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Diana Lucia Martinez

Diana Martinez’s Answers

515 total

  • My wife is asking for divorce and want to take my 2 years son and lie with her sister

    I don't want my son to live with my wife sister due to some unaccepted behavior from her , so do I have the right to prevent that ? note :we do not file for divorce yet

    Diana’s Answer

    You absolutely have a voice in your parenting plan. The extent to which you will be heard depends on the process you select and the specific circumstances of your situation. What I mean by that is that in a litigated (fighting in court) case, the judge can issue orders only based on the law. This means that you must show the judge under which law s/he is allowed to grant your request. People often enter a divorce with a sense of what is just and who is the "bad guy". There is a great deal of dissatisfaction once they are actually in the court process and learn that their idea of "just" and "best interest of the child" is not supported by the law. The court must consider the "best interest of the child", as the law defines it. Things like gambling, infidelity, and even "excessive" use of alcohol may not give rise to limiting one parent's time with his/her child. Absent something extreme (DUI with the child in the car, molestation, abduction, for example), it is very difficult to take away a parent's ability to have significant time with his/her child. Many people have presented, as evidence, pictures from face book with the parent acting "inappropriately", only to have the judge ignore the images completely, or order BOTH parents to parenting classes for 6 months and $600. This is a small fraction of the cost you will spend when you consider the time lost from work and the fees paid to lawyers as you fight the seemingly never ending battle over custody.

    Alternatively, you can enter into an out-of-court process such as Collaborative or Mediation. In each of these processes, you would be working out of court with a team of professionals, which can include a child specialist. A child specialist is different from the litigation custody evaluator. The child specialist works with both parents and the child to address the concerns the each has, any divorce stressors, and help create a parenting plan that both parents feel is productive and safe. In my 17 years of experience, I have found it is far more efficient to work with a child specialist on such challenging child issues than a lawyer who charges far more. This does not mean that if your child is truly in danger that a child specialist is a substitute for legal counsel and court intervention. But if the situation is not that grave, you may want to consider what will be the process that will help you achieve success as you define it.

    I would strongly encourage you and your wife to get more information before doing anything drastic, again, unless there is an immediate risk of harm or injury to the child. There is a program called Divorce Options being held at Orange Coast College in Costa Mesa tomorrow, 10/20. Google OCC and Divorce Options. You will need to register through the college. There will be a Collaborative Divorce Lawyer and Mediator, a financial professional, and a mental health professional there to educate about the divorce process, costs, risks, and benefits. It is definitely worth attending.

    Again, if your child is at risk of harm, injury, abduction, or the like, you will need to get a lawyer involved immediately to request the necessary protective orders. If the situation is not this extreme, you may want to consider other options that will address your concerns, whether the law deems it relevant or not.

    Good luck.

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  • I've been separated from my husband for two and a half years. We both want a divorce. It's completely uncontested.

    He's a recovering addict. I have the children. He doesn't help financially. I want a quick divorce.

    Diana’s Answer

    As long as you are both able and willing to cooperate, it should be fairly simple and, relatively, inexpensive. Many lawyers take cases on what is called a "limited scope" basis. This means that they do not represent you, or either of you, for all purposes but, rather, for a very specific, limited, purpose. Some lawyers will take the case on as a neutral professional to prepare your documents (Petition, Response, Child Declarations, Financial Disclosures, and Judgment Documents) to process the divorce as uncontested. The benefits to this is that it tends to be the least expensive of the lawyer-assisted processes AND you have a lawyer ensuring that all is properly done and all required information is included. The risk to this is that, as a neutral, the lawyer cannot guide or advise either of you individually, AND you must be able to negotiate on your own behalf, AND reach agreements. When Weighing this option consider the most difficult discussion the two of you have ever had - how did it go? Guaranteed that difficult or sensitive discussions (like spousal support, child support, parenting time-share plan) will NOT be easier once you enter a divorce process. If you and your spouse have agreements on these difficult items, you will probably get through this process very smoothly. If, however, when you talk about money or children one of you gets angry and storms out, if you can't be in the same room together, if you say "yes" when you mean no because you don't want to deal with the conflict, this may not be a good process for you.

    I would recommend that you gather more information and attend a Divorce Options Workshop. Ginita Wall offers such workshops in San Diego once a month, I believe. There is also one coming up on 10/20 in Costa Mesa at Orange Coast College. Make sure you select the right process and that you understand the benefits and risks of each. Collaborative, mediation, and cooperative process can keep your case focused on solutions and out of the costly contested arena of litigation, unless it is the wrong process for you and your situation.

    I hope this information is helpful to you.

