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).
The petitioner filed an objection arguing that the Support Magistrate erred in finding that the court lacked jurisdiction. Judge Antoncic granted the objection, as follows:
Although respondent raised petitioner’s alleged lack of meaningful consultation ‘as a defense to payments of the add-ons,’ the Court finds that this does not fall within the purview of Family Court Act §439(c), which would require a referral to a judge. However, even if the Support Magistrate made such a finding, no such referral was made.
While the court’s decision explains the nuances that go hand in hand with understanding the Family Court’s jurisdiction, for purposes of this article I will focus on the following, emphasized line in the decision which is worthy of discussion:
The separate binding term sheet grants petitioner final decision making if the parties cannot agree after ‘meaningful consultation.’ The binding term sheet does not define what constitutes ‘meaningful consultation’ and, importantly, it does not condition Respondent’s obligation to pay his share of add-on expenses on petitioner’s obligation to consult with him. Courts have found generally that an obligation to pay for specific expenses controls over more general obligations, such as a right of consultation (emphasis added).
The emphasized line above includes a footnote (footnote “4”) citing two additional cases, as follows:
Wheeler v. Wheeler, 162 A.D.3d 1517, 78 N.Y.S.3d 547 (4th Dept. 2018) (father’s commitment to pay for daughter’s college was not conditioned on being consulted on her choice, although separation agreement required parties to consult each other); Hejna v. Reilly, 88 A.D.3d 1119, 931 N.Y.S.2d 192 (3rd Dept. 2011) (father’s agreement to pay for 4 years of college controlled over general provision terminating support obligations at age 22).
MM involves an agreement whereby one parent has final decision-making authority after “meaningful consultation”, i.e., not a true joint custody arrangement. Nonetheless, there are at least two important takeaways from the decision.
First, we, as divorce lawyers, are reminded yet again that drafting language in separation agreements that we are accustomed to and perhaps comfortable with deserves a second look in that it behooves us to go the extra mile and define “meaningful consultation” or phraseology of that sort if that we want the words on the page to carry meaning, no pun intended.
Second, whether in the context of a true joint custody arrangement or something along the lines of what we see in MM, if the parties’ intent is to condition the payment of add-on expenses upon strict compliance with a joint-decision making protocol or something akin to it, then the language in the separation agreement mandating that as a condition precedent should be clear as day.
In MM, the court notes the following:
These two separate and distinct obligations—a right to pay support and a right to have meaningful consultation—each provide the parties with specific legal remedies. And the respondent failed to exercise those remedies.
Thus, putting aside the jurisdictional issues in MM, there is still legal significance to the decision-making aspect that underlies the incurrence of add-on expenses. But if you want to try to make sure that such legal significance is not trumped by caselaw that might deem it to be a “general obligation,” use the power of freedom of contract to spell it out in the written document. Once again, knowledge and understanding of the basic tenets of contract law we were taught in law school is indispensable to the practice of matrimonial law.
"'Meaningful Consultation' Over Add-On Expenses in Divorce," by Alan Feigenbaumwas published in the New York Law Journal on July 24, 2025.
Reprinted with permission from the July 24, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.