As the details of our former Governor’s extramarital indiscretions continue to emerge, it is somewhat surprising that neither party has filed for divorce. But while the parties have yet to file for divorce, it appears they are already addressing an issue that arises in most divorce cases involving children: child support.

Radar Online reports that Schwarzenegger is already paying child support to Maria Shriver. In fact, according to the online source, it’s been reported that Schwarzenegger is paying “a significant amount of child support” and that he is “also paying for his sons, Patrick and Christopher’s private school bills.”

While in this case it appears that Schwarzenegger is voluntarily paying for the parties’ son’s private school tuition, will a court ever order a party to do so absent their agreement? The short answer is yes, under certain circumstances.

Family Code Section 4062 authorizes the court order what family law attorneys often refer to as child support “add ons” (i.e. additional child support). Some of these “add ons” are mandatory, meaning that the court must order them, while others are discretionary, meaning that the court has the option to order them. The mandatory add ons are (1) child care costs related to employment or to reasonably necessary education or training for employment skills and (2) the reasonable uninsured health care costs for the children. The discretionary add ons are (1) travel expenses for visitation and, relevant here, (2) costs related to the educational or other special needs of the children, which would include private school tuition.

So, Family Code Section 4062 authorizes a court to order a parent (or parents) to pay private school tuition. Now the question is: When will a court do so? Generally, courts look to whether there is a history of private school attendance, and for evidence of a child’s need for private school or any benefit to the child beyond that which would accrue to any child from a private education. If these circumstances exist, and if an award of private school tuition is appropriate to the parent’s income, a court will generally order payment of private school expenses.

Interestingly, it is possible that a court will order a parent (or parents) to pay private school tuition for one child of a family, but not for another child of the same family. In In re Marriage of Aylesworth (1980) 106 Cal.App.3d 869, the Court did just that. The Court ordered payment of private school tuition for the son, who had special needs that were shown to be better met by private school, and who had previously attended private school, but did not order payment of private school tuition for the daughter who had never before attended private school, and for whom a need for private school or any benefit to her beyond that which would accrue to any child from a private education was not shown.

While it appears that Schwarzenegger has agreed to pay 100% of the children’s private school tuition, the allocation might be different if a judge were to decide the issue. Family Code Section 4061 provides that any amounts ordered to be paid under section 4062 must be divided one-half to each parent, unless either parent requests a different apportionment and presents documentation which demonstrates that a different apportionment would be more appropriate, for example a significant disparity in the parents’ incomes. Family Code Section 4061 further specifies how the expenses are then to be apportioned.