Hey there. My (new) husband was just awarded 2/3 custody of his kids. They spoke to court mediator and that's what they asked for, 2 weeks and dad's house and 1 week at mom's.

Now it's time to get child support adjusted because it was ordered based on 50/50 custody. In the past, because both parents have high-paying jobs with overtime potential, they were both ordered to pay an equal amount of overtime earnings to the other (14% of income over their base salaries, respectively).

However, last spring there was a lot of court wrangling and the Smith/Ostler element was abandoned after a long day in court and protracted negotiations; He agreed to pay her a flat amount. Now we're going back to try to fix that.

We've already run scenarios through online disso calculators and discovered she will owe him an amount almost double what he currently pays to her. BUT I used the figures from the flat calculation last spring... what the court did was lump all income into one pot for each of them, no overtime break-out figure.

IF negotiations break down (highly likely, as she'll cry poverty), then the court might go back to Smith/Ostler payments. FINALLY, to my questions!

Is there any way to predict what % will be attached in S/O calculations? If custody is unevenly split as in 67/33%, does the custodial party receive a higher Smith/Ostler percentage payment than the non-custodial party?

I ask because logic seems to dictate that having the kids twice as many days should mean that my husband should receive higher % of the mom's OT income. And we all know how logical the court systems are. </sarcasm>

Sorry so scrolly.

Mostly if both sides have lawyers then it will be done in a straight manner. The thing is that they can agree to take less from the other by way of stipulation. Why not just agree to it being on standard wages and forget the other figures. Give the children some peace from the wars in court.

You mention Smith / Ostler. That would be In re Marriage of Ostler & Smith(1990) 223 Cal.App.3d 33 , 272 Cal.Rptr. 560. As I read the case, it seems to revolve arount whether bonus payments should be included in child support. What do you suggest it stands for?

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Originally Posted by AK lawyer

You mention Smith / Ostler. That would be In re Marriage of Ostler & Smith(1990) 223 Cal.App.3d 33 , 272 Cal.Rptr. 560. As I read the case, it seems to revolve arount whether bonus payments should be included in child support. What do you suggest it stands for?

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Are you asking me or the OP ?

Lol, now why didn't I think of that? ;-) sorry... ever hear the expression got to laugh or you'll cry? Yeah, after 6 years of bickering plus one trip all the way to the state supreme court (my husband prevailed, unanimously! ) there is no way that this will be settled in a reasonable, logical manner.

I honestly appreciate that you took your time to answer, but really what I need to learn is whether any Smith/Ostler type cases, in which BOTH parties are ordered to pay a percentage of "bonus-type" income, are ever Unequally balanced. Based on a custody split of 67/33 time, should my husband expect to have to pay his ex the same percentage of his OT as she should expect to have to pay him, when he (we) cares for the kids twice the number of days she does?

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Originally Posted by AK lawyer

You mention Smith / Ostler. That would be In re Marriage of Ostler & Smith(1990) 223 Cal.App.3d 33 , 272 Cal.Rptr. 560. As I read the case, it seems to revolve arount whether bonus payments should be included in child support. What do you suggest it stands for?

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Exactly that. In California, there is a complete department within DCSS devoted solely to administration of child support orders that have what's now known as a "Smith/Ostler" element. There's typically a base level of support ordered, then on top of that, if one or both parents have uneven income streams, such as bonuses or,in some cases, overtime pay,they are ordered to pay a percentage to the other party. It can be ordered as child or spousal support, although in our case,no spousal support was determined in the divorce decree so that is moot.

When child custody was originally set in our case, at 50/50, both dad and mom were ordered to pay an equal percentage of any income over & above their respective salaries, let's use 10% as an example. Now custody is 67/33, kids with dad and myself twice as many days as mom.

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Originally Posted by martyrd

Lol, now why didn't I think of that? ;-) sorry... ever hear the expression got to laugh or you'll cry? Yeah, after 6 years of bickering plus one trip all the way to the state supreme court (my husband prevailed, unanimously! ) there is no way that this will be settled in a reasonable, logical manner.

I honestly appreciate that you took your time to answer, but really what I need to learn is whether any Smith/Ostler type cases, in which BOTH parties are ordered to pay a percentage of "bonus-type" income, are ever Unequally balanced. Based on a custody split of 67/33 time, should my husband expect to have to pay his ex the same percentage of his OT as she should expect to have to pay him, when he (we) cares for the kids twice the number of days she does?

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What you seem to be missing is that you mentioned having to use a dissomaster. By law in California the dissomaster is a set formula rather then a straight percentage. If they were to use a calculation like s/o then the figures will change wildly as you really have an unknown. That is what Smith/Ostler is. It is the unknown factor in a calculation. Its theory is based on not receiving the same amounts on a per year basis. So any award would have to come outside the normal child support calculation. You can arrive at the percentage buy doing the calculation of s/o percentages after the initial child support calculation.

"So any award would have to come outside the normal child support calculation. You can arrive at the percentage buy doing the calculation of s/o percentages after the initial child support calculation."

So what IS the "calculation of s/o percentages"? Years ago, they had an order in which the ex-wife paid $99 base per month and they both paid each other an equal percentage of whatever they earned above their respective base salaries. Then last spring, it was switched by the DCSS court (by mutual agreement of the parties, after 6 hours of "negotiation" IN court) to a flat rate, lumping all their overtime, respectively, into a monthly income number.

Now that the kids are spending 66% of their time at our house, it's our fear that the ex-wife will want to go back to a Smith/Ostler calculation. Husband will not agree to that, as we really like the certainty of knowing where money is coming and going each month.

However, IF the court, in its wisdom, decides S/O is the fair way to do things, then we don't want to be blindsided by learning that my husband will still have to pay his ex, for example, 10% of the OT he earns, and she'll have to pay him 10% of the OT she earns. That doesn't seem fair, as we care for the boys twice the number of days as she does. Also, because she doesn't like to work OT as much as he MUST work it, because we didn't buy our house 15 years ago. She would simply cut back her OT and live with austerity measures. We cannot afford to go back to paying her a percentage of hubby's OT earnings when our expenses have increased due to feeding and clothing and insuring teenage boys.

Do you see what I'm asking here? I'm sorry I don't know how to word it any more clearly than I have.

I understand what your saying. But you must realize that I can not produce a number for your situation. That number will be in the child support calculation. After everything has been plugged in from base pay there will be a percentage at the end. It will show what the custodial and noncustodial parent percentages are. After that then the S/O would be by stipulation. That is where the fighting will begin as the first part is set in stone already. The reason for any offset by either party is because the initial entry will only be base pay unless you agree on a different number. Also as part of the mix is who gets to claim the children on taxes etc. All of it is in the mix that will lead to a number agreed upon by the parties or forced by court order.

You apparently have a extremely messy situation between parents and you have lawyers chomping at the bit to get what they can out of it. In my opinion its not a good place to be in for anyone involved.