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Diana Lucia Martinez

Diana Martinez’s Answers

515 total

  • I married in Costa Rica in '02 and want a divorce because he's having an affair. Can I file here in CA or do I go to Costa Rica.

    He gave up his permanent visa and is a Costa Rican National. He is unable to return to the US due to the fact he was in prison 2006-2013 and is presently out on parole in Costa Rica. I contacted an attorney in Costa Rica and was told that because ...

    Diana’s Answer

    You can absolutely file in California if you have lived in the state for the last 6 months and in the county in which you file for the last 3 months. DO NOT turn over a limited power of attorney to anyone you do not know. If your spouse is cooperative, it will be a smooth process. If he is not, you may have difficulties getting him served. This can all be done very smoothly, without having to go to court, or Costa Rica, if you are both cooperating. Some lawyers will prepare the necessary documents for a flat fee, some lawyers will do a limited part of your process on an hourly basis, so you do have options.

    I hope this information is helpful to you. It will be best if you do reach out to a family law lawyer who can give you an idea of some of the challenges in your process and guide you through to a resolution in an informed way.

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  • My wife's attorney says that we have to sell our house or one of us has to buy the other one out after the divorce is final.

    He said that the courts WILL make us do that even if we are OK still owning the house jointly after we are divorced, no different that two friends or business partners would. That makes no sense at all; can someone confirm and if that is not true...

    Diana’s Answer

    So long as you are in agreement, with very few exceptions, you and your spouse can agree to pretty much anything. There are a number of concerns you will need to address, such as sharing of maintenance costs, major repairs, credit for any payments (tax, mortgage, etc), improvements, payment of expenses related to the person who stays living in the house, any liability for someone who is injured on the property, maintenance of insurance, claiming of any tax credits, when the house will be sold and under what conditions, how title will be held, and much much more. I have done a number of these types of agreements and they are enforceable. I would just caution that you need to think it through and discuss these details before signing any agreements, to avoid problems later on. It is much simpler to just sell the house or buy out the other spouse's interest, but it may not be financially sound and it may not be what the spouses want, sometimes for the kids or for their future investments. YOU DO HAVE A VOICE.
    Now, there may be much more that is of concern to your lawyer, so I would strongly suggest you have a conversation with him/her about this and find out what those concerns are. With full information, and cooperation from your spouse, you should be able to work through this towards an agreement without having to defer to the court.

    I hope this is helpful to you. Good luck.

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  • Married 17 years, wife left had affair. We had good and bad times,she wants divorce i dont. What can i do

    We have 2 kids (16,10) she won't council, I want to, I know we can have a great marriage. She has made claims of abuse ( mental and rough sex) these are exaggerated and untrue. What are my options. She has separated and we are living 2 different...

    Diana’s Answer

    I am so sorry you are experiencing this right now. And I'm afraid you will not find the support you seek through the family law courts. As my colleagues have explained, if one spouse wants a divorce, the courts will give it him/her. California does not force people to stay married when one spouse wants out. If BOTH spouses want to work on the marriage, I would encourage that effort before stepping into divorce. But that really only works when BOTH spouses want it. You can do a number of things to delay the inevitable, maybe even buy some time to try and save the marriage. But if she doesn't want to work on it, it's unlikely you will do anything more than aggravate the situation.

    I would encourage you to identify what it is about being married to her that gives value to you: combined incomes? Sex? A sense of stability? A sense of family unity? This really is a question that is personal to you - no right or wrong answers and you probably shouldn't publish it in a forum like this. Once you have identified what you like about being married, you may want to start thinking in terms of how you can achieve those same values/goals in a different way: creating family unity through improving communication, even when living apart; reducing expenses by simplifying your life-style (smaller home, eating out less and eating in fresh); counseling for yourself, to bring out your highest self during a traumatic transition. Divorce is an ending AND a beginning. I have worked with so many people who were exactly where you are today. With the right professionals, they were able to re-define themselves and, sometimes, come out of the process with a stronger relationship with their now ex-spouse than they had had even when they were dating. It doesn't happen for everyone, and it is very hard work.

    The difficult is going to be allowing you the time you need to process this grief. Studies show that people who go through divorce, go through the same phases of grief as if they lost a loved one: the denial, the negotiation, the anger. Until they finally reach acceptance. I have no doubt that your wife went through these phases, albeit in her own way, perhaps unbeknownst to you. Now, you are going to need that time as well. When people do not have that opportunity, they stay stuck where they are, fear and anger take over, and you end up with an expensive and lengthy contested divorce, that leaves everyone bitter and/or broke. You have two kids who are learning how to manage conflict from you; who are depending on the two of you to keep them feeling loved and safe. Divorce is a financial strain. It is destructive if the two of you are not able to work together in this transition and honor the goals and concerns of each other.

    I know this sounds Pollyanna; This is the work I do regularly and have been very successful in doing because I get my clients the right resources to help them - Mental health professionals, financial professionals, child specialists. I would strongly encourage you to not only seek legal counsel, but also to talk with other professionals who can help you prepare, emotionally and financially, for this transition. There are a number of excellent programs where you can hear about different ways to divorce and where you can speak with these types of professionals.

