Understanding Ostler/Smith Orders

Understanding Ostler/Smith Orders and the Treatment of Variable Income in California Family Law

In California family law, the calculation of child and spousal support payments is primarily based on the income of both parties. While this is straightforward when both parties have regular, predictable incomes, it becomes more complicated when a party's income is variable or includes periodic bonuses. This is where Ostler/Smith orders and tools like the DissoMaster come into play.

The Role of Ostler/Smith Orders

Ostler/Smith orders, named after the California case Marriage of Ostler & Smith, provide a method for handling variable income such as bonuses, commissions, or overtime in the calculation of support payments.

Under this type of order, the court sets a base child or spousal support amount, usually calculated based on the payer's regular salary. In addition to this base amount, the order includes a provision for a certain percentage of any additional, variable income to be paid as support. This additional payment is often referred to as an "Ostler/Smith percentage" or "Smith/Ostler percentage."

The specific percentage can vary, and is typically determined based on the statewide guideline provisions that address periodic payments such as bonuses. This ensures that the support payments are equitable and reflect the payer's actual income, even if that income fluctuates or includes sporadic bonuses.

The Role of the DissoMaster

The DissoMaster is a software program commonly used in California to calculate guideline child and spousal support. It takes into account a variety of factors, including each party's income, the number of children, tax deductions, and health insurance premiums, among others.

When it comes to variable income, the DissoMaster can be used to create "bonus charts." These charts can help parties visualize the impact of different bonus amounts on the total support payment, including the base amount and the Ostler/Smith percentage. This can be particularly useful in cases where the payer's bonus income is substantial or highly variable.

Conclusion

Ostler/Smith orders and tools like the DissoMaster are essential components of the family law landscape in California, particularly for cases involving variable income. They ensure that support payments are equitable and accurately reflect the financial circumstances of both parties.

Final Financial Disclosures

Title: Understanding California Family Code § 2105(a): The Importance of Full Disclosure in Divorce Proceedings

Divorce proceedings can be complex and stressful, particularly when it comes to the division of property and determination of support. One of the key elements in California divorce law that helps ensure fairness and transparency in these processes is the Final Declaration of Disclosure, as stipulated in California Family Code § 2105(a).

The Role of the Final Declaration of Disclosure

The Final Declaration of Disclosure is a critical document that each party in a divorce must serve to the other. This document, which must be sworn under penalty of perjury, discloses all assets, debts, income, and expenses. It is designed to ensure that both parties have a complete understanding of the marital estate, which is essential for fair negotiations and judicial determinations.

In accordance with California Family Code § 2105(a), this disclosure must be served either before or at the time parties enter into an agreement for the resolution of property or support issues. If the case goes to trial, the disclosure must be served no later than 45 days before the first assigned trial date.

Exceptions and Waivers

There are, however, some exceptions to this rule. For good cause, a court may order otherwise. Additionally, both parties can mutually agree to waive the final declaration of disclosure.

Consequences of Perjury

The Final Declaration of Disclosure is not a document to be taken lightly. As noted in the statute, committing perjury on the Final Declaration of Disclosure may have severe consequences. The court can potentially set aside the judgment, or any part of it, if perjury is committed on the final declaration of disclosure. This means that if a party is found to have lied on their Final Declaration of Disclosure, the court has the power to undo the divorce judgment, in whole or in part.

Moreover, perjury on the declaration can lead to other civil or criminal consequences under the law. This underscores the importance of complete honesty and transparency in the disclosure process.

Conclusion

California Family Code § 2105(a) underscores the importance of full and honest disclosure in divorce proceedings. It aids in ensuring a fair division of property and calculation of support, and helps to maintain the integrity of the judicial process. As always, individuals involved in a divorce should consult with a legal professional to unders

New Amendments to California's Uniform Child Custody Jurisdiction and Enforcement Act: Protecting Access to Gender-Affirming Health Care

Effective January 1, 2023, California's Senate Bill 107 (Stats 2022, ch 810) brings significant changes to the Uniform Child Custody Jurisdiction and Enforcement Act (Fam C §§3400–3465) to protect and support access to gender-affirming health care for children.

These amendments include:

  1. Prohibition of enforcement of laws from other states that allow state agencies to remove a child from their parent or guardian based on the parent or guardian allowing their child to receive gender-affirming health care or mental health care.

  2. Preventing courts from considering a case as an inconvenient forum if the law or policy of another state that may take jurisdiction limits a parent's ability to obtain gender-affirming health care or mental health care when the provision of such care is at issue in the case.

