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Diana Lucia Martinez

Diana Martinez’s Answers

470 total

  • Hi, what is the cost of getting a divorce if you and your spouse have no disputes?

    We own property together and want to keep it and we both live on the property in seperate locations. Our children are 22 an 19 years old and don't live with us anymore.

    Diana’s Answer

    The costs vary, depending on location, expertise and experience of the attorney with whom you work, the complexity of the items at issue, the level of conflict, and the list goes on and on. For those couples who already have an agreement, they are way ahead of them, and will, very likely, spend far less on their divorce than those who are at odds on everything.

    There are a number of attorneys who will help you in preparing the documents that are necessary. I strongly recommend working with an attorney so that nothing gets missed. Most attorneys will charge a flat fee for this. You can also work with an attorney mediator who can, if you run into a difficult discussion, facilitate that discussion towards a resolution. I've seen the rates for this vary in my area between $1500 and $3000. Don't forget to also factor in your filing fees. In most counties, the petition is $435 and the response is also $435. Check with your local court on this.

    Litigation (contested court battles) are, by far, the most expensive process and the state average was last calculated at about $25,000/person. I don't know if those stats have changed as I have not researched it in a couple of years. I do know that, often, when couples come to me for mediation, after several years of litigation, they have typically spent well over $100,000. In fact, I had one couple that came to seek a collaborative process, where, in 6 months, the wife had spent $70,000 on her attorney, and the husband had spent $60,000 on his. They were very upset because they had accomplished nothing except a temporary support order and an order that one spouse would have exclusive use of the family residence. Crazy stuff that people do.

    I hope this information is helpful. I've included some links to help you in your search for the right process and professional(s) to help you both out. Good luck.

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  • My Ex took all the money from the joint account and in divorce process he is claiming he is entitled to more than half

    we opened this account during our marriage with initial balance of $8K which he deposited the money (claiming he had this before marriage), after that my wages and his wages went directly to that account after 7 month we had $22K in that account ...

    Diana’s Answer

    There is not enough information to answer your question. You will find in this process that there is very little that is simple. Community property is anything that was acquired from date of marriage until date of separation (salary, credit card debt, retirement). Separate property is anything acquired prior to date of marriage, after date of separation, or be inheritance or gift (wedding ring, inherited property, salary earned after date of separation). So if he put $8,000 that he earned before you were married, that would be separate. Both your salaries/wages that you earned while you were married were community (50% of each dollar you earned was his and 50% of each dollar he earned was his). If all of this money went into a joint account, regardless of the source, you may have a co-mingling issue that would require tracing to get down to the exact sums that were separate and community. Typically, if it's a joint account, it shows an intent to make it a community fund, which means you both get half. But that, in and of itself, does not change the character of separate funds. It's far more complicated than that. Going just off of the title "joint account" would give the perception that you are equally entitled to that money as he is.

    A "fair solution" depends on how you both define "fair". His idea of 50/50 is clearly different from your idea of 50/50. Not to mention that there may be community expenses/obligations that only one of you is paying right now (and, since it's post separation, putting the other in a position to have to reimburse him/her for use of separate funds towards community obligations), you may really start complicating matters further.

    I strongly encourage you to have an attorney review this with you. Understanding what the law is and how it applies to your situation is going to be critical to you being able to work towards that "fair solution". I've attached some links that may help you find some useful resources in this process. I hope that are of some use. Good luck.

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  • I was divorced in 2008, my ex had walked out on me. I did not want the divorce nor did I have the money to contest the divorce.

    My Question is: am I entitled to any of my ex's pension and if so how would I go about getting that?

    Diana’s Answer

    Under California law, that portion of the pension earned between the date of marriage and the date of separation would be deemed community property. Because it is a pension (an unearned future benefit), typically, an actuary is needed to determine what portion, if any, is in fact community. This is done through a Qualified Domestic Relations Order. If your spouse disclosed the pension, and you were made aware of it's existence, you will need to go back to your judgment and see how that was allocated. If you waived all interest, either voluntarily or by failure to appear, you may have a very difficult time going back and trying to secure a portion of this asset now... 4 years later. If, on the other hand, this asset was not disclosed, fraudulently or by mistake, the court may still have jurisdiction (power) to address the issue - again, it depends on how your judgment is worded. If your spouse fraudulently withheld information relating to this asset, under California law, s/he could lose the entire asset to you, suffer a monetary penalty, or suffer evidentiary sanctions. You need to look at your judgment documents.