    If it is healthy and safe to save the marriage, and you are both willing to work towards that, do it. But if one person has made it clear that s/he wants out, you may want to consider the healthiest way to do that. Short of that, if you are not able to cooperate, you will need to find someone who can best guide you towards a balanced resolution.

    I hope this is helpful to you. Good luck.

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  • Online divorce filing. Is it legit in Cali!?

    For $149 you can fill out the needed info of you and your spouse, pay the fee, the documents are emailed to you, signature ready, and prepared for filing to the court, says you can mail or go in person to file the papers with the court to petition...

    Diana’s Answer

    If it sounds too good to be true (leading you to even ask the question), it just may be. There are a number of "cheap" fees for "complete divorces" from a number of sources (paralegals, online, etc). A number of years ago, a gentleman came to me and said he desperately needed to be divorced in one week. It turns out he paid $350 to a paralegal to do a very simple divorce: no kids, no assets, no spousal support, no money. He paid the fee and thought all was done. Six years later, he was in my office because he was going to remarry and when he went to get the paper work for his marriage license, he learned that he was still married. He learned that an error had been made on the judgment document itself. He had no idea where his ex was. So, I had to explain that we would have to request permission to serve notice by publication that we were going to request a change to the judgment, giving ex the opportunity to respond. This would take 4 weeks once the court approved the request. Then, there was the time it would take for the court to review and approve the change. That's the long of it. The short of it: he could go forward with the ceremony (the wedding was scheduled for the following week, with family and friends flying in from all over the country), but he could not be legally married until the judgment was corrected.

    I know that many of my colleagues have had similar experiences having to correct errors committed by those doing it on the cheap. Such services often end up costing more later to correct. Remember, you can have cheap, you can have fast, or you can have quality. Usually, the three do not co-exist... Something gets sacrificed. As my colleague said, if it is truly that simple, a status change, you would be better off going through the self-help center.
    I hope this is helpful to you. Good luck.

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  • Married in Costa Rica and have certificate from there, but we never registered the marriage in CA. How to divorce if not reg?

    I was married in Costa Rica 8 years ago to a Costa Rican. The marriage was registered there, but we never registered here in California. We now want to get a divorce but have no idea how to do so if we were never married here. Do we need to get di...

    Diana’s Answer

    So long as you have lived in California for 6 months prior to filing, and in the county in which you file for 3 months prior to filing, you can file here. The location where you married is not a factor for filing. If you are cooperative and in agreement, you may be able to work with one lawyer acting as a neutral mediator to prepare your documents in proper format. You can also explore mediation to resolve those items over which you do not agree, or a collaborative process if you would each like to have your own lawyers advising you in an out-of-court resolution process. Litigation (fighting in court) tends to be the most expensive and lengthy way to divorce, but if you are not able to reach agreements, or either or both spouses refuse to cooperate, that may be the only option for getting your divorce completed.

    I hope this helps. Good luck.

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  • I just got sent divorce documents via email. I opened the email but not document attachments. Have I been legally served?

    I do not want my soon to be ex to know my current address for safety reasons.

    Diana’s Answer

    No. Service of process (the formal term used for serving the petition documents) requires personal service, by someone other than the petitioner, who is over 18, unless the court has approved service by publication. Service by publication is approved when the petitioner is not able to locate the other party, and it requires publication in a periodical local to the location where the other part was last known to have lived. Either way, service by email IS NOT a proper service. If you have safety concerns, you can give him/her an address to use, other than yours (maybe work or a friend or family member's address), where s/he can serve you by by mail. Service by mail is ONLY proper if you sign a form called a Notice and Acknowledgment of Receipt. This is a much more efficient way to handle service, assuming the respondent agrees to accept such service.

    Now this does not prevent the petitioner from notifying the court that you have been served - all that person has to do is complete a proof of service of summons. Since you have not been properly served, you may think you have nothing to worry about. But if the court is not aware that service was not proper (they only have what your spouse tells them), they may enter a default against you. You will then have to request that it be set aside, and you will have to show the judge that, in fact, service was not proper. It just gets messy.

    Since you know something has been filed, I would suggest you check with your local courthouse and that you consult a lawyer, or you can try to handle this yourself (never a good idea). You or your lawyer should notify your soon to be ex that service was not proper, and to please send you the document either by mail with the necessary documents to accept service, or have someone deliver the documents to you. At least, this way, you have written proof that you notified your soon to be ex that service was not proper, if s/he later tries to claim proper service.

    Again, because of your safety concerns, as well as being equipped to make informed decisions, I would strongly encourage you to retain a lawyer. Your soon to be ex would then be able to communicate with your lawyer, rather than directly with you.

    I hop this is helpful. Good luck.

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  • If couple marry have no children from marriage divorce in 5-years & money used to purchase & furnish home man had prior to

    the marriage. What would happen in divorce where on ly matter would involve who gets the house or what is required to be done with the house? If wife put no money into house and husband made all payments would the husband be the one entitled to k...

