Legal Question in Family Law in California
Can Smith v. Osler be used to show child support should be reduced for "base pay" and increased for commissions? I have asked on several occaisons to have my support adjusted because I will sometimes make only $1000 a pay period and then get a huge amount ($10,000) the next. The problem is when I have to pay $2334 in support and alimony and the month when I only make $2000 comes along I go into arrears.
1 Answer from Attorneys
The smith ostler is a common formula when the party makes a revolving amount. It is up to the courts discretion to either agree to it or use some average amount of pay. They may look at your tax returns over several years and average it out, or they may agree that your income is too fluctuating to use an average amount. You would need to convince the court to use the Smith Ostler formula but you need to be diligent in paying the extra amounts over base. Often times, the courts do not like the smith ostler because it requires the other parent to hunt down the bonuses and that is not fair to the obligee spouse.
For self represented individuals you can consult with the family law facilitator self help center at your local court house.
As always please consult a local attorney prior to taking legal action. Good luck. Also please check out my Santa Clara County Family Lawyer blog.
Law Offices James Chau
1625 The Alameda Suite 204
San Jose, CA. 95126
http://www.jameschaulaw.com/
http://sanjosefamilylawyer.blogspot.com/
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