DONNA L. MALLEN

ATTORNEY AT LAW

*Certified Specialist, Family Law
*(Board of Legal Specialization, California State Bar)

You have reached the website of DONNA L. MALLEN, Family Law Attorney, located in San Diego, California. My practice is limited to the areas of Marital Dissolution ("Divorce"), Child Support, Spousal Support ("Alimony"), Community Property Issues, Child Custody within a Dissolution or Parentage ("Paternity") proceeding, and the modification of these matters.

CAUTION! Because Family Law varies greatly from state to state, and the court rules within the State of California vary from county to county, you must get information from an attorney local to your area. Additionally, the laws frequently change as a result of new legislation or new interpretations. The contents of this website do not constitute legal advice. They are intended to help you formulate the questions you will want to ask when you consult with an attorney. The individual facts of each case differ, so it is important for you to meet face-to-face with an attorney who can analyze your special needs and issues.


COMMON QUESTIONS ABOUT DIVORCE,
SUPPORT AND CUSTODY

What is community property?

Community property is generally all assets and debts acquired during a marriage, up to the date of separation, except something inherited, received by gift, or having its source in something pre-marital. There are also other exceptions to the application of this rule for certain property such as personal injury damages, student loans or tuition, and property that has been irretrievably commingled so that its nature cannot be clearly identified. A common question that arises in a divorce is how to apportion assets that have been acquired with both separate property and community property funds.

Will the court award spousal support?

In California, there are several factors applied by the court in determining whether spousal support (known in some states as "alimony" or "spousal maintenance") will be awarded to one of the parties. Among these factors are length of the marriage, age, education, health and work experience of the parties, present earnings, other sources of income, time spent by one spouse to stay home and take care of the children, one party's need for support, and the other party's ability to pay, and other relevant facts that may arise in a particular case.

Even in the case of a short marriage, temporary spousal support may be appropriate at the beginning of the case to help an unemployed or lower-income spouse get on his or her feet. In a long-term marriage (presently defined by statute as "more than ten years") "permanent" spousal support becomes an important issue, and the court is reluctant to give up "jurisdiction" (authority over the parties) to make support orders at the time of the judgment or thereafter in the event that either spouse needs it.

It is the general rule that each party is expected to make efforts to become self-supporting. The facts of each particular case will affect the application of this general rule. Even "permanent" support can be modified or terminated if the court finds a sufficient factual basis for doing so after the judgment has been entered. Remarriage of the recipient spouse terminates spousal support by operation of law, except in the rare case where the parties have agreed otherwise.

How does the court decide who gets custody of our children?

The court tries to determine what custody plan will be in the children's best interests. The court prefers for the parents to agree on a custody plan between themselves, if they are able to do so. Except in extreme emergency cases, the court will require parents who have not already reached an agreement to attend Family Court Services, located in the courthouse, for mediation of their parenting plans before the judge will make any custody decision. If the parents cannot agree, the Family Court Services Counselor will make a written recommendation for a parenting plan to the court.

How does the court decide how much child support will be ordered?

In California, the court is required to use statewide "Guidelines" for the calculation of child support. The formula used to arrive at guideline support is so complicated that a computer program is utilized to make the calculation. The basis of the computation is each parent's income from all sources. This is defined more broadly than the IRS definition of "income," and includes earnings, investments, rental income, retirement benefits and, sometimes, even "imputed" income where one parent chooses not to be employed. Each parent's "custodial timeshare" (percentage of time that the parent has the children in his/her custody)is added to the formula, and appropriate deductions for taxes and health insurance are applied. When allowed, a "hardship" deduction for payment of other child or spousal support is applied, and in fairly rare instances, a very limited deduction for other expenses may be given. The result is the "mandatory guideline child support."

Parties are allowed to opt out of the "mandatory" guideline child support by "stipulating" (agreeing) to a lower or higher amount. In addition to the basic child support, the parties are normally ordered to share in the costs of daycare and medical expenses beyond those covered by insurance for the children.

What is the basic process by which I can get divorced?

In California, we have "no-fault" dissolution (divorce). The Petitioner (either spouse) files a Summons, Petition and some accompanying papers at the County Courthouse. The papers are "served" (normally, by personal delivery, or by certified mail, if out of state) on the "Respondent." No "grounds for divorce" are needed, other than "irreconcilable differences." Six months after the papers are served, the parties are eligible to be divorced.

Before the judgment of marital dissolution will be granted by the court, numerous papers must be completed, including "Declarations of Disclosure" from each party. Sometimes, "discovery" procedures are needed, whereby records must be subpoenaed, depositions of parties or witnesses must be taken, or other legal devices must be used to determine such things as the assets of the estate or the income of a party.

Some cases require hearings in court to determine temporary issues of custody, support, use of cars, homes and other property, or domestic violence restraining orders to maintain rules between the two parties while the divorce is in process. While most cases are able to be resolved eventually by a negotiated settlement submitted to the court in writing to obtain the judgment, some cases require a trial, where the judge makes the final decisions as to how the property will be divided, how the custody of the children will be shared, and how much child support or spousal support will be paid between the parties.

Do we have to go to court to get a divorce or a modifcation of an existing order?

The court prefers that the parties reach their own decisions about the issues involved in their divorce and parentage cases, including custody, support, property division. The parties are encouraged to arrive at a written settlement, which in most cases may be submitted to the court without the necessity of a court appearance by either party. This does not avoid the complex paperwork that must be completed, but it does eliminate the stress, expense and time consumption of attending court and having the judge impose a decision on the parties which may not be as satisfactory to either of them as a negotiated settlement.

What if I can't afford an attorney?

Every County in the State of California offers the free services of a Family Court Facilitator to assist you in filling out the legal forms and to guide you through the legal process. In San Diego County, you may find information about the Facilitator on the internet at Family Law Self Help Center.

Is there anything I can do to minimize my attorney fees?

In most cases, attorneys charge you by the hour. You will conserve attorney time by organizing your facts and assembling documentation of the relevant points that apply in your particular case, such as the source of funds used to acquire your house or other assets, the account statements for your debts, your paycheck stubs, bank account statements, retirement plan statements and benefit booklets, and other paperwork that will make it easier for your attorney to understand and interpret the legal issues for you.

What is a Certified Specialist?

The State Bar of California operates a certification program under which attorneys who have met their requirements of experience and continuing education in designated areas of legal practice qualify as Certified Specialists in that area. To qualify, an attorney must pass a comprehensive examination in the area of the specialization. Once the attorney qualifies as a Certified Specialist, on-going education requirements must be met in order to maintain that Certification.

FREE TELEPHONE CONSULATION

You may call DONNA L. MALLEN for one free telephone consultation, at (619) 234-3523. However, due to unmanageable volume, we are unable to respond to any e-mail communications, or to return calls for free consultations. Priority is reserved for our existing clients, for whom it is the policy of this attorney to return every call as quickly as possible (normally, the same day).

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