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Diana Lucia Martinez

Diana Martinez’s Answers

470 total


  • If I collect child support is it possible to also be ordered to pay spousal support

    I am filing for divorce after 22 years. During our marriage my income was double + than that of my husbands. He doesnt seem to have any interest in seeing our kids and left me with a lot of bills he refuses to pay. I want file for child support...

    Diana’s Answer

    The short answer to your question is Yes. There are many factors that are taken into account when establishing spousal support. While this may not be the answering you are looking for, the only responsible and ethical recommendation based on your post is: See an attorney right away. The more realistic your expectations, the better empowered you will be to make a decision. You should also note that the child support, while it is paid to one of the parents, belongs to the child, not the parent. For that reason, it is always modifiable. If the amount agreed to is less than what the state guidelines require, the court, upon the receiving parent's request, MUST order the guideline amount. In contrast, with spousal support, you can agree to whatever you want (as your final order). You can even agree to waive the right to ask for spousal support. Note, that in a long term marriage (over 10 years), spousal support, if the court deemed it appropriate, could be order to continue until death of either spouse or remarriage of the receiving spouse. Also, there is a state requirement that the receiving spouse take steps to become self-supporting (not that he actually become self-supporting). Failure to do so could result in that spouse's support being significantly reduced if not eliminated completely.

    There is much for you both to understanding before moving forward. Do your research and have an attorney examine the specifics of your case. You may even want to consider working with a mediator or in a collaborative process so that you both have more of a voice in your final outcome.

    Good luck.

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  • I'm trying to complete a divorce from 12 years ago that is still pending. Uncontested, no kids, no property.

    The original filing was in LA county Ca. I now live in riverside county. I had a paralegal help with the default, summation on finances and judgement but she said the paperwork might not be the same county by county. I just want to know if I'm ...

    Diana’s Answer

    Your fact pattern does not make sense - after 12 years, with no children and no property, it is very likely that your case has been dismissed. I would strongly recommend that you invest in an attorney to look into the process and see what has happened and how to correct it. It may be a simple matter, or you may have to start all over. Sadly, my colleague is correct: this is a common problem with using independent paralegals, rather than an attorney. And, you have little to no recourse, since that person is not licensed by the state bar and, therefore, is not governed by any licensing agency. In short, the paralegal has nothing to lose... but you do.

    Good luck.

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  • What is the law in regards to division of assets ie household items?

    It may seem petty to ask for dishes,silverware microwave ect. I see it as a necessary need to get on my feet again without added cost

    Diana’s Answer

    • Selected as best answer

    This is a common challenge that many divorcing couples experience. If you are looking to the law for an answer, you will find that anything acquired during marriage, that is not separate property (inheritance, gift, for example), must be divided 50/50. When valuing these items, the courts consider "garage sale" value, not what you originally paid for the item.

    Most spouses will simply agree between themselves, divide between themselves, and replace what needs to be replaced. Some spouses are much more detailed, and will include linens, table ware, etc. If it's not in the divorce decree, the court cannot enforce it. BUT, the courts really do not have the time or the patience to listen to the two of you argue over napkin rings. In short, the best thing you can do is resolve this with your spouse. For those items you need to replace, thrift shops, garage sales, and discount stores are a far less contentious and far less expensive alternative to battling with your spouse through the courts - it's just not worth it. I am not making light of your situation. I have seen court "slam" spouses for taking up court time for these kinds of issues. It will cause you more stress than you need.

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  • Cost to divorce someone you've been separated from for 21 years. Married in New York only together for 2 years.

    Married 1990 separated in 92. Have grown son.

    Diana’s Answer

    If you are both ready to resolve, there are many of us who will prepare your documents at a flat rate. If you have certain issues over which you disagree, mediation through a family law attorney trained as a mediator may be your next most financially efficient option. If it is going to be a court battle, you are probably looking at about $25,000+ each in legal fees.

