What Options and Resources do I Have When My Income for Support for Child Support Purposes in San Diego for My Divorce, Legal Separation or Paternity Includes Bonus and Over Time Which is not the Same
Many payors, and this is all inclusive of divorce, paternity or legal separation cases, believe they pay too much. To add income to their side which they do not receive may be perceived as the “final straw”. Many payees, and again inclusive of legal separation, divorce and paternity cases, feel that they are paid too little. They want to add all income to the side of the payor to increase their child support amount. This over ride is also applicable to spousal support but only for divorce and legal separation cases only. For this article, child support will be focused on.WHAT IS A SMITH/OSTLER OVERRIDE AND WHAT DOES IT MEAN?
In many family law cases in San Diego, one or the other parent has fluctuating income. This can be from self employment fluctuations [such as a real estate broker] or could be from over time or bonus income which is not consistent. An Order that fluctuates as a percentage of only one parent's income or both parents income if this occurs bilaterally may be considered a deviation from guideline motion since the guideline does not take into account fluctuations in income and only an amortized average. If the San Diego Judge does deviate from guideline with an over ride order, the Court must comply with requirement in Fam. Code §4056 that any deviation from formula amount be justified on the record or in writing. The content required includes the reasons for differing from the guideline, what the guideline formula is, and the reason the amount is "consistent with the best interests of the children” which is also a factor. While a very standard practice in San Diego Courts, to avoid motions and court hearings every time a change in income takes place for both sides and the attorney fees necessary for this and court time, this is discretionary with the Judge.HOW IS THE SMITH/OSTLER OVERRIDE CALCULATED?
Guideline child support is calculated using the Disso Master program. Some of these factors are listed below:
-how many federal exemptions for each parent
-whether the parents are filing single, head of household or married filing separately
-what are the number of children of the relationship of the parents.
NOTE: children of other relationships can be considered a “hardship deduction”. This may require a deviation from guideline motion. This can be significant since the hardship deduction is used to equalize the support for all minor children which the parent is legally obligated to support. This is within the complete discretion of the San Diego Superior Court Judge. Non legal obligations [step children not adopted] are not considered in this hardship category.
-custodial parent time share and non custodial parent time share.
-salary and wages
-income from self employment
-taxable income from all other sources
-non taxable income from all other sources
-union dues which are required and mandatory for employment
-whether there is a child of another relationship for which child support is currently ordered.
NOTE: this is not the same as a hardship deduction
-whether there is a spousal support order currently for a spouse of another relationship
-what are the health insurance premiums
-if there is a retirement which is required and mandatory, such as union dues.
-if one spouse owns a house, is there an interest deduction
-if one spouse owns a house, is there a property tax deduction.
Included in the Disso Master program is an over ride calculation table for unilateral [one parent] and bilateral [two parents] bonus income and over time income. This can be printed out so you can intelligently analyze.HOW CAN A LOCAL FAMILY LAW FIRM HELP YOU TO AVOID OVER PAYING ON BONUS AND OVER TIME INCOME?
The law firm of Doppelt & Forney, APLC has the Disso Master program and can calculate not only guideline child support but also the over ride for over time and bonus income for one or both parents. Feel free to contact their law firm for a confidential and complimentary legal analysis of this over ride income calculation as well as other family law matters.