Family Law Archives - Page 18 of 36 - Lonich Patton Ehrlich Policastri

How Can Parents Secure Parental Rights in Assisted Reproduction?

June 5, 2017/in Family Law /by Mitchell Ehrlich

Many couples are choosing to begin the expansion of their families later rather than sooner. With this new trend, assisted reproductive technology has gained tremendous popularity in aiding individuals embark on this process.

Assisted reproduction refers to all treatments which involve handling eggs or embryos outside of the body and includes procedures such as: in vitro fertilization, intracytoplasmic sperm injection, donor egg or embryo, surrogacy, gamete intrafallopian transfer, and zygote intrafallopian transfer. As fascinating as these medical processes are, legal considerations need to be addressed when parentage is being determined.

Parentage in the law deals with the legal relationship between parents and a child. We discussed establishing a child’s parentage generally in an earlier blog post here. But the right of parentage earns a new level of complexity when done through assisted reproduction.

Many couples who engage in assisted reproduction use a donated egg or donated semen. And there can be some natural concerns that come up when you are on the side of the donation recipient. Does the donor have rights as the parents-to-be do? How do parents-to-be secure their parentage rights?

Their rights as parents can prevent the donor from seeking parental rights. However, if the sperm donor and the intended parent wants the donor to be treated as the child’s parent then there must be a written agreement stating this prior to conception. Also, if an egg donor wishes to be treated as the child’s parent the court must find satisfactory evidence that the donor and person seeking treatment meant otherwise. This may be demonstrated by the donor taking on a role of raising the child.

Parents using a surrogate may have parentage concerns too, but preparing before birth will ease these anxieties. As long as the parents-to-be sign the appropriate surrogate contracts they shall be the lawful parents of the child.

Ultimately, the ruled and laws regarding assisted reproduction and parentage rights are complex. All relationships are unique and some may not fit perfectly within the box of California law. Moreover, the scientific abilities of reproductive assistance are constantly evolving at a rapid rate. Therefore, it is important to talk with a knowledgeable attorney like those at Lonich Patton Erlich Policastri to discuss your specific situation.

If you would like more information about assisted reproduction and parental rights, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

What Parents with a Disability Need to be Aware of in a Divorce

June 1, 2017/in Family Law /by Michael Lonich

Parenting while going through a divorce is hard, but also having a disability adds a new level of complexity that makes it is easy to feel overwhelmed and deflated. This is why it is so important to have a competent lawyer who will advocate for your parentage rights effectively and with care.

The thought of having parentage rights taken away will make any parent’s heart drop. But the chances of a disabled parent facing this nightmare is almost a guarantee. According to the National Council on Disabilities the removal rates of children from disabled parents are dispiriting. For children with psychiatric disabled parents the removal rates were between 70% and 80%; parents with intellectual disabilities were 80%; and parents with physical or sensory disabilities experienced high removal rates and loss of parental rights, as well.

If you are a disabled parent facing divorce or a child custody battle, it is important to find a lawyer who is sympathetic to your situation, who understands your condition, and will be effective in their advocacy for you. This is crucial because there are many unfortunate challenges a disabled parent can face in court.

Disabled parents may experience bias or speculation regarding best interest determinants. When dealing with a child, the court’s main objective is to produce a result that is in the child’s best interest; and a parent’s disability will be considered.

There is also a “no harm” requirement when determining a child’s best interest scenario, where the court factors the mental and physical health of all individuals involved to determine if there is a potential chance for harm to occur to the child. With this requirement, there is no obligation to show that the parent’s disability is actually causing, or will cause, any harm to the child or their environment. This can clearly disfavor any parent dealing with a disability.

If you are a parent who has a disability and is facing a divorce or custody battle, securing knowledgeable and effective counsel is imperative. There are a few key characteristics you should look for your future lawyer.

Of course, a knowledgeable lawyer in family law and child custody is a must, but you also want one who will focus on your parenting abilities and strengths. Your attorney needs to understand the specifics of your diagnosis in order to better advise and understand you. By being knowledgeable on your disability’s characteristics your lawyer will be more equipped to advocate on your parenting strengths and abilities. Finally, you want to find a lawyer who apprehends the benefits and pitfalls of various parental evaluations. Overall, your lawyer should give you assurance that your parental rights are protected and that you are given a fair opportunity to raise your child.

