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I believe my spousal support judgement is being written

I believe my spousal...

I believe my spousal support judgement is being written incorrectly. Especially the language that applies to the Osler Smith portion and possibly the amount of income that is being used as the base in which the percentage that the Ostler Smith is based on.

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

Californina

Lawyer's Assistant: Have you talked to a lawyer yet?

Yes, I changed lawyers at exactly the wrong tim because I couldn't afford to pay so my new lawyer is a neighbor and is a bit in the dark. My old lawyer won't answer email clarifying issue even after having been paid $200,000!

Lawyer's Assistant: When we are ready I'll take you to the appropriate web page.

Ok

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No I have all the numbers and I am quite versed in his pay amounts etc

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Answered in 15 minutes by:
8/26/2017
RayAnswers
RayAnswers, Lawyer
Category: Family Law
Satisfied Customers: 48,882
Experience: 30 years as a family law lawyer .
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

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In 1986, the Legislature again amended section 4801, subdivision (a), by renumbering and expanding the factors that the court must consider in assessing the earning capacity of each spouse.fn. 9 (Stats. 1986, ch. 1096, § 1.) [223 Cal. App. 3d 45] Thus, at the time of the hearing in May 1988, section 4801 provided in relevant part (with the 1986 changes underlined: "(a) ... the court may order a party to pay for the support of the other party any amount, and for any period of time, as the court may deem just and reasonable. In making the award, the court shall consider all of the following circumstances of the respective parties:

"(1) The earning capacity of each spouse, taking into account the following:

"(A) The marketable skills of the supported spouse; the job market for those skills; the time and expenses required for the supported spouse to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

"(B) The extent to which the supported spouse's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported spouse to devote time to domestic duties.

"(C) The extent to which the supported spouse contributed to the attainment of an education, training, a career position, or a license by the other spouse.

"(2) The needs of each party.

"(3) The obligation and assets, including the separate property, of each.

"(4) The duration of the marriage.

"(5) The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in the custody of the spouse.

"(6) The age or health of the parties. [This was apparently a typographical error, which was corrected in 1988 back to the original "and." (Stats. 1988, ch. 407, § 1, No. 7 West's Cal. Legis. Service, p. 1063, No. 3 Deering's Adv. Legis. Service p. 1556.)]

"(7) The standard of living of the parties.

"(8) Any other factors which it deems just and equitable. ..." [223 Cal. App. 3d 46]

http://law.justia.com/cases/california/court-of-appeal/3d/223/33.html

What questions do you have about spousal support?

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Customer reply replied 11 months ago
I need to know the proper terminology for the whole spousal support order. The judge has ordered a monthly spousal of $8,750. She has accepted that his current monthly income is $30,411 per month. ( I would like to know what she is looking at on his pay stub to come up with that amount because I believe it is too high. She has added in to his monthly salary, vacation pay, car allowance, holiday pay, etc. Because the monthly spousal is divided by this amount the higher this amount is the lower the smith osler percentage is so I want to make sure this was arrived at properly) Next she has capped the total income at $500,000 (average of last three years of marriage). So I need proper wording for judgement because the wayit is currently written it says the difference of $500,000 less the $30,411x12 or $135,068 will be SUBJECT to the osler smith at 28.8%. Because my spouses bonuses have been above $150,000 for years this wording has me maxed out from day one. I believe what the judge meant was that my total income from the osler smith would be capped at $135,068. This would have my spousal increase as his bonuses increase up to maximum that would have me in the end arrive at $240,000 which is 1/2 the marital standard of living ($500,000) Please give me the proper wording for an Osler smith that would be applied this where are you and also what should the judge be using as his current monthly income i.e. just salary or be adding in car allowance, sick pay, holiday pay etc.

The judge uses dissomaster to calculate this, for a small fee you can access the software.The court would count car allowance, vacation pay, holiday pay, etc as taxable and countable income.

