuan, and the divorce agreement stipulates to pay monthly maintenance fee of 3000 yuan; The woman did not negotiate to transfer the child to an international school with an annual fee of 120000 yuan and asked the man to share half. Such requests are unlikely to be fully supported-the court will find that the 3000 yuan maintenance fee has covered the necessary education expenses, the international school expenses exceed the necessary range and the man's consent has not been obtained, and may eventually decide that the man shall appropriately subsidize within the scope of his discretion, or shall not support this part of the request, and the school-choosing party shall bear the main expenses.
Key points of 4. operation and evidence preparation
for divorced parents, the best way to avoid such disputes is to pre-agree: write down the scope of education fees in the divorce agreement.-Whether the alimony includes additional expenses such as tuition fees and extracurricular training in private schools, how to share the excess, and whether both parties need to reach an agreement through negotiation; Negotiate and leave traces before major education choices-transfer, school choice and large-sum training are major matters affecting children's growth and family expenses, and should communicate in advance and keep chat records and written confirmation; Keep expense vouchers-tuition invoices, payment records, school fee notices, admission notices, etc, it is the basic evidence for the claim of sharing; the negotiation fails to claim in time-the child may claim reasonable expenses from the parents in excess of the original amount in accordance with article 1085, paragraph 2, of the Civil Code, but the word "reasonable" is still premised on necessity. In the litigation, it is claimed that the sharing party should prove the authenticity, necessity and affordability of the other party, while the defending party proves that it does not know, does not agree and the cost exceeds the necessary range. No matter how the dispute develops, priority should be given to ensuring children's normal schooling and avoiding threatening to harm children's interests by refusing to pay tuition fees and suspending school.
5. common mistakes
myth 1: The agreed maintenance fee includes all education expenses. Positive solution: the education fee in the maintenance fee is limited to the necessary and reasonable, the high tuition fees of private schools and the fees of international schools are usually subject to separate negotiation or litigation, and are not covered by the maintenance fee of course.
Myth 2: If one party chooses a school without authorization, the cost should be borne by the school choosing party. Positive solution: the court will comprehensively determine the proportion of responsibilities and financial ability of both parties, which may not be entirely borne by the school-choosing party. However, if the school is selected without authorization and is obviously beyond the affordability of the other party, the school-choosing party may bear the main responsibility.
Myth 3: If the other party's income is high, it must bear the cost of private school. Positive solution: The court is based on the principle of necessity and reasonableness, and it is not necessary to unconditionally share the high expenditure on private education if the economic conditions are good.
The adjustment mechanism of 6. maintenance: increase, decrease and change.
The dispute over the sharing of the cost of private education is often entangled with the adjustment of the maintenance fee itself. According to Article 58 of the Interpretation (I), if a child requests an affordable father or mother to increase the maintenance fee, the people's court shall support it under one of the following circumstances: (I) the original amount of maintenance fee is not sufficient to maintain the actual living standard of the place; (II) the actual need for the daughter to fall ill or go to school has exceeded the original amount; (III) there are other legitimate reasons, it should be increased. The high tuition fees of private schools are "more than the original amount due to the actual need to go to school", but the support is still subject to the "necessary and reasonable" standard-the claiming party needs to prove that the cost is necessary and the other party can afford it. Conversely, if the party paying maintenance is unable to pay according to the original standard due to unemployment, serious illness, sharp drop in income, etc., it may also request a reduction or adjustment. In terms of payment methods, alimony can be paid regularly on a monthly basis, or a one-time payment or in-kind payment can be negotiated. The change of payment method must be agreed by both parties or confirmed by the court, and it is illegal to stop payment unilaterally.
7. FAQ
is the cost of a private school "more than the original amount due to the actual need to attend school"? Can an increase in alimony be requested accordingly?
Article 58 of the (I) of interpretation claims an increase, but the court still takes the necessity and reasonableness as the premise: if it can be proved that it is practically necessary to choose a private school (e.g. insufficient local educational resources and children's academic needs) and the other party can afford it, it may be given discretionary support; It is difficult to fully support those who simply pursue high-end education without negotiation.
The divorce agreement says "education fees are borne by half with bills". What is the private school fee still fighting?
There is an agreement from the agreement. If the agreement makes it clear that the education fee includes the private school fee and the sharing method is agreed, it can be performed according to the agreement.
The child is admitted to a public school, but if he wants to enroll in tens of thousands of extra-curricular classes a year, can he ask the other party to share it?
Extracurricular training and interest classes are non-compulsory education expenditures. In principle, they are not necessary education expenses. It is usually difficult to force the other party to share without consensus. If both parties agree and can afford it, it can be shared according to agreement or actual.
The child will go to college as an adult immediately. Does the father have to pay for the college tuition?
In principle, children who have reached the age of 18 are no longer "adult children who cannot live independently" and their parents are unable to set the obligation to support them; however, in practice, for children who are still receiving higher education, the court may, at its discretion, support them in claiming the necessary expenses from their parents, provided that the parents can afford it. Such requests are closer to the combination of moral and discretionary obligations and need to be judged on a case-by-case basis.
Can one party request a transfer from public to private without authorization?
Turning back involves the stability and willingness of children's education, the court generally does not force a change in the status quo of schooling, but balances the interests of both parties through the adjustment of the cost-sharing ratio.
Practical Experience of 8. Lawyers
the typical cause of such disputes is that children go to private schools and the cost is high. One party sends them to the other party without discussion and then lets the other party share them later. The "education fee" in the maintenance fee usually refers to the necessary and reasonable expenditure, and the part of private school choice, which is obviously beyond the general level, may not be taken into account. Therefore, the party planning to choose a school had better communicate with the other party before making a decision, and make clear the school, expenses and sharing methods and leave marks. It will be much more difficult to advocate sharing afterwards. A discussion in advance is often better than an argument afterwards.
From the experience of the case, when sharing such costs, the court will look at whether the expenditure is necessary and reasonable, the balance of the financial capacity and burden of the parties, and the existence of prior consultation. As the party directly raising, it is necessary to prepare the vouchers for tuition and accommodation fees and the income of the other party, indicating that the money is not a comparison, but the actual needs of the child to study; as the party asked to share, it is necessary to show its own affordability and the amount of alimony paid, indicating that the other party's school choice decision exceeds the agreed or original standard.
Instead of arguing about who should pay more afterwards, it is better to leave a good interface for "education expenditure" at the time of divorce. In addition to the fixed maintenance fee, the agreement or judgment may also stipulate how to negotiate and share large and temporary education expenses, stating that both parties need to negotiate separately and retain written consent. Expenses will change during the child's growth. In the future, adjustments to alimony and temporary increases in reasonable expenses can be claimed according to the agreement and actual needs. It is much easier to explain the rules in advance than to deal with them passively every time.
The dispute over the cost sharing of private schools is essentially a balance between "the interests of children" and "the boundaries of parents. The yardstick given by the law is necessary, reasonable, negotiated and measured: it is necessary to look at the educational needs, reasonable to look at the cost standard, negotiated to see whether the other party's right to know and decide, and measured to see the parents' affordability. For the direct caregiver, don't take it for granted that the other party must pay the bill "for the good of the child"; for the non-direct caregiver, don't refuse across the board, it is really necessary to share the reasonable expenditure appropriately, which is more conducive to the growth of children and parent-child relationship. It is much better to write the boundary of education fee into the divorce agreement than to go to court afterwards.