    I hope this information is helpful to you. Good luck.

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  • If my divorce motion was dismissed due to failure to appear, what do I do next?

    We both want to put it through, but is there any way I can avoid the 6 month "cooling off" period that California requires since we have been separated for years now?

    Diana’s Answer

    If it was a motion (hearing) that was dismissed, you will need to refile a new request. If it was your status conference that you failed to attend, then your case has been dismissed. If, in fact, your case was dismissed, you will either have to file a motion to request that it be reinstated (you will have to explain why you failed to appear), or you must file your divorce papers (paying the filing fee again) anew. The later option will restart the 6 month period when you serve your spouse or s/he appears in the new case.

    The 6 month period starts from the date the Respondent was properly served or the date s/he appeared in court (in person or on paper), whichever came first. There are no exceptions under California law. You can complete your divorce process in less time than that, but you will not be deemed, legally, a single person, until, at the earliest, that 6 month time has expired. On your judgment, the court will calculate that date.

    To expedite the process, you may want to consider speaking with an attorney who can either act as mediator or limited scope representative and help you put your paperwork together. This may help avoid further delays resulting from improper papers filed, missing, or incomplete.

    I hope this information is helpful to you.

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  • What are the legal rights of husband in a mediation or divorce case in california? or What sources would recommend?

    I am 62, married for 8 years and would like to know my financial responsibilities under the law for my wife. I bring in the majority of the income which has decreased significantly recently. She does not work full time and has not willing to wo...

    Diana’s Answer

    You have the same legal rights as a husband, as you would a wife. Your question seems to be more focused on California rules relating to spousal support and community debts. There is not enough information to be able to give you an accurate, reliable response. You really need to consult an attorney who can gather the necessary information and give you a realistic analysis. That having been said, in terms of resources, you should consider the following:

    Spousal support: temporary support is order only upon request and is calculated based on incomes. You can go to any law library or court house and plug the numbers in to the dissomaster or Xspouse, or whatever program they use. The temporary order, if any, tends to be higher than the final. Permanent support is what is ordered at the end of the divorce case. It CANNOT be based on the computer formula. The court MUST consider the factors specified in Family Code Section 4320. These include age, health, ability to pay, ability to earn, duration of the marriage, etc. The last item is my personal favorite: whatever the court deems just. So there is no hard and fast rule on the final support order. As a general rule, since your marriage was less than 10 years, if support is ordered, it may be for about half the duration of the marriage. I say "MAY" because there is no guarantee on this. It is the goal, legally, that you both work towards being self-supporting.

    Community debts: It is both your fiduciary responsibility to maintain the community so long as you are able to do so. That being said, if, after the date of separation (when one spouse tells the other s/he wants a divorce), one spouse uses his/her income (separate funds) to pay for community debts, the non-paying spouse starts to incur a debt to the paying spouse for his/her 50% responsibility of those debts. Many people are not aware of this. These credits/debts/reimbursements are often referred to as Watts/Epstein/Jeffries charges/credits. Typically, as per the Jeffries case, the courts will try to balance this with any support obligation, since it is usually the lower income spouse who incurs the debt. That way, the lower income spouse is not hit with tens/hundreds of thousands of dollars of debt to the higher income souse.

    All of this happens in litigation. Since your wife works part time, and you allege she is not willing to work since you separated, there may be a need for a vocational evaluation. On the other hand, you referenced mediation in your question. Mediation is an opportunity to change the nature of the conflict. Rather than trying to force the other person to behave a certain way, or accept a certain proposal, in mediation, you have an opportunity to hear and understand the underlying interests of each other, and craft an agreement that you can both say yes to.

    I would encourage you to do some research and decide what style of mediation may suit you best, what professional resources may help streamline your process, addressing the legal, emotional, and financial concerns you both bring to the table, and work on creating a process that will give you the greatest chance at resolving out-of-court, and in control.

