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Diana Lucia Martinez

Diana Martinez’s Answers

517 total

  • Divorcing. purchased a house 1 year before marriage, in her name because of V.A. do i have any legal right to the house?

    going through mediation for a divorce and need to know if i have a legal right to half my house. it was purchased 5 years ago. my ex wife and i married 4 years ago and had lived together for 3 years before the purchase. we used a V.A loan so i was...

    Diana’s Answer

    Did she later put you on title? In California, absent a showing of fraud, title will control. It is not the loan that controls, it is the title. In mediation, you can reach any agreement you want, regardless of what the law would impose (that really is there more if you and she are not able to reach agreements... it is what the court must order). If she used income and/or funds that were her separate property (earned and/or acquired prior to marriage), she can request a reimbursement of those separate property funds. if you are on title, generally, the law would give each spouse half the value of the equity (fair market value minus any debts on the property). The court can deduct any separate property contributions (down payment, payment from separate property income) before dividing the equity - so you may receive less than 50%. If you are NOT on title, you do not have a legal right to the house. But you may have a right to reimbursement of half of the community funds that went towards paying down and/or improving the property. it is not a simple calculation as there are other factors that can come into play as well.

    California does not acknowledge a "common law marriage", and a domestic partnership must have been registered.

    Remember, like this forum, is NOT a substitute for individual legal advice. You really consult a lawyer to assist you as to your specific situation.

    I hope this information is helpful. Good luck.

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  • File for divorce in US or in India? Which is better?

    Hi, I got married 6 months back. I am on H1B and my spouse have H4 Visa. She was here for 4 months and then left me and went back to India. As per Indian Hindu Law, we cannot file for divorce within 1 year of marriage, and once filed, it takes...

    Diana’s Answer

    Where is best to file depends on your personal goals - what you would like to achieve. Perhaps the information you gather here will help you decide.

    To file in California, you must have lived in the state for the 6 months prior to filing, and in the county in which you file for the 3 months prior to filing. If you are both in agreement (uncontested case), you can finish all of the paper work in less than a month or two. You will not be legally single, however, until 6 months and 1 day from the date the responding spouse is properly served. She does not have to be present to do the divorce in the US, but if the matter is contested (you are not able to reach agreements/ you are fighting), you may have difficulty serving her (the method by which the court has the ability to make orders that are binding on her). You can serve her by mail if she signs an additional form accepting service by mail. Or, you will need to serve her in person (in California) for service to be proper. Again, if you are amicable and working together to divorce, this should not be a difficult part of the process. Once the divorce is completed, you will need to consult a lawyer in India to learn how to get the judgment here filed there in India and binding there - most California licensed lawyers will likely not have this information.

    As to spousal support (the equivalent of what other states call "alimony"), there are a number of factors that impact whether or not support is warranted, and if it is, how much, for how long, and if it is modifiable. As a general rule of thumb, in a marriage of less than 10 years, and IF the court deems support is warranted, the order is generally for half the duration of the marriage. In making the decision to order support, the court does consider duration of the marriage, history during the marriage (higher income earner, child caregiver, etc), ability to earn, ability to pay, and a number of other factors found in Family Code section 4320. The legislative intent (the goal behind the laws on spousal support) is that both parties work towards being self supporting. Obviously, in a longer term marriage, where one spouse has depended on the other's income for 8, 9, 10, 20 years, that person is going to need more time to rebuild his/her career/income ability and become self supporting. Also, the court will look at need and the marital standard of living. If you both lived very frugally, or if she is living in a location where her needs are far less, the court will take that into consideration.

    It sounds like you may even qualify for a summary dissolution, given the duration of the marriage. This is probably the simplest way to divorce, but neither of you can own real property and neither can be requesting spouse support. If you have no children and very little in debts and assets, you may qualify. There are a number of strict requirements, so you will need to review the rules and, possibly, consult a lawyer directly.

    Again, if you are both in agreement and cooperative, this will be a much simpler process, in California. And from what you shared in your question regarding India Law, you may be able to complete the process faster in California, but I am not certain.

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

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  • Property owned by couple not devided 50/50 financially after divorce. exhusband got 60K exwife got 0. refied 2007.

    Refinanced to diivide property. House is underwater. Both parties names still on title. During refi exwife getting degree did not have credit needed. Exwife employed and primary provider for 4 kids. Abusive relationship intimidated Exwife into ta...

