Skip to main content
Diana Lucia Martinez

Diana Martinez’s Answers

470 total

  • FL-150 INCOME AND EXPENSES DECLARATION- Are considered the IRAS as other deposit accounts in question 11.a ASSETS??

    Divorce Form FL- 150. Should I include in the total value of the question 11, a. the money from my IRAS Accounts and / or of the IRAs accounts of the soon to be my ex- husband? ( I know that I need to include the value of my saving accounts , che...

    Diana’s Answer

    All community AND separate assets and debts in existence must be disclosed. FL-142 has an extensive list that identifies exactly what must be disclosed. IRAs are included in that list.

    See question 
  • What is the difference between an arbitrator, mediator and neutrals.

    As they relate to settlement conferences.

    Diana’s Answer

    Arbitrators and Mediators are both neutral participants, meaning they do not favor either party and they do not give legal advice to either party.

    An arbitrator will consider your evidence (testimony, documents) subject to the rules of evidence and procedure to which you and the other party agree or as set by the arbitrator. The arbitrator will then make all of the decisions as to how you will divide assets and debts, how much time you will have with your child(ren), and how much support (child/spousal) you will pay or receive. Depending on the terms of the arbitration, the arbitrators decisions can be final orders, binding on all parties, or they can be non-binding, thus giving all parties an idea of how the case may be decided if it goes to trial before a judge.

    There are many different styles of mediation. A facilitative mediator facilitates the discussions so that all parties can make their own agreements. This is done by identifying the items in dispute, each party's underlying interests that fuel their positions, and creating a new way of communicating and understanding the concerns about the disputed items. An evaluate mediator will evaluate the possible outcomes of a case, much as an arbitrator does, so that, when making decisions in mediation, each party understands the potential consequence of not reaching a decision. Some mediators use a combination of these two styles, some are more forceful in pushing for resolution, and some are more focused on having the parties carry the responsibility for reaching agreement. Depending on your mediator's style and effectiveness, you may walk away with new tools on how to handle future conflicts, or you may always need someone else to intervene. Either way, at the end of your mediation, if you have reached an agreement, that agreement can be filed with the court, signed by the judge, thus making it fully enforceable.

    Both arbitration and mediation are confidential processes. Both can result in fully enforceable judgment, and both can keep you out of court. The primary difference is in how you reach that final judgment: either by someone else telling you what it will be, or by you and your spouse telling the court what it will be.

    I hope this information is helpful to you. I have attached some links to help you gather more information. Good luck.

    See question 
  • I filed for divorce, and I give a copy to my husband, and made a copy and send it out to the court, but what now!!!! What is

    Next, we don't have kids or any property together.

    Diana’s Answer

    This can be a very confusing and frustrating process. First, in order for service on your husband to be proper, it must be done by someone other than you, who is also over the age of 18, and it must be personally served on your husband, unless he agrees to accept service by mail, which requires an additional court form. Next, you must file your proof of service with the court. Once that is completed, it is up to you to move the case forward. You may have already received a court date for a status conference. This is done randomly, so many cases do not get an automatic hearing date. If you did, the status conference is only for the court to find out what you have done in your case (have you completed the financial disclosures, are you trying to mediate a resolution, etc).

    So, once you have properly served your husband, he will have 30 days to file a response. If he does so, your case will proceed however quickly you and he wish. If he does not, you have the option of requesting a default against your husband. You will have to prepare, serve, and file your financial disclosures, and, ultimately your agreement (if you reach one together) or a request for trial if you prefer to have the judge decide all issues for you.

    If you and your husband have agreed on how to divide your assets and debts, if you have agreed on spousal support, and if you have reached agreement on all other items in your divorce, you may want to consider retaining an attorney for the limited purpose of assisting you with all of the necessary documents. Most attorneys will do this for a flat rate.

    If, on the other hand, you have not reached agreement on all items, you may want to look into working with a mediator who can help you not only reach agreement, but also prepare the required documents. This person should be an attorney. There is also co-mediation, where you work with two or more mediators (such as an attorney with a financial professional, or an attorney and a communication coach). And you also have the option of a collaborative approach to resolution, where you each have your own collaboratively trained attorneys, coaches, and a financial neutral to help you reach an informed agreement.

    Each of these processes is confidential and keep you out-of-court. If you successfully reach an agreement through any of these processes, you do not have to go to court and, usually, these processes are completed in less time than a contested divorce.

    Finally, you have the option of hiring an attorney to fight in court on your behalf. This does tend to be a more expensive and lengthier process than the out-of-court dispute resolution options I described above.

    You may want to consider doing a bit of research. There are a number of organizations and workshops in your area to help you in this. I am on the board with Collaborative Divorce Solutions of Orange County and I also participate in community workshops for those who wish to learn more about their Divorce Options. The next workshop will be in Anaheim Hills on October 13th. They are offered every second Saturday of the month, at different locations. You may even want to have your husband attend, either with you or at another time. In our workshop, you will hear from a collaborative attorney/mediator, a communication coach, and a financial specialist about the legal, emotional, and financial aspects of every divorce. It is a great program.