If you are considering a divorce or legal separation and would like more information about child custody and parental disability, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Parenting Plans for School-Aged Children After Divorce

May 24, 2017/in Family Law /by Michael Lonich

Children are undoubtedly important members to a family, but when they are caught in the middle of a divorce short and long-term consequences can occur.

Since school-aged children are more mindful than younger children, they are more likely to be affected by a divorce. Thus, in order to limit the negative effects a divorce will have on your child, an agreed upon parenting plan is key.

Having your child affected by disagreements with your ex should never be a goal. Therefore, it is helpful for both parents to set out ground rules in advance. Make sure you both come to an understanding for acceptable behavior by each around your child.

Life is also uncertain, so in the event of an emergency is it important that the other parent knows of changes to phone numbers, work information, or home addresses as soon as possible. In addition to being notified of important contact information, each parent should have access to your child’s school and medical records and allowed to be contacted by your child’s school.

Keep one another informed about your child’s life and school. Education, sports, music programs, and other events are important to your child during this age. It is important for you and your ex to agree upon specific school or extracurricular events each will attend; either alone or at the same time. Remember being present at your child’s events will give them a sense of support in an otherwise turbulent time.

Additionally, clarity and order in a schedule is going to become the best asset you can provide your child. Figuring out a schedule on how you and your ex will handle exchanges, custody, and visitation should be a high priority on the list of “To Do.” These situations are stressful, but exchanges and transitions between homes can be especially hard for children when not carefully handled. Create a consistent weekly or monthly schedule in advance. This schedule should be clear on when and where your child is staying including where the child will spend summer vacations and holidays. Having a consistent schedule in advance allows your child to acclimate to this new lifestyle and will help other areas in their life to become less disturbed. Yet, some terms of divorce can make this objective difficult or even impossible to obtain without the aid of attorneys.

Above all, your child’s comfort should be a main objective. Make sure each home the child is staying at is equipped with all their necessities. This will help them feel secure, cared for, and comfortable. Some things to always keep stocked are: extra set of clothes; favorite books, toys, or games; and specific childcare supplies or medication.

If you are considering a divorce or legal separation and would like more information about how to create a parenting plan suited to your child’s needs, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Educational Degrees and Divorce

May 24, 2017/in Family Law /by Michael Lonich

More individuals today have received some sort of professional degree or training than ever before. But with the influx of costs for higher education many married students rely on their spouse for financial support. And upon legal separation or divorce a spouse who supported the other through their education may be entitled to reimbursement for their community fund contributions.

If a spouse chooses to obtain a professional degree or training during their marriage usually two events occur. First, the non-student spouse supports the other financially by paying for the community and educational expenses. Second, after the education is complete, community funds may be used to repay any outstanding loan amount. Upon legal separation or divorce in California these educational loans will be assigned to the spouse who received the education or training and the non-student spouse may have a right to reimbursement for their community contributions. However, California does not recognize an obtained degree or training as community property and therefore its value cannot be divisible upon divorce.

The reimbursement for community fund contributions to a spouse’s education or training is an exclusive remedy governed by Family Code Section 2641. But the spouse seeking reimbursement has a burden to trace the funds to a community property source such as earnings acquired during the marriage. Reimbursement is seen to give a fair “quid pro quo” (this for that) of the community’s investment in the education of a spouse. A supporting spouse may receive reimbursement if the education or training “substantially enhanced” the earning capacity of the spouse or the marriage has ended before the community obtains a benefit from such education. Contributions that may be reimbursed involve payments made with community or quasi-community property to support the student spouse’s education expenditures. These expenses include: tuition, fees, books, supplies, transportation, and directly related educational expenses. However, a spouse will not receive reimbursement for ordinary living expenses since these would have been incurred regardless of a spouse’s educational expedition.

Full reimbursement is not guaranteed though and a court may choose to impose limitations on a spouse’s reimbursement amount if their case’s circumstances warrant such a decision. There are several reasons for a limitation and the ones listed below are by no means exhaustive, but merely illustrative.