    Diana’s Answer

    I'm not really clear on when exactly the divorce took place, or how the division of assets resolution (what ultimately happened) came about. This is critical to being able to answer your questions. If both parties are still on title, they both must approve to sell or short sell or???? If there is an order on who takes the property, title should have been transferred. If Wife was coerced or threatened, depending on how much time since the order was made, there may be an opportunity to re-open the case and she will have to prove the coercion/intimidation that resulted in her agreeing to this division (assuming it was an agreement and not a court imposed order).

    If what you are saying is that the $60K was supposed to be split, by court order/stipulation, and never complied with the order, again, depending on how much time has passed, ExW may be able to go back to court and request enforcement of the orders. If the $60K is gone and ExH does not have the means to make payment, that's the blood and turnip thing - you'll have an order enforcing the judgment, you can garnish wages, you can put a lien on any real property he owns, but absent ability, you've got a piece of paper saying you are right and that's pretty much it.

    I'm not sure if this answers your question. I hope the information is somewhat helpful to you.

    There are just too many unknowns to provide you with any meaningful information.

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  • Where to find out marriag record

    toll free numbr to find out how many time u been married

    Diana’s Answer

    There is no centralized data base or telephone number with such information. Each county has their own records for marriages and divorces. For divorces, the recent cases are online and older cases would be archived so you would have to go to the courthouse and place an order for the file. In Los Angeles and Orange counties, to view a divorce case online (assuming it is online), you would need the case number and name. In San Bernardino county you can do a search by name.

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  • Need to get divorced. My wife and I moved to Santa Monica on 8/1/15 from MD. Do we file in CA or MD?

    She had a year long affair. Its amicable. But we have only been in CA for 3 months. We were in Maryland for many years. I have no idea where to file. CA would be easiest. But I fear we will need to file in Maryland and travel / timing will b...

    Diana’s Answer

    It is my understanding that MD does have a 1 year separation requirement. However, I do not practice there and am not licensed there, so you should confirm with a lawyer licensed and practicing in MD. In order to file in CA, you must live in the state of 6 months prior to filing and in the county in which you file for the 3 months prior to filing. If you wish to file immediately in CA, you can file for legal separation and then later change it to a divorce once you meet the 6 month in state requirement. Alternatively, you can start working on your agreements (as you are amicable) and have the signed agreements ready to file once you have been here for 6 months. If you have a lawyer prepare all of the paperwork properly, you can create binding and fully enforceable agreements now, to be filed later. It MUST include the necessary language for it to be binding and fully enforceable.

    Honestly, even in amicable situation, it can take about 1 or 2 months to iron out all of the details and complete all of the required financial disclosures (especially if there is a pension as those documents can take a while to get). And, although California does not have a 1 year separation requirement, there is a period of 6 months and 1 day from the date the responding spouse is properly served before your divorce can be final (you are legally single again). The orders (agreements you create and Judge signs) can be binding and enforceable prior to this time, but you are not actually single until the 6 months and 1 day has passed. The judge will calculate the date for your. Either way, the more amicable, the lower the level of conflict, the faster you can complete your divorce process in California.

    I hope this is helpful of you. Let me know if you have any other questions.

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  • My wife and I are divorcing. I received a workers compensation settlement. The money is in my personnel account.

    Can my wife go after my injury settlement money?

    Diana’s Answer

    Typically, such funds would be the separate property of the injured spouse. There are some exceptions which include impact on the non-injured spouse depending on how the award (judgment) was worded. You will need a lawyer to review this with you.

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  • FL-150 Expense Declaration Question

    While filling out the FL-150 I across the section that asks "Who lives with you?". My Fiance currently lives in our house so obviously I would put her on here, but why do they need to know he gross income? They also want to know what she contribut...

    Diana’s Answer

    You must answer truthfully and completely. Doing otherwise compromises your creditability if it is every revealed that you were less than truthful. As to your finance's contributions to the household expenses, the court will use this in determining actual expenses and net disposable income as it relates to any support issues (typically).

    You are signing these forms under penalty of perjury. Aside from the legal consequences, again, you will lose credibility with the court and with the other party if you start playing games.

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  • I understand that CA is no fault state. In that case what would be the best way to have him punished for his faults?

    Topic: Divorce. I am a student and I am surely requesting for spousal support in my response i.e. FL-120. I understand that CA is no-fault state. In that case what would be the best way to have him punished for his faults? especially in terms ...