    I've attached some links to help you in your research. I hope this information is helpful to you.

    Good luck.

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  • If i do not have any custodial rights to my children and am part of a difficult divorce can i legally buy my teenage son a car??

    My ex wife always lets the kids down claiming she is broke but will continue to pay an attorney to fight an ongoing divorce kids that upsets the kids tremendously. The likely next complaint of hers will be she wont want to pay insurance. Comment...

    Diana’s Answer

    You are absolutely correct - Your kids do deserve better.

    Short answer: You can buy a car for anyone you want, absent a restraining order. You can buy me a car if you want.

    Concerns to bear in mind: It sounds like your kids are really bearing the full brunt of this divorce battle. There really isn't enough information to give you advice on what to do or how to do it. So some general points to consider may be:

    - What does your wife want?
    - What would happen if you gave it to her?
    - What would happen if you gave her a little more?
    - How can you change the nature of the conflict?
    - Do you want to change the nature of the conflict?
    - If you could change your approach with your wife, would that ease the pain for your kids?
    - What if you could be the "safe" parent, regardless of your wife's behavior?

    What I'm getting at is that you do have more control than you may think. The catch? It's all on you. There are resources to help you. This is not the time to skimp on investing in the right professionals. A collaborative attorney/ mediator, child specialist, communication coach, and/or financial specialist may mean the difference between the continued suffering of yourselves and your children, or the start of the healing process towards a healthy post-divorce life. I've seen it many times. Even if she's not ready to disengage right now, YOU can change the nature of the conflict.

    I've attached some links to help you in your research on changing the nature of your conflict. Keep those kids as your focus. They will feel it and see it.

    Good luck.

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  • How can i go about filing for a judgement on my divorce? we went to court in 2008 and agreed upon everything including visitatio

    we agreed on everything including visitation but I have not received my divorce and now the court is saying i need to file a judgement where do I go for that and what do I need to do

    Diana’s Answer

    My colleagues are correct. There is another alternative. You could request mediation through the court. Mediations are held the 1st and 3rd Friday of each month. There is currently a rather long wait, as I understand it. Once you are on the mediation calendar, the clerks will put your file together for the mediator, will all documents prepared, blanks to be filled by the mediator, and a stack of additional documents that may be needed for your case to be closed. The mediators are attorneys who act as neutrals in helping couples reach agreements and complete the court required paper work.

    If you prefer not to wait, find an attorney who will do the judgment documents for a flat fee or on an hourly basis (shouldn't take more than a couple of hours if you have full agreement). I am mediating in Riverside court this Friday (tomorrow). If you and your spouse would like to meet me at the court house to try to get this done, give me a call and we can work out the details.

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  • How do I value a transmuted community property in divorce settlement?

    The property has depreciated since I was put on title. However, it earns the community approximately $10,000 net (after expenses) in rental income per year. My spouse wants me to quit claim my interest in it. I was ready to do that since I have...

    Diana’s Answer

    Your question has generated several very good responses from some highly regarded professionals. I wanted to add a couple of comments. Your question is complex. There is no easy answer. Providing a reliable and accurate response requires more information than you have given. It actually requires a legal AND financial analysis as to what would make sense.

    Sadly, the law is what it is. And it applies to everyone, "cookie-cutter" fashion, regardless of your knowledge of the law, experiences, or goals. If you are not able to come to an agreement, the court will, very likely, order the property sold and will determine, based on the evidence properly presented before him/her, how the funds will be divided. Who wins? The realtors. Clearly, as you have stated, this makes no sense for either of you. The judge will not quantify the monthly income and a fair "buy-out" value. You may want to try and get a realtor appointed as an expert who could present testimony as to the overall value of the property, but then you would need to have a working understanding of the evidence code AND of California Family law to be able to 1) present the evidence and 2) show why it is relevant in this case. There are a lot of unknowns here.