    My suggestion would be that you both meet with an attorney who offers "unbundled" family law services. That person will have a good idea of how well the two of you communicate and who "agreement ready" you are, and can help you create a process that will meet your concerns and your goals. Personally, I have mediated some divorces in less than three hours, and I have had some that have lasted 2 years. I do a lot of document preparation for clients who already have an agreement and just need to make sure the proper paperwork and proper language is included to get their agreement through the court. Do your homework, research the professionals you are considering, and speak with your spouse so that you both have an understanding as to how to move forward. That will help keep your costs down and your case moving forward.

    Good luck.

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  • Legal separation, time to divorce

    We have been legally separated approx 20years. What steps do we need to do in order to move to a divorce. It's been too long....we both live in California

    Diana’s Answer

    You will have to file your petition for dissolution of marriage in the proper state and county as my colleague has explained, and pay the court filing fee. There is a separate filing fee for the response, unless you proceed by default. You will have to complete your current financial disclosures and serve these on your spouse along with the petition documents. You will also have to prepare a judgment (your agreement regarding spousal support, child support, custody, visitation, division of assets and debts, and any other relevant information), along with the required judgment forms to be able to process the divorce successfully. Without these items, the court will not approve your judgment.

    Since you have been legally separated for so long, this should be fairly simple. You should be able to simply copy the separation agreement in large part. However, you will have to update your financial disclosures. The law requires disclosure of all CURRENT assets and debts, income and expenses. I understand that this may not make sense to you since you may have already divided everything that was community. Unfortunately, disclosure of BOTH community and separate property assets and debts is required by California Law.

    If you are both in agreement on everything, you may find it more efficient, and less stressful, to hire an attorney on a limited scope bases to act as a neutral document preparer or as a mediator. As a mediator, the attorney can help you both reach agreement on areas that are still unresolved. With your permission, that person can also prepare all of the necessary forms. The benefits here are that you have a professional knowledgeable in the field handling the matter with out it costing a bundle or making the situation more contentious than it should be. There are a number of such attorneys doing this now. I've included some helpful links to get you started.

    Good luck.

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  • How do I recover $40,000 that is claimed to be community property?

    Facts: -Married: 1/09 -Separated: 3/12 -Termination of marriage: 6/12 -Trial: 2/13 -I inherited $40k from my mother (as a graduation gift for obtaining my master's degree) BEFORE the date of marriage -I NEVER commingled the $40k with any com...

    Diana’s Answer

    How was this handled in your divorce judgment? It should have been addressed there. If it was not, you have several options, all of which are complex and require a working knowledge of either California Family Law or California Rules of Contract AND California Rules of Evidence and Civil Procedure. You have issues of tracing, issues of intent, issues of which rules to apply (family or contract), and so much more. No attorney can advise you on all of this, based on the limited information you have provided, in a way that you can fully understand, AND keep their license. I understand that you do not have the funds to hire counsel. This really is one of those situations where you have to ask your self can you afford to NOT have counsel. This is not a simple case. I would strongly recommend that you, at minimum, schedule an initial consult with an attorney who can provide you with some clarity on the process and the complexity of your situation. There are options that are less expensive than litigation (a court battle) that will allow you to walk away with an agreement you can live with rather than bankrupting yourself to get an order with which you cannot.

    Good luck.

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  • We are filing for an uncontested divorce and agree to divide everything up evenly. However there is a retirement plan.

    I have a retirement plan of around thirty thousand, but both my husband and I dont want to touch the plan. We decided that we will divide everything else up evenly and leave the retirement as is. Will a stipulation agreement signed by both sides b...

    Diana’s Answer

    Congratulations on being able to resolve everything without an all out divorce court battle. Your questions carries some complexities that cannot be fully addressed on a public forum such as this. This is where what you don't know can really come back to bite you later on. While it may be cheaper in the short run to do this without an attorney knowledgeable in this field, later on, it can cause a much more expensive, complicated situation. You need proper language AND disclosures to do this right. There are many attorneys who charge a low flat rate for "unbundled services", such as preparing your judgment and/or disclosures. It's worth the investment so that you don't pay a greater price later on.

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  • I live in CA. I found out my husband has been cheating on me via asian massage parlors, once to twice a week for 2-3 years now.