    Diana’s Answer

    Remember, from the date you married to the date of your separation (usually physical separation unless you both agree to another date), every dollar you earned was half hers. This is California Family Law on community property. So, if you used your income to pay for your separate property home (purchased before marriage and you did not put her on title), you used half of her money to pay for your separate property. So, the community (both spouses) would have an interest in the funds paid towards the house, although not the house itself.

    It really doesn't matter where you married, it's where you qualify under the jurisdiction requirements. In California, you must have lived in the state 6 months prior to filing for divorce, and 3 months in the county in which you file, prior to filing. That may be why Nevada lawyers did not respond.

    Parties can AGREE to anything. The judge is the one who is bound by the law IF the parties do not agree. If you did not put her on title, then the only basis upon which she could request anything on the house would be the income you earned and then used to pay for the house. If you did put her on title, there is a presumption that you intended for her to share in the ownership, unless you show a fraud - that you were tricked or didn't understand what you were doing.

    As you can see, this can get complex. There needs to be some value to her agreeing to give up something that may be quite significant. This is why EVERY lawyer on this forum will/should recommend that you consult your own lawyer - there are many technicalities that can make any general information you receive her completely useless. YOU SHOULD NOT RELY ON GENERAL INFORMATION FROM A LAWYER WHO DOES NOT KNOW THE SPECIFICS IN YOUR CASE. It is far too easy for people to leave out information that may not deem important, but could be critical in the analysis of the situation. Many lawyers will work on a limited scope or flat fee basis, and the specific advice you receive can end up saving you costly mistakes later on.

    Good luck.

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  • Filing for divorce and we are on a month to month lease. What is necessary other than a thirty day notice from myself.

    My husband is not agreeable.

    Diana’s Answer

    • Selected as best answer

    If you are both on the lease, you need to have a conversation with your landlord and see if s/he would agree to keep the lease with only one of you obligated. You could just move out, but that would leave you on the lease and, therefore, liable, if your husband just stops paying. It could, possibly get sorted out in the divorce, but that could take months/years. Why add to your woes? Giving notice, however, can also increase the level of conflict between you and your husband as you enter divorce.

    In my experience, there is very little that is truly complex about Family Law (yes, you can send notice). What makes these cases truly complex is the emotional component. And the steps you take at the beginning of your case (often to "protect" yourself) can actually end up costing you more because it sets the tone for a high conflict situation ("since you did me wrong, I'll do you wrong").

    You may want to speak with a lawyer who works in conflict resolution processes such as mediation and/or collaborative law. That person may be able to give you some guidance and/or resources to find a better way to communicate and cooperate with your spouse to achieve the desired outcome. Since you are on a month to month lease, it wouldn't hurt to speak with someone first, before sending notice.

    I hope this is helpful.

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  • In the middle of a divorce and wanting to change insurance carrier. Can I?

    I provide insurance for both under employer. I would like to change insurance carrier for ease of getting the care I need with predictable cost of care. Partner is against changing carrier. Can I still change carrier as long as partner retains hea...

    Diana’s Answer

    Your question really belongs more appropriately under Divorce & Separation since Family law applies in this instance. You raise an interesting question, that can be very confusing to many. The Standard Temporary Restraining Orders ("STROs") prevent you from making any changes to the insurance that could harm your partner, such as removing them from coverage, securing coverage that covers less or does not allow your partner to keep his/her physicians, and the like. Your options if you are not able to reach an agreement with your partner are to either file a Request For Orders to change insurance carriers or take the risk and go ahead and make the change. Your partner can then file a Request For Orders for violation the STROs. The STROs are pretty clear in that you are not to, in relevant part, "transferring... of any insurance or other coverage, including... health... held for the benefit of the parties and their minor children." So you would be taking a risk by just doing it without an agreement or court order.

    It sounds like making the change without court orders, or even with, will likely increase the conflict in your case, causing more strife, delays, and expense. If you are trying to lower the cost, and the insurance would be the same, it may well be worth filing the request for orders. Otherwise, focus on completing the divorce as quickly as you can. If you have a lawyer, and I strongly recommend that you should, talk to them about moving your case in to mediation or getting it ready for trial so that you can get a settlement conference scheduled. If you do not have a lawyer, you may want to consult with one, or speak with one who provides mediation services. Try to imagine how you would feel if your partner were the one making a change over something that affects you and over which you have no control. In a divorce, there is usually decreased trust and increased suspicion. I would suggest taking a different tact to see if the two of you can start reducing the conflict and start working through the divorce more efficiently.

    I hope this information is helpful. I know it's not a direct answer, but the only direct answer you will get is to not make the change - ethically, no lawyer will tell you, under this set of circumstances, to violate the STROs. Perhaps with more information, but you really should share that in a confidential venue with your own lawyer. Good luck to you.

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  • I'm collecting from an unresponsive judgment debtor who is going through a divorce. How do I get PDD or FDD from divorce case?

    The debtor is going through a divorce and will be required to file a preliminary declaration of disclosure and a final declaration of disclosure. I dont have a lot of information on his assets otherwise. Is there some way to get the PDD or FDD i...

    Diana’s Answer

    Upon filing with the court, all documents are public record. You can go to the court house and pull the file.

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