1. Can the court award expenses in addition to the basic child support obligation?

In addition to calculating a straight child support award, the court may also award additional expenses in considering the parties’ basic child support obligations. The most common expenses awarded are day care and health insurance expenses. The costs of day care and health insurance can easily inflate a child support award to approach the size of a mortgage payment.

If the parties have some dough, then the courts will also require the father/payor to pay for a share of any summer camp and for the children’s extracurricular activities. The courts will also require the payor to cover a share of sports-related activities, dance classes, music lessons, etc. If the parties have money, then in most cases the court will make the payor front these expenses. If the parties have limited economic resources, then a court most often will hold that the expenses for these activities are part of the basic child support award. The lesson to be learned is that getting divorced is not cheap.

A key issue is the payment of “extraordinary” expenses. In many cases, the ex-wife tries to have the husband pay for the extracurricular activities of the children. The ex-wives try to make the husbands pay for gymnastics, tennis lessons, horseback riding lessons, drum lessons, and cheerleading activities. The potential list of activities is endless. The bottom line is that living in New Jersey is very expensive. In most instances, the basic child support only enables the ex-spouse to provide the bare “necessities” for the children.

The child support guidelines distinguish between child-related expenses that are included in the basic child support award, and those expenses classified as entertainment-related. Basically, child support awards and extra child support does not include entertainment expenses for the children. Appendix IX-A, paragraph 8 of the Child Support Guidelines discusses the expenses that are included in child support awards:

The Appendix IX-F support awards include the child’s share of expenses for housing, food, clothing, transportation, entertainment, unreimbursed health care up to and including $250 per child per year, and miscellaneous items.

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Entertainment - Fees, membership and admissions to sports, recreation, or social events, lessons or instructions, movie rentals, televisions, radios, sound equipment, pets, hobbies, toys, playground equipment, photograph equipment, film processing, video games and recreation, exercise or sports equipment. [Pressler, Current N.J. Court Rules, Append IX, paragraph 8)

Thus, the key issue in any dispute over the payment of extraordinary expenses is whether it is entertainment-related or whether it is a hard concrete expense needed to support the children. In many cases, some child-related expenses represent large and variable expenses. Quite often a spouse can’t afford to pay these extra expenses by herself. The key issue is whether this extra expense is to be included in the basic child support award. The party seeking payment will contend that the extra expense is not related to the children’s entertainment, and that it is a large and variable expense necessary to adequately support the children. The type of extraordinary expense(s) that are routinely considered as extra child support are private elementary or secondary education costs, special needs or gifted or disabled children expenses, and tutoring expenses.

2. What is the key case regarding the payment of the children’s extraordinary expenses?

A very illustrative case is Accardi v. Accardi, 369 N.J. Super. 75 (App. Div. 2004). Here, the father questioned the imposition of a 14.6% increase in the child support award. Mr. Accardi was a very wealthy man. The trial court ordered that he had to pay for thousands of dollars of extracurricular activities for the children. These extra activities were added to his basic child support award. Consequently, Mr. Accardi’s child support award was increased by 14.6%.

On appeal, the Appellate Division reversed the case, and it was remanded to the trial court for a plenary hearing. The trial court imposed on the husband the obligation to pay for 100% of the children’s extraordinary expenses. These expenses included gymnastics, tennis lessons, horseback riding lessons, drum lessons, and cheerleading. The husband contended in the trial court and on appeal that these expenses were in fact not extraordinary, but rather expenses to be covered under the basic Child Support Guidelines.

The Appellate Division agreed that most of the expenses described by the plaintiff as extraordinary appeared to fall within the description of entertainment expenses and were covered by the Guidelines. However, the Appellate Division noted that the Child Support Guidelines, Appendix IX, B, line 11, provide that any extraordinary expense that is not predictable and recurring should be shared between the parties. The Accardi court was conflicted between the concept of not classifying children’s entertainment expenses as child support, and the concept that parents should share expenses that are not predictable and recurring. In summary, the Accardi case was remanded to the trial court for a hearing as to who should pay for the extraordinary expenses.

The Accardi case proves that in many divorce cases there is no answer to some legal issues. I am certain that Mr. Accardi paid more in legal fees for his trial and for his appeal than he would have for all of his children’s extra expenses for their entire lives. In many of these types of disputes, money that can be used to pay for extra expenses is squandered on legal fees. Therefore, I always recommend that the parties try to be reasonable and work out a compromise acceptable to both.

3. What type of proof does a parent need to demonstrate to obtain extra child support?

Another issue in the Accardi holding was the degree of proof needed to require the payor to be responsible for his share of extraordinary expenses. The custodial parent had provided a list of expenses, some of which were contested. The court held that this, without more, was insufficient, and it set the case down for a plenary hearing.

In my experience, the courts and the ESP panels rule on extra child support requests on a case-by-case basis. If a father is earning a six-figure income, then the court will most likely rule favorably on any reasonable request for extra child support for extraordinary expenses. However, if a father is struggling to survive, or if he has started a new family, then the court will most likely rule that the extraordinary expense is covered by the basic child support award.

4. Are there any other cases that deal with the payment of extraordinary expenses or extra child support?
          
Yes. Another illustrative case is Caplan v. Caplan, 182 N.J. 250 (2005). Here the court directed the parties to share the extra expenses which included:

a. Medical insurance and unreimbursed expenses;
b. Summer camp;
c. Dental expenses including orthodontic bills;
d. Bar Mitzvah expenses;
e. Annual contributions to a special needs trust; and
f. College expenses.