A person embarks on an advanced degree or training for a multitude of reasons, one of which may be for better financial standing. Yet, even though there is an expectation that the education will benefit the marital community there is no presumption that the enhancement will be “substantial.” Thus, if a spouse cannot demonstrate the education received in fact substantially enhanced the earning capacity, then reimbursement may be limited.

“Unjust reimbursement” can also limit reimbursement. This occurs when a court determines specific circumstances within a case renders a full reimbursement of the community contributions unfair. For example, if both spouses have obtained a degree or training at the community’s expense a reimbursement to only one would be unjust since both were at one point supported by the other. Unjust reimbursement may also occur when a spouse receives education or training that substantially reduces their need for spousal support. These examples however are merely illustrative and many other circumstances may lead a court to deem full reimbursement to a spouse as unjust.

Finally, a written agreement between the spouses that waives or modifies a reimbursement right may limit a spouse’s amount receivable. Such a waiver or modification must be written expressly; it cannot be agreed upon orally or implied and must be signed by the adverse party.

The achievement of obtaining a degree or training is rewarding for all involved. However, upon legal separation or divorce, rights to reimbursement for community contributions can become complex. If you are considering a divorce or legal separation and would like more information about divorce and educational reimbursement, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Hardship Factors in Child Support Cases

April 24, 2017/1 Comment/in Family Law /by Michael Lonich

May a parent claim a child from a different relationship as a hardship on their income when figuring in the guideline amount of support? The short answers is yes, you can claim a minor child from a different relationship as a hardship deduction if you meet the requirements.

Hardship deductions from income for supporting other children only apply to a child who is either a natural or adopted child of the party involved in the child support case. For example, if you were married and had two children from the marriage, then get divorced and later have another child form a second marriage, the child from the second marriage could potentially considered as a hardship on your income when calculating support for the two children from your marriage.

However, it is important to note that stepchildren cannot be considered as a hardship deduction, only natural or adopted children. The reason is that it only applies to children where there is a legal obligation to provide support. Also, the hardship child needs to reside with the parent. A child from another relationship that doesn’t reside with the parent involved in the child support case would not qualify, although child support paid for other children can be considered separately from hardships in calculating guideline child support.

Another important element to understand is that the maximum hardship deduction for a hardship child cannot exceed the amount of support allocated to each child covered by the child support order. This puts a limitation on how much hardship can be claimed, with the intent to protect the children who already are due support by the parent.

California Family Code sections 4070-4073 regulate the hardship claims that can be made in a child support case. Something to keep in mind is that the hardship deduction for another child may not affect the amount of support as much as the parent thinks it will. For a person paying support, a hardship child deduction will lower the support, but since there usually is also a benefit from the extra tax deduction that another child provides, it often does not lower it as much as people expect.

Many courts, such as the Santa Clara County Superior Court, use a computer program when calculating support called Dissomaster. A Dissomaster report is often attached to any child support order, and shows the breakdown of each parent’s income, and automatically calculates the guideline support. If using this software, the hardship child would usually be given either a factor of .5 or 1.0 in the hardship deduction section, depending on if the hardship child is fully or partially supported by the parent. When the factor is entered, the program will automatically calculate the amount of the hardship deduction, and apply it to the child support guideline calculation.

Because getting a hardship child to be figured into the child support amount can be complicated, it may be necessary for a parent to obtain the assistance of a family law attorney to ensure that the parent gets the proper deduction credited to them.

If you are considering a divorce or legal separation and would like more information about hardship factors, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri. We can help you understand and manage any support issues that may arise.

Lastly, please remember that each individual situation is unique, and results discussed in this posit are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

The More The Merrier Revisited: Tri-Custody in New York

March 31, 2017/in Family Law /by Michael Lonich

As we have discussed on this blog before, California allows a child to have more than two legal parents. With the rise of assisted reproduction and wider recognition of non-traditional family units, it is growing apparent that children may receive substantial physical and emotional care from more than two people.

