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LegalGems, Lawyer
Category: Family Law
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Experience:  Experienced Family Law Attorney
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My ex-husband has informed me that if I earn anything over a

Customer Question

My ex-husband has informed me that if I earn anything over a certain amount($48K) in this case, that I will have to reimburse him according to Smith Ostler. Is this correct?
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.

A few more minutes please as I'm looking into this for you.

Expert:  LegalGems replied 1 year ago.

Thank you for your patience.

So pursuant to Family Code 4058 annual income includes all sources of income (statute below). FC 4064 ("

4064. The court may adjust the child support order as appropriate to accommodate seasonal or fluctuating income of either parent." ) allows the court to make adjustments for bonuses, commissions, etc.

So the Ostler Smith line of cases allows a judge to set a threshhold at which a percentage of bonuses/commissions etc will kick in, requiring the earning party to pay a percentage of the earnings above that threshhold.

So for example, a court order may state that a recipient spouse is entitled to 10% of all bonuses; or 10% of all commissions earned over ____.

This allows the court the ability to have the order reflect the earning spouse's true income and is typically used when there is an expected fluctuation in income.

If there is no specific mention of this in the order, then one would need to request a modification of order based on the increased income.

A case on point is:

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(relevant statute below)

4058. (a) The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following: (1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article. (2) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business. (3) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts. (b) The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children. (c) Annual gross income does not include any income derived from child support payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination of need. Child support received by a party for children from another relationship shall not be included as part of that party's gross or net income.

Expert:  LegalGems replied 1 year ago.

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