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How commonly is Ostler-Smith bonus support included in a temporary order when most of the paying party's income is invariant?

Santa Clara, CA |

i was influenced by the OPC into signing a stipulation including bonus Child and Spousal support. Later, when i came to know that spousal bonus support is usually capped, the OPC refused to include the cap in the modified stipulation saying that a cap is uncommon in a temporary order. If the cap is uncommon, now i started to wonder how common is the bonus support itself in a temporary order for a regularly salaried supporting spouse. Can someone please shed light on this?

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Attorney answers 5


It is fairly common when there is reason to believe that the obligor has occasional bonuses or commissions.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.


Income is the primary factor when calculating child support and spousal support . When a supporting or supported person makes income over their base salary the court generally does include a bonus table to account for the extra income.


Omitting a bonus schedule will most likely result in a below guideline temporary child and spousal order if a bonus is paid. I have not come across any legal authority for a cap unless the obligor can demonstrate that he/she is wealthy enough to supply the child with a lifestyle commensurate with the lifestyle of the obligor and that guideline should not apply.


I agree with Mr. Yomtov's answer but I would add that the spousal support Smith Ostler bonus obligation also depends upon how long you were married. If it was a short term marriage you may be able to get this part of the support obligation terminated. You should also be aware that temporary and long term spousal support are different and they serve different purposes. Long term spousal support is based upon a variety of factors (see family code section 4320) and it is not computer program report based (although Judges may refer to the computer program calculations).


Apparently you are in pro per and when an individual is in pro per and not represented by counsel it is very common to have an Ostler -Smith bonus support included in a temporary order. In terms of child support it seems fair and reasonable. In terms of spousal support it is somewhat suspect. In regard to final modifications of Judgments the issue is not how much money you make in regard to an increased spousal support order but the requesting party must show increased need. I would think a number of arguments could be made in favor of this position at the temporary level. I would suggest you seek out legal counsel.

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