In California, the Martinez v. Vaziri case concluded that a child’s biological mother, biological father, and third person—the man who cared for the child and was the child’s only father figure—could all claim legal parentage. The case’s holding was grounded in a California statute (Family Code Section 7611) that allows children to have more than two legal parents if recognizing only two parents would be detrimental to the child.

Now, New York has stepped up to the plate in a case involving a polyamorous family. After a lengthy custody battle, a judge awarded custody of a child to three different people. When the child was born, the three people had been involved in a longstanding intimate relationship. Two of the people were married, and the remaining person lived next door. The married woman (Wife) could not conceive, so the family decided that the married man (Husband/Father) would impregnate the third woman (Mother), and the family would raise the child together. Ultimately, Mother gave birth to a boy, but then, Wife and Husband/Father got divorced while Wife and Mother continued their relationship. Even though Wife continued to see her son during his custodial time with his biological mother, Wife wished to formalize her own legal link to the boy.

Concluding that the child viewed both women as his mothers and would be devastated if any of his three parents were removed from his life, a New York judge granted parental rights to Wife, Husband/Father, and Mother. Unlike in California, this decision is not grounded in a statutory right to have more than two parents, but the case evidences an emergent shift in the judiciary’s interpretation of what constitutes a family unit.

If you have any questions about establishing your child’s legal parentage, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri—we can help you understand and secure your and your child’s legal rights.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

SOURCE:

http://www.cnn.com/2017/03/14/health/three-parent-custody-agreement-trnd/

Understanding the Impact of the Spousal Fiduciary Duty on Estate Planning

March 21, 2017/in Estate Planning, Family Law /by Michael Lonich

We have outlined the spousal fiduciary duty on this blog before; now, we’re delving a bit deeper to discuss the impact of the spousal fiduciary duty on estate planning. Traditionally, California courts rely on a common law burden-shifting framework when confronted with the possibility that a spouse has unduly influenced his/her spouse’s estate planning decisions. However, a 2014 case from a California Court of Appeal—Lintz v. Lintz— took a different approach, and instead, relied on the statutory spousal fiduciary duty articulated in California Family Code section 721 to resolve an estate planning/undue influence claim.

The common law framework provides that the person alleging undue influence bears the burden of proof. However, the challenger can shift the burden to the proponent of a testamentary instrument by establishing, by a preponderance of the evidence, three elements: 1) a confidential relationship, 2) active procurement of the instrument, and 3) an undue benefit to the alleged influencer.

Departing from the common law, the Lintz court—faced with an allegedly abusive wife who intimidated her husband into amending his trust to her tremendous benefit and to the extreme detriment of her stepchildren—looked to Family Code section 721 when it decided in favor of the husband’s estate. Section 721 creates a broad fiduciary duty between spouses that demands a duty of “the highest good faith and fair dealing.” Further, neither spouse may take unfair advantage of the other. As a result, if any inter-spousal transaction advantages only one spouse, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence. The presumption is rebuttable—the advantaged spouse can demonstrate that the disadvantaged spouse’s action was freely and voluntarily made, with full knowledge of the facts, and with a complete understanding of the transaction.

California Family Code section 850 describes three categories of inter-spousal transactions: 1) community property to separate property, 2) separate property to community property, and 3) separate property of one spouse to separate property of other spouse. Notably, the section does not consider transferring community or separate property to trusts.

The court concluded that section 721 applies because section 850 does include property transferred to revocable trusts—in Lintz, Wife’s undue influence caused Husband, via his trust, to transmute a large part of his separate property to community property. Accordingly, the court held that Family Code section 721 creates a presumption of undue influence when one spouse names the other as a beneficiary in a revocable trust.

Criticism of the decision abounds—all estate plans that name a spouse as a beneficiary, by their very nature, benefit one spouse. In turn, use of the Family Code undue influence presumption threatens to disturb all testamentary instruments, and litigation may flood the family courts as spouses seek to rebut the seemingly automatic presumption that Lintz creates. On the other hand, some commenters believe Lintz does not indicate a new paradigm, but rather, showcases a court’s eagerness to remedy the serious injury inflicted by a spouse’s egregious influence.