    Diana’s Answer

    • Selected as best answer

    Family court is not about finding fault for the marital problems. Too many factors go into that, for which the judges and lawyers are NOT equipped. Was one spouse emotionally unavailable? Was one spouse abused as a child, which has created attachment issues and/or personality disorders? There is way too much that goes into really understanding what makes people do what they do. In civil courts and in criminal courts there is usually a "bad guy" - someone breached a contract, someone stole a TV. In family court, the goal is to dissolve a marriage in a way that is balanced given the circumstances and the law. This is why California is a no-fault state.

    That having been said, there are two types of spousal support in a California divorce - Temporary and Permanent. The temporary is that ordered by the court while your divorce is in process (from filing of the petition and the request for orders on spousal support to the judgment, either by agreement or trial). This amount is usually based on a computer formula that calculates a "magic number" based on gross incomes and/or potential income. If the court grants a request for temporary support, this amount tends to be higher than the "Permanent" support. The reason being that the court would rather err on the side of caution in attempting to create some financial balance while everything gets sorted out. A word of caution, however, regarding spousal support: If you are working below your income potential, or if you have the ability to work and simply make no efforts to get a job, that court can "impute" income to you (pretend you are making a certain amount) and/or terminate the ability to request support all together, depending on the circumstances. I represented a woman after the court had already taken away spousal support because she would not get a job after repeated instruction from the court, and she had very young children. This is not a guarantee of what would happen in your case, since every case is different. But don't bank on temporary or permanent support until you have a good understanding of it.

    Permanent support is not Webster's definition of "permanent". It is simply the term used for the order the judge makes at the end of your case. This number CANNOT be based on the computer formula. The our is required to consider Family Code Section 4320 in making this order. Google the code section.

    Unless the two of you reach agreements as to support, the court will make a determination as to whether or not support is warranted, how much, and for how long. In a short term marriage (less than 10 years), the general "rule of thumb" is half the duration of the marriage. But this is not a guarantee that you will even get spousal support - there must be a demonstrated need and ability to pay. And, it is also capped at the "marital standard of living".

    There is much much more that may or may not apply to your situation. Right now, it sounds like you are going to have difficulty absorbing, understanding, and accepting what the law does and does not provide. This is not uncommon - divorce is an emotional trauma, especially when there has been infidelity. You will not be able to make well reasoned decisions until you address the emotional component. You may want to consider speaking not only with a lawyer, but perhaps a divorce coach who can help you bring some emotional clarity before you make any legal or financial decisions.

    Check out a Divorce Options program in your area - there's one being held in Costa Mesa tomorrow 10/20 at Orange Coast College. A lawyer, financial professional, and a divorce coach will be presenting on the different divorce options, requirements, risks, benefits, and costs. It may be helpful to you.

    Good luck.

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  • Divorce: Considering hiring a forensic account bc ex is hiding money, what can they do? What ability/access do they have?

    Can they find things I cannot? What ability and access do they have authority to? Is their role simply to evaluate patterns and trends of accounts or do they have substantially more access than me because hiring them is not a modest way to spend m...

    Diana’s Answer

    • Selected as best answer

    The reality is that if someone really wants to hide money, there are number of ways it can be done. The courts understand this. This is why they often look more at expenses that are being paid that at the income itself when calculating spousal support. This is why they look at the marital standard of living (an analysis that a forensic financial can do). Subpoenas are very effective at finding information from institutions with whom you KNOW your spouse has accounts. If you don't know about the institution itself, a subpoena will not help you.

    Understand, however, that failure to disclose violates not only the fiduciary obligations your spouse owes you in a divorce, but also family law statutes - full disclosure is required. Intentional failure to disclose has severe consequences... if later discovered.

    Although financials are expensive, a good financial will often see the gaps that lead to more questions and, often, disclosure. I had such a case years ago, in which the spouse finally came clean about hiding money. I don't know what the motivation was, but I suspect the financial's many questions started to freak the spouse out a bit.

    You need to make the call as to the value of a financial - are you expecting to find $1M or $1K? Is the investment potentially worth it? Did you see or experience something that leads you to believe there's some significant asset that your spouse is hiding?

    Good luck.

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  • My wife moved to Mexico and ceased communicating with me, can I file for divorce in the state of California in her absence?

    My wife has been out of my life for years now. We married and she obtained a VISA. One day she left and has never spoken with me since. I fear locating her in Mexico because I now have a pretty good idea her family is affiliated with organized cri...

    Diana’s Answer

    Short answer is Yes. The complication will be in getting her properly served. I would strongly encourage you to consult a lawyer. If you do not do it correctly, you judgment (final orders) could be open to later attack.

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