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Ask Your Own Family Law Question
Ask Your Own Family Law Question

The DissoMaster™ program is used by almost all family law professionals to determine guideline child and spousal support payments in the State of California. It has been used in the California judicial system for over 20 years. The DissoMaster™ program is one of the few programs certified by the California Judicial Council for use in making support calculations. It was designed by attorneys to follow the guidelines set out in the California Family Law Code. We always use the most current version of the DissoMaster™ available so you know that you are getting the correct support amount.

The DissoMaster™ program is also used to calculate the guideline spousal support amount in cases that may have just spousal support or involve both child and spousal support.

While the California Family Law Code states an algebraic formula to calculate child support, it is almost never used in actual practice. Since the algebraic formula requires the use of net income to determine the support amount, there is plenty of room for error when using the net income you think is the correct amount.

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Customer reply replied 11 months ago
Well that definitely is not net monthly income! Also I can send copy of W2 if needed but I really am looking for the proper way to word the application of the osler smith because right now it is not worded properly.

Free one if you want to plug in the numbers

https://cristinlowelaw.com/practice-areas/spousal-support/california-spousal-support-calculator/?utm_expid=26408887-9.FbpN2JQyTcCJZih8chQx8A.0&utm_referrer=https%3A%2F%2Fwww.google.com%2F

If you are asking if this should be counted as income then the answer is yes according to the definitions of income, it would be taxable on the W-2 as a benefit( car allowance for instance)

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If you receive a standard car allowance from your employer, then it is generally considered to be taxable income. Conversely, monies received from a mileage reimbursement plan are generally not considered to be taxable unless the amount reimbursed is higher than the standard federal rate for mileage deductions.

Should Car Tax Allowance Be Claimed as Income or Reimbursement ...

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The judge here is using the income to calculate using the dissomaster, you can argue about what qualifies as income here but thats how they go to the numbers they got to.

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Customer reply replied 11 months ago
I am asking for you to tell me how a proper judgement would be written for the Osler smith based on the above information. For the time being lets assume all of the above numbers are correct i.e. 28.8% Osler smith applied to any increase in salary above $364,932 and bonus income. $500,000 cap as max total income to me.
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Customer reply replied 11 months ago
Please give me proper paragraph for osler smith application based on above numbers

Percentage awards in spousal support awards will be upheld at least up to sixteen percent (16%). The court has discretion to apply those percentages to gross or net income, but will likely apply them to gross earnings – especially if the trial court renders a statement of decision that shows that all the 4320 factors were considered. At the same time, argue per Mosley that the supporting spouse at some point has insufficient funds to live on. This argument may be more successful with lower earners, as the Smith & Ostler cases involve very high earnings.

If you are the supporting spouse, you may want to argue for a cap – especially where the percentage of bonus income (if paid out) will exceed the marital standard of living. For instance, with a base salary of $10,000/month and bonuses ranging between $0 and some number like $25,000/month, that the first $25,000 is subject but that nothing after $25,000 will be included. Commissions and fluctuating income are confusing to both parties, because it sometimes seems that the employee is playing games with the income, and that he or she controls whether they are paid out and when. This creates the possibility that the court will input too high a number as the base salary. If a person receives a fixed amount per month and the balance due them is turned over to them at the end of the year, it’s important to use the base so the support order isn’t skewed high.

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Customer reply replied 11 months ago
Sir you are giving me information that is not pertinent. I have been through trial and the numbers are the numbers already. I simply need the proper wording for the judgement for the application of the Osler smith based on the numbers above. If you cannot or will not give me that information please tell me that.

Page 3 bottom right hand corner, sample language you asked for

https://csdaca.org/wp-content/uploads/2016/03/W-35-Handout-Other-Tools-Smith-Ostler.pdf

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Customer reply replied 11 months ago
Thank you I believe the will help me.

You are so welcome, thanks for rating 5 stars at top of page .Glad I could help you.

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Satisfied Customers: 48,882
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