At the very least, the Lintz case does demonstrate that estate planning and family law are deeply intertwined. Consulting with an attorney to learn how a marriage or divorce can impact your testamentary wishes is always wise. If you have any questions about your family law and/or estate planning needs, please contact the experienced attorneys at Lonich Patton Erlich Policastri—we offer free half-hour consultations.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

SOURCES:

California Family Code section 721

California Family Code section 850

Lintz v. Lintz (2014) 222 Cal.App.4th 1346.

The “Brangelina” Custody Battle

November 14, 2016/in Family Law /by Lonich Patton Ehrlich Policastri

After more than a decade together and six kids, Angelina Jolie and Brad Pitt are getting divorced. Aside from the challenges presented by the division of their purportedly very high value estate, the parties also face a potentially very challenging custody battle over their six children, who are all under the age of 16 years old.

To determine child custody, California courts look to “the best interests of the child.” While it sounds simple, this standard can prove quite challenging for the court depending on the family. Variables such as the child’s age, maturity, and their relationship with the parents, need to be considered. Moreover, the child’s school and activity schedule and the parents’ work schedules only add to the challenge. Courts may also, but are not required to, consider the child’s preference if he or she is of appropriate age and capacity. Whether a child is of “appropriate age and capacity” depends largely on their maturity and understanding of the proceedings, usually found to be around age 10.

Each case is different based on the level of cooperation, or animosity between the parents. Ideally, the parents can work together and agree on a workable custody schedule. However, the far more common scenario involves parents who cannot agree, and have difficulty communicating with one another. For these parents, the court must step in and make determinations based on the facts presented.

First, the court will send the parents to mediation. The mediator is a third-party neutral, meant to facilitate the parents’ coming to an agreement. Next, if they are still unable to agree, the judge will meet with the parents at a Judicial Custody Conference. If the parents are still unable to agree, the judge will order the parents to go through an Assessment After the Assessment, an in-depth process where the judge ultimately decides the custody and visitation schedule.

Courts may award sole or joint physical custody to the parents. Sole physical custody consists of the child living with and being supervised by one parent. Joint physical custody, on the other hand, can take many forms depending on the parents’ schedules, proximity to one another, etc. When parents share joint physical custody each parent has “significant periods” of physical custody. This does not necessarily equate to equal time between parents.

In Brangelina’s case, their unique work-life schedules, and global lifestyles will likely play a large role in how custody is ultimately split between the parties. Media sources report that both parties have asserted a desire to have physical custody of the children. Thus, some form of joint physical custody is the most likely result. Given that both, Angelina and Brad are actors, they have similar interests in a less traditional time-split for the children. Both parties will have to concede that they have extended periods of time when they remain on-site, and work long days while filming, which make them less available for the children during those time periods. A traditional 50-50 split is not going to work for them. Thus, it behooves them to try to cooperate with one another and recognize where they share common ground – the desire to give their kids the very best life they can. Luckily, Angelina and Brad have robust means to provide as non-traditional of a lifestyle for their children as they need to in order to fit whatever time-split needs they may have.

If the two cannot agree on an amicable custody arrangement, the court may have to step in. Given the children’s ages, it may consider their preferences depending on whether it finds they are of appropriate age and capacity. The court will likely strongly urge Angelina and Brad to try to agree on their own in light of the inherent publicity that follows their fame and the public’s interest in their celebrity lives. Like all parents, the parties are likely to feel more satisfied with an agreement they formulated rather than a court’s determination.

If you need help with a custody or visitation claim, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law matters and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Grandparents Have Rights Too: Grandparent Visitation

November 11, 2016/in Family Law /by Mitchell Ehrlich

The relationship between a grandparent and a grandchild can be one of great happiness and importance for both the grandparent and grandchild. However, sometimes events such as divorce or a parent’s death may strain loving relationships between grandparents and their grandchildren. As a result, the grandchild’s parent(s) may block any further contact with grandparents. However, all 50 states now have some type of grandparent visitation law that allow grandparents to ask the court to give them the legal right to maintain their relationships with their grandchildren.