    I have attached some links to assist you in your research. I hope this information is helpful to you. Good luck.

    See question 
  • My wife filed for divorce yesterday. What should I do now? Should I hire a lawyer now or wait until I receive the paper?

    she started the separate bedroom last night and I ended up spending the night in the living room because her father had the other bedroom. Can I kick her father out? I don't know any details regardig the dividing of the assets. Should I worry?

    Diana’s Answer

    • Selected as best answer

    First, the fear and anxiety and confusion you are feeling is normal. The good news is that you do have many options on how to move forward. Given the questions that you have, I would strongly recommend that you speak with an attorney. When you start your research on who to interview, think first in terms of what you would like to see happen. Consider how much you would want to budget, the relationship, if any, you would want to have with your ex after the divorce, etc. You are in a critical first stage of the divorce right now. Your actions and behavior (and hers) will impact how your divorce moves forward: blood court battles or solution-focused resolution out of the court process.

    In a nut shell, your options include:
    Litigation: contested court battle. These tend to be more expensive and lengthier (sometimes taking more than 3 years). This is where people go when they can't figure out a solution - they turn it over to the judge.

    Collaborative Divorce: an out-of-court, confidential team process. Working with collaborative attorneys, coaches, child specialists, a neutral financial (whoever you need), you and your spouse work towards an agreement that you can both live with. The final agreement is filed with the court, is signed by the judge, and is fully enforceable.

    Mediation/Co-Mediation: an out-of-court, confidential process with a neutral professional or team of neutral professionals. Here, your attorney mediator cannot advise you or your spouse. S/he is a neutral who makes sure that you are both informed on what the law is, that you cover each item that must be addressed to complete your divorce, and facilitates the discussion so that all concerns are addressed. You also have the option of working with a team of neutrals (attorney and financial, or attorney, financial, and child specialist, for example). As in the collaborative process, your final agreement is filed with the court, signed by the judge, and fully enforceable.

    Mediation and collaboration tend to be far less expensive, both financially and emotionally, than litigation. They also tend to complete the divorce in far less time than litigation. Many people believe it would be impossible to negotiate or reach an agreement with their spouse. It is exactly those couples who will be in litigation for many years and for many 100s of thousands of dollars. I encourage you to do some research on these different options and speak with a professional well versed in the process of your choice. You don't have to give up or give in. You just need to be smart and plan, if you want a successful outcome.

    I've included some links to help you gather more information. There are also some wonderful workshops that review the many divorce options. Perhaps your wife would be interested in attending one as well.

    Hang in there. It doesn't have to go badly. And you are, most certainly, not alone. Good luck.

    See question 
  • Can my daughter who lives in Oregon now, file for divorce in CA if she moves here?

    She wants to move back where her family can support her.She lives in fear of her life because there are guns in the house.She has a 5 yr old son.

    Diana’s Answer

    She would have to meet the jurisdictional requirements for a California Divorce. That is, she must have lived in California for the prior 6 months before filing and in the county in which she files for the prior 3 months. She could file for a legal separation and simply assert that she has moved with the intent to reside in that county in the state of California. Legal separation does not have the same jurisdictional requirements. She could, if she wishes, later amend her petition, and request a divorce. A word of caution, however: if her husbands responds and requests a divorce, the case will very likely be moved to the state and county in which at least one of the spouses meets the jurisdictional requirements.

    I hope this information is helpful. I have attached some links to assist your daughter in gathering more information on divorce options. Good luck.

    See question 
  • My husband filed the dissolution of marrage. We made living trust 3 years ago.The contents can be reflect to the court order?

    We have been married for 17 years in California. He is already retired and recieving his pension. He doesn't want to split 50/50. But, our living trust shows everything 50/50. And made his proposal through his attorney.

    Diana’s Answer

    • Selected as best answer

    A living trust is different from a pre or post marital agreement. California rules of community and separate property will still apply. Sometimes that's a straight 50/50 split. Often, it is more complicated than that. The living trust will, obviously, be dissolved to reflect what each of you will have after the divorce.

    You may want to consider discussing your concerns with either a collaborative attorney or an attorney mediator. You will find that there are more options in these to processes than if you litigate (fight this in court). The judge must apply the law, whether you know it or not. In an out-of-court process, you can create an agreement that meets your concerns and you can bring in the professional you need to help provide the information that could impact your decisions later on. This can include an estate planner, a financial planner, and even a communication coach.

    I've included some links to help you gather more information. I hope you find it helpful. Good luck.

    See question 
  • My family has given me checks during our marriage (onto my name only). Is that common or separate property in divorce?

