New York Law Journal, July 24, 2025 —
In the framework of a divorce case, when divorcing spouses have agreed to joint decision-making (joint “legal custody”) over major decisions affecting their children, there is an intersection, or crossroads if you will, between the principles of joint custody and the payment of “add-on expenses” (private school tuition, extracurricular and summer activity expenses, unreimbursed medical expenses, as just some examples).
With that in mind, when divorce lawyers draft separation agreements that require one parent, or both parents, to contribute to the payment of add-on expenses, often times we draft language that is intended to condition the payment of those same expenses upon compliance with the requirement that decisions about those expenses—before they are incurred—are made jointly if the parties have agreed to joint custody.
Stated simply, in the context of a joint custody arrangement, the thinking is that one parent (typically, the parent whose obligation to pay for add-on expenses is lesser, or none at all) should not be able to unilaterally enroll a child, for example, in an extracurricular activity, and then stick the other parent (who has had no chance to weigh in on enrollment) with the bill.
That brings us to the insightful decision of Judge Lydia S. Antoncic in the Matter of MM v. FV, (Family Court, New York County, 2025, Case Number 263192). In MM, the petitioner sought to enforce a judgment of divorce ordering the respondent to pay, inter alia, 27 percent of the children’s add-on expenses, including summer camp, educational expenses, medical insurance and expenses, and extracurricular activity expenses. The parties’ divorce Judgment incorporated a binding term sheet and a stipulation of settlement.
At the conclusion of a fact finding hearing by a support magistrate, the support magistrate denied, without prejudice, the petition for arrears associated with add-on expenses, finding that the court lacked jurisdiction “in that the parties’ judgment of divorce included contractual provisions to interpret and that the interpretations of the terms of joint custody are so intertwined with enforcing the terms of support for add-ons in the judgment that this court lacks jurisdiction to enforce those provisions” (emphasis in original).