In California, a statute grants visitation rights to grandparents only when they have a preexisting relationship with their grandchild “that has engendered a bond such that visitation is in the best interest of the child.” Cal. Fam. Code § 3104. In addition, the statute directs the court to balance the interest of the child in visitation with his or her grandparent against the right of the parents to exercise their parental authority. Id. Finally, the statute provides a rebuttable presumption that grandparent visitation is not in the best interest of the child if the parent objects.

However, in a recent case, Stuard v. Stuard, the Third District found that even though Family Code section 3104 provides a rebuttable presumption that grandparent visitation is not in the best interest of the child if the parent objects, the parent’s right is not absolute. Stuard v. Stuard (2016) 244 Cal. App. 4th 768. According to the Stuard court, the law “reflects a legitimate state interest in preserving an already existing grandparent-grandchild relationship that is threatened but in the best interest of the grandchild to safeguard.” In other words, even though there may be rebuttable presumption, it may be overcome. The grandparents will need to show in some detail what it is that they add to the grandchildren’s lives, not just a general statement that they have a close relationship with the children and that continuing that relationship is in the best interest of the child.

In a time when families are constantly changing, grandparent visitation laws have become increasingly significant. If you have any questions about grandparent visitation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Smith/Ostler Order: Accounting for Bonus Income’s Impact on Support Payments

October 19, 2016/2 Comments/in Family Law /by Virginia Lively

When calculating spousal or child support, courts look to a wage earner’s monthly income to determine an appropriate support amount. However, what if the wage earner spouse or parent receives bonus income in the years after the initial support order is entered? Support orders can be altered, but the process involves a court room, lawyers, and more legal fees. In re Marriage of Ostler & Smith offers an alternative answer—the Smith/Ostler order.

A Smith/Ostler order takes into account a spouse or parent’s unearned or prospective income, detailing when and how any future, additional earnings should be incorporated into a support order. However, because bonus income is prospective only, it may never be realized. Calculating support based off an unknown and/or unguaranteed dollar amount can underestimate or inflate a support order. Therefore, to account for the speculative nature of bonus payments, courts deal in percentages.

For example, in the seminal In re Marriage of Ostler & Smith case, the court awarded Wife 15 percent of Husband’s future cash bonuses. If Husband received a bonus, he would give 15 percent of whatever amount he earned to Wife, but if Husband did not receive any cash bonuses, he would not pay additional support. Importantly, the original support order would remain intact, and the parties would not need to argue over how much of the bonus income the supported spouse should be paid—the court order took care of those details and created a more easily administered support order.

In addition to cash bonuses, a Smith/Ostler order can account for future stock option income. For example, in In re Marriage of Kerr, Wife and Husband, while married, improved their standard of living by exercising stock options that had increased in value. Subsequently, during divorce proceedings, the court award Wife, through a Smith/Ostler order, a percentage of Husband’s income from any future exercise of those same stock options.

However, In re Marriage of Kerr presented an exceptional case where an additional measure besides a percentage amount was necessary to ensure that Husband’s spousal support order was not inflated. The value of Husband’s stock had increased exponentially after he divorced Wife. A specified percentage of the stock’s value would have increased Husband’s payments to a point that far exceeded the marital standard of living he shared with Wife. Thus, the court concluded that under special circumstances, such as the case at hand, use of a Smith/Ostler order is permissible only if the court caps the amount of future income a spouse can receive at a number proportionate to the martial standard of living.

If you are considering a divorce or legal separation and would like more information about how either action may affect your finances, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri. We can help you understand and manage any spousal or child support issues that may arise.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33

In re Marriage of Kerr (1999) 77 Cal.App.4th 87

How Can Parents Secure Parental Rights in Assisted Reproduction?

What Parents with a Disability Need to be Aware of in a Divorce

Parenting Plans for School-Aged Children After Divorce

Educational Degrees and Divorce

Hardship Factors in Child Support Cases

The More The Merrier Revisited: Tri-Custody in New York

Understanding the Impact of the Spousal Fiduciary Duty on Estate Planning

The “Brangelina” Custody Battle

Grandparents Have Rights Too: Grandparent Visitation

Smith/Ostler Order: Accounting for Bonus Income’s Impact on Support Payments

Free 30-Minute Family Law or Estate Planning Consultation

Contact Us