    We have not yet filed any court actions but will be doing so soon. How can I protect the relatively minimal amount of money I've pulled aside for my short term future, all of which was my earnings. In the entire 3 + years that we have been marri...

    Diana’s Answer

    You have had a number of responses that are excellent suggestions. My question to you is what do you want? This is what should guide you in selecting a path for divorce/separation/ whatever. You need to speak with an attorney so that you decisions are well-informed. The legal realities are important. And so are the practical realities. You need to understand California rules of community property and prenuptial agreements. I would think that you would also want to understand the process of divorce through the court system (evidence required, temporary orders, duration, cost, etc). It also sounds like you have some questions about where this process, and your divorce will leave you (financially, perhaps) in the future.

    I would strongly urge you to spend some time gathering information so that you are prepared and knowledgeable when you take that first step towards divorce. There are a number of resources (I've attached some links) for you to do this. One such resource is a workshop that is given at various times by various professionals. The fee ranges from free-$100+. I am presenting one such workshop this weekend, Saturday, November 10, in Chino (not far from you at all). It is a full morning workshop, $45 fee, in which you will hear from professionals working in the legal, emotional, child, and financial arenas of Divorce. Take a look at the links below. We do request RSVPs (space is limited). If you have additional questions, again, I suggest you contact a family law attorney.

    Good luck.

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  • I am the respondant on a divorce case in Los Angeles, but live in Arizona. Can I just default?

    My husband and I have been separated for about 5 years now and he served me with divorce papers through the mail. He lives and filed in Los Angeles and I live in Arizona now. I agree with the terms he put on the forms. Can I just default? Whats ...

    Diana’s Answer

    Your best option is to file a default with an agreement. There will likely be I intended consequences if you make absolutely no appearance (even on paper), given that you have children together. Do not create future regrets. You can do this simply and at minimal cost, especially compared to the on consequences and associated costs of repairing Jose consequences, if possible, in the future. There are attorneys who work on a limited scope basis in doing just this - preparing the documents or just acting as a consultant. His is too important to ignore.

    If you agree on all points, and attorney can make sure all proper documents are filed, so the judgment is not rejected. A consulting attorney will make sure you are making informed decisions and that you understand the benefits, risks, and consequences of those decisions. Do not let the upcoming nuptials become a nightmare because the divorce was rejected or because a complication arose because of an agreement you reached or something the court ordered against you because you ignored the filings. Seriously, this is not a situation where you should just go with the flow.
    I hope this information is helpful to you.

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  • What are my rights as a wife with alimony and child support.? Not working at this time.

    My husband has not filed legally for divorce. we are still in the same household but consider ourselves separated at this time. I'm am unaware of my rights and also how to even start to move forward. Please advise?

    Diana’s Answer

    I would strongly recommend that you start gathering information. There are a number of legal ramification related to your "date of separation". This is a legal term that you must understand in order to make any decisions in moving forward.

    There are several community workshops in the area that help educate individuals and couples on their divorce options. Saturday, October 13, there will be one held at Orange Coast College. I've attached a link so that you can look into it. It is a full morning workshop where you will hear from an attorney, mental health professional, child specialist, and financial professional on the legal, emotional, child, and financial aspects of every divorce. They review the different options for divorce, including litigation (contested court battles), Collaboration (out-of-court, team process), and co-mediation and mediation (out-of-court resolution processes with neutral professional(s)). If possible, it would be good if you brought your spouse to the workshop, or had your spouse attend the same workshop on a different day (the November workshop is being held in Chino).

    Without information, it will be very difficult to make the right decisions. You are going to hear from a lot of people, most well-meaning, on what you should or should not do. The steps you take now will have a serious impact in how the process moves forward, and can have a serious impact on the final outcome of your case. Please, at minimum, talk to an attorney, preferably several, and attend a workshop. You will have a much better understanding of the different options and which option will give you the best chance at a successful outcome, as you define it.

    I hope this information is helpful to you. Take a look at the links I've included. I think they will be very helpful to you.

    Good luck.

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