  3. Authorizing courts to take temporary jurisdiction when a child has been unable to obtain gender-affirming health care.

  4. Prohibiting courts from considering the taking or retention of a child from a person with legal custody if the reason for taking or retention is obtaining gender-affirming health care or mental health care.

These amendments aim to safeguard the rights of children and their parents or guardians to access gender-affirming health care without fear of legal repercussions or custody disputes. The changes highlight the importance of recognizing and respecting the diverse needs of children and families when it comes to health care decisions, particularly in the context of child custody cases.

Understanding the Income and Expense Declaration in California Family Law Cases

When dealing with child support, spousal support, or attorney fees and costs in California family law cases, it's essential to understand the importance of the Income and Expense Declaration (Judicial Council Form FL-150) or Financial Statement (Simplified) (Judicial Council Form FL-155). These forms provide the court with crucial information to assess a party's earning capacity and make appropriate support orders.

A completed Income and Expense Declaration should include the party's current employment details, age, and educational history. It must be attached to any application for support orders and filed on time, as an untimely declaration may be disregarded by the court (Marriage of Kahan & Diamond (2021) 72 CA5th 595, 601).

The declaration should have the party's three most recent pay stubs attached, and self-employed individuals must include a current federal income tax Schedule C and a profit-and-loss statement. Always check local court rules for any additional required attachments.

It's important to note that in proceedings involving child, family, or spousal support, parties cannot refuse to submit their state and federal income tax returns to the court (Fam C §3552(a)).

Post-judgment, either party may serve a request for a current Income and Expense Declaration (Fam C §3664), allowing them to assess whether a modification of support orders is necessary. For a declaration to be considered current, it must have been completed within three months before a hearing, with no significant changes in circumstances (Cal Rules of Ct 5.260(a)(3)).

By understanding the Income and Expense Declaration and its role in California family law cases, parties can ensure they provide the necessary information for the court to make informed decisions on support orders.

LEGAL BENEFITS OF GETTING MARRIED

Why get married anyways?  The below explains some key rights you get just because you are married.  It’s important to keep in mind that this list does not cover what happens to your premarital and marital property under state law in the event of a divorce or death.   

1.    Tax benefits

Married couples can be eligible for tax benefits such as lower tax rates, increased deductions, and the ability to file joint tax returns. You can create life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.

You’ll qualify for an estate tax marital deduction. When one spouse dies, his or her estate passes to the surviving spouse, tax-free. That’s not true for domestic partners, and even though the federal exemption is fairly high, the exemption in some states is low enough to catch even moderate estates.

Keep in mind there are also tax drawbacks (Marriage penalty tax).

 

2.    Property Rights

 You can roll over a deceased spouse’s IRA to the surviving spouse’s IRA. If your significant other dies with an IRA and you aren’t married, you’ll have to start taking distributions immediately, regardless of your age. 

You can create a "family partnership" under federal tax laws, which allows you to divide business income among family members. Under IRC 1041 you can transfer property to each other without tax consequences.

You can contribute to a spousal IRA.

You can receive survivor’s benefits from a pension plan (which would otherwise cease if you were not married).

 

3.    Family leave

FMLA, CFRA and other types of leave that guarantees your job will be there when you return – not allowed when the person you are taking care of is not your family. Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility is often reserved for family members not just people in a romantic relationship.

 

4.    Social Security benefits

Married couples may be entitled to Social Security benefits based on their spouse's work record.

5.    Insurance benefits (health, auto etc) 

Many employers offer health care benefits to employees and their spouses.  You can get reduced rates on other insurance (auto etc) as a family plan.

 

6.    Legal privileges (spousal privilege, marital communications privilege, etc.)

Spousal Privilege is a legal principle that allows a spouse to refuse to testify against their partner in court.  Marital communications privilege is a privilege that means a court can't force you to disclose the contents of confidential communications made between you and your spouse during your marriage.

When one spouse is unable to make legal decisions, the other spouse can typically make decisions on their behalf.

You can sue a third person for wrongful death of your spouse and loss of consortium (i.e. loss of companionship, comfort, and support).  You can receive a crime victims' recovery benefits if your spouse is the victim of a crime (or natural disaster like the PG&E Fires).

Obtaining immigration and residency benefits for noncitizen spouse.

Visiting rights in jails and other places where visitors are restricted to immediate family.