    Some of those checks were for 10K, others for $200, but they all added up to a relatively sizable sum. The larger of those went towards either the down payment for our jointly acquired house or I used them later towards the principal. My soon to...

    Diana’s Answer

    My colleagues are absolutely correct. Here's the thing, if you are going to battle this issue in court, remember that the judge is literally bound by the law. S/he could agree with your position 100%. If the law does not support it, s/he must rule against you. And it is not just the Family Code that binds the judge. It is also California Evidence Code and California Rules of Civil Procedure. You may have a box full of documentary evidence. If you don't know how to introduce it, the judge cannot look at it. And judges completely understand when parents side with their children. As such, the judge will apply appropriate weight to such evidence.

    You may want to consider consulting a collaborative divorce attorney or mediator, and possibly a financial specialist who can work with both you and your spouse, to work towards an agreement that satisfies everyone's underlying concerns. There is a lot more at play here than money. Most divorces are fueled be emotion: a sense of fear ("how will I support myself", "this isn't fair") or, perhaps, anger ("I don't want the divorce, so I'll make her pay for it"). I once settled a divorce that went on for 3 years before they came to mediation. They were able to resolve when the husband was allowed to speak his mind at feeling like he was never a priority in wife's life. Wife apologized for making him feel that way. Suddenly, an agreement was born. It's crazy, but working with the right combination of professionals can make all the difference.

    I hope this information is helpful to you. I've attached some links to help you during this difficult time. Good luck.

    See question 
  • When a home is purchased by two people, one using living trust funds, in a divorce are those funds suppose to be paid back first

    Home was purchased before marriage, wife using trust fund dollars to purchase and put more down that husband. When house is sold after divorce are the trust fund dollars suppose to be paid back to wife first out of profits?

    Diana’s Answer

    This is a complicated issue given when the property was purchased and how. It is important to understand how the law deals with this. It is equally important to discuss if you and your spouse can come up with a better option. I would strongly encourage you both to speak with an attorney mediator who may be able to facilitate this discussion. Otherwise, you are rolling the dice with the judge, who will be bound by California Family Law, California Evidence Code, and California Code of Civil Procedure. If you don't know all of these, you could be in for a serious shock.

    I hope this information is helpful to you. I've attached some links that you may also find helpful. Good luck.

    See question 
  • How long does an average, simple uncontested regular divorce take in Los Angeles?

    Does it take more than the required 6 months? Due to court backlogs? If so, how long?

    Diana’s Answer

    The clerks tell us to expect a 6-8 week time frame from the time the judgment documents are filed to the time they are returned, signed by the judge. This does not change the 6 month time frame which has to do with the time by which you are legally returned to the status of single person. I find that the greatest source of delays is not the court but, rather, the spouses, either because they do not file the correct forms, or the complete them improperly, or they do not understand that the court does not send reminders as to what needs to be filed. It is very easy to get lost in the system. Documents get rejected all of the time. And, yes, mail does get lost.

    A little known fact is that there are ways to get your papers processed faster (no guarantees of course) if they are "mediated" or "collaborative" agreements. You should talk to a collaborative attorney or attorney mediator to see if they can help you with that.

    I hope this information is helpful. I've included some links if you would like to gather more information.

    Good luck.

    Make sure you know what you are doing to avoid these annoying delays.

    See question 
  • How much alimony am i entilted to after 2 1/2 years of marriage. He makes 80-100k (depending on overtime) and I make about 23k.

    The house is in his name because he bought it 1 year before we met. We currently rent that home out and are renting ourselves a townhome where we moved so he could change jobs. Two cars are in both our names. We have a joint savings account with a...

    Diana’s Answer

    There are no easy answers. So much can be an exception to the general rule. While my colleagues are absolutely correct in their assessment, based on the limited facts that you have shared, I have seen judges order longer term spousal support for very short term marriages (beyond half the duration of the marriage) and I have seen very long term marriages get a no or very short term support order. There are too many unknowns here. Section 4320 of the family code is a great place to start doing some research to get yourself educated on this complex area of the law. It also sounds like you have some community vs separate property issues that require some additional education.

    "Spousal Support" or "alimony" is very often a hot button issue. It brings out the worst in people when they enter negotiation. This is mostly because of the fear that drives the discussions: "how am I going to live?", "s/he's trying to take everything from me", "it isn't fair", etc, etc, etc. It would be a huge advantage to work with a neutral mediator who could educate you on the law AND facilitate a discussion based on your true, underlying interests. I know that may sound confusing. In a nut shell, it means that what you express may not be what is really at issue. Take, for example, the mother who refuses to leave the family home and insists that father give it to her, even though she cannot afford the payments. In mediation, it came out that her fears where not having a support system of neighbors and friends near by and having to change the children's school district mid year.

    I hope this information is helpful to you. I've attached some links to further assist you in researching options on how to proceed. Good luck.

    See question