    Have you considered sitting down with a mediator or a team of mediators/collaborative professionals to resolve this one item? It may be financially worth the effort. Too often, people are operating under misconceptions of the law, misunderstanding and/or assumptions of what is motivating the other person, and/or pure emotion (fear, anger, denial, etc). This is why people spend hundreds of thousands in a divorce rather than settle for pennies on the dollar. Smart business people make dumb business decisions when driven by emotion or lack of accurate information. This is why, when I am working on a divorce case, I prefer to have the legal (attorney - me), emotional (mental health professional), and financial (CPA, Financial Planner) working on the case. It ends up being far less expensive and far more productive when resolving these kinds of issues. I also bring in real estate professionals if needed.

    You do have options if you are willing to work towards a resolution. Handling it as you always have will, likely, not yield better results. It may be time to do it a bit differently.

    I hope this information is helpful. I've attached some links if you would like additional information. Good luck.

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  • In a divorce, is the property assessed in present time or at the time of purchase. My husband wants me to pay him the differenc

    We have an 18 year marr. He left 4 months ago. He wants money, does not pay support and wants 1/2 of the house and property (what we paid for it) not what it is worth now. Is this legitimate? We have a child, he pays no support or support for ...

    Diana’s Answer

    It sounds like your spouse has many unrealistic expectations. He may be hearing incorrect advice from family/friends, or media, perhaps. He may also be positioning himself to make it seem like a "walk away" (no one gets anything from anyone) sounds good to you. This is probably one of the most important times to have information - for you both to make sound decisions, for yourselves and your children.

    My colleagues are correct in reference to the house: it is valued as of present day. However, there are a number of other factors that could impact what, under the law, you receive and what he receives. For example, did either of you invest separate property funds in this property? Was it an inherited property? Did one of you "quitclaim" the property to the other?

    In reference to child support, you can go online to the California state web site and run the numbers yourself - google "California Child Support Guideline", then, once at the site, follow the prompts. Or, you can go to your local law library and run either the dissomaster or xspouse - they have different software that their courts use.

    As for spousal support, there is temporary (while the divorce is being processed through the courts) and permanent (the final decision of the judge). Temporary can also be calculated using dissomaster or xspouse. For permanent, the court MUST consider Family Code Sec. 4320 in making that determination.

    There are many factors to consider here. I would strongly recommend that you seek legal counsel to best decide how to proceed. Otherwise, you are making decisions blindly. The law is one piece of this puzzle that will help you make a final decision. If either or both of you have unrealistic expectations, you will find yourselves in a contested court battle and, in the end, feel like you were run over by a bus when the judge rules against you. The judge MUST follow the law based on the evidence provided. And the evidence can only come in if it is done in compliance with the California Evidence Code. So unless you are familiar with and understand BOTH California Family Law AND California Evidence Code, you need to talk to an attorney experienced and knowledgeable in both.

    There are other options outside of a contested divorce battle, that educates you both so that you are making informed decisions AND puts you both in control of the outcome (rather than leaving it up to a judge). I've included some links below to help you make an informed decision on how to proceed.

    I hope this information is helpful. Good luck.

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  • Filed for divorce over a year ago, no divorce decree yet, ex trying to take daughter away when i dont do what she wants.

    trying to get divorce decree and settle things with ex. She comes to the house unexpected, i cant have another woman around, she fights in front of my daughter. what can i do?

    Diana’s Answer

    Have you considered working with a child specialist and/or divorce coach? While it takes two to tango, it's hard to fight by yourself. I've had a number of clients who learn to "disengage", even with the most difficult exes.

    It sounds like you need some help in creating boundaries. You can do this, as my colleague indicated, by filing a request for temporary orders with the court, and have the judge order a temporary child custody and visitation plan. Most counties require that you attend court ordered mediation (typically, one hour with a social worker who will tell you what your custody and visitation agreement should be and, depending on the court you are in, may report that recommendation to the judge). Or, if you are both willing, you can work with a private mediator and try to resolve this on your own terms. Again, a child specialist/coach, working with the attorney sounds like it would be optimal given your situation. You are not alone in this. Many have gone through the same challenges. Many have successfully resolved these challenges through out-of-court processes that focus on your goals, needs, and concerns, and that of your spouse - family focused processes. It may not sound possible, but it is - I've handled many myself.

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

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