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  • My wife has filed for a divorce. do I need an attorney?

    There was no prenuptial agreement signed before we got married or afterwards. She sold the house, and bought another house but in her daughter's name, what should I do?

    Diana’s Answer

    You do have a number of options on how to proceed. If community assets and/or interests are being sold or transferred, you will need to act quickly. If she put the property for sale, or sold it, after having filed the petition, she may have violated the standard temporary restraining orders that are found on page 2 of your summons. Either way, if you had any legal interest in what has been sold or transferred, you will need to take steps to secure the proceeds as they relate to your legal interest, if any.

    That being said, you should speak with a lawyer, maybe several lawyers, to determine what your next steps should be. You can retain litigation counsel (someone who will appear at hearings and try the case). This person can take steps to secure the proceeds from the sale if there is a community interest under California law. Litigation tends to be the most expensive process option, but it has many benefits when there is one spouse taking such unilateral actions and/or violating the standard temporary restraining orders. Be ready to pay a hefty deposit and for it to go fast.

    You can also hire a lawyer on a limited scope basis. This means that you are not hiring them for the entire case but, rather, for a specific part of your case: to appear at one hearing, to advise you in negotiating a resolution, or some other limited function. This tends to have the benefit of being less expensive than hiring full litigation counsel. But the risk is if your spouse is not cooperative, your legal interests may not be protected.

    Another approach is to work with a single lawyer who acts as a neutral mediator. This person would facilitate a discussion between you and your spouse to help you reach agreements on all the necessary items (support, division of assets and debts, and the like). This tends to be one of the least expensive process options and tends to be a faster way of completing the divorce. But, if you are not able to reach agreements, or if one spouse is not cooperative, it can result in costly delays. You need to make sure that Mediation is a productive process for you both - are you both able to negotiate on your own behalf, do you both have enough information to make good decisions, or do you need your legal advisor to assist you.

    Another option is to employ a Collaborative process. While more expensive than mediation, this tends to be a better and more efficient process for high conflict cases. In this process you are both working with mental health professionals who help manage the emotions and improve the communication; a financial professional who educates you both on the financial picture today, create realistic financial goals, and educates you on tax implications of possible options for resolution; a collaborative trained lawyer (each of you has your own lawyer) who educates you on the law, creating options for resolution that meet both your goals, needs, and concerns, and prepares your for the negotiations.

    Again, you have many options, each with it's own benefits and risks. Finding the option that will most likely meet your needs and address the challenges you face is going to be key. I would strongly suggest you attend a Divorce Options Workshop for more information. There is a program through Orange Coast College on October 20. Google the college and search Divorce Options. You will need to register through the college.

    I hope this is helpful to you. Good luck.

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  • What do I need to do to get the default to stand?

    I filed for default on the 31st day. Later that afternoon my spouse filed a response ( Fl-120 only) asking for spousal support (based on previous leases), child support, and primary custody, division of property TBD and requested mediation to set ...

    Diana’s Answer

    Assuming the court entered the default before the response was filed (it doesn't sound like it was), the default will be set aside - the laws offers 6 months in which to do so, without showing any explanation for responding late. If you attempt to fight this, you could be ordered to pay her legal fees in making the request.

    You really should consult a lawyer to review your financial information and help you understand how child and spousal support work, as well as creating a parenting plan that makes sense for your child, you, and the other parent. Out-of-court resolution processes, such as mediation and Collaboration, tend be faster and less expensive (in terms of money) ways to resolve these challenging issues. But they only work if both spouses are willing, able, and motivated to cooperate and participate.

    As to your specific question, however, the default WILL NOT stand, based on the information you have shared here. Your best bet is to either move forward in a contested (fighting in court) process, or try to resolve in an out-of-court process. Either way, I strongly encourage you to seek legal counsel.

    Although it is probably not the answer you were hoping for, I do hope this information is helpful to you.

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  • I have a question for a divorce attorney in California.

    My husband and I are ending a long term marriage (over 30 yrs). I'll need temporary spousal support during the divorce process but I did not file for it right away. If I file for it now is it retroactive to the date of separation or the date of ...

    Diana’s Answer

    If you are not in agreement on this, the court will NOT make it retroactive to a date prior to the filing/ Request For Orders for spousal support. You have more complicated issues if you have been separated for quite some time and he has been paying community obligations after that; You could end up owing him sums for using his separate property income towards obligations for which you are both responsible. The court does have tools for balancing such situations by offsetting with the amount that could have been ordered in spousal support. BUT, since spousal support must be formally requested to start any retroactivity, this will likely not happen in your case.

    On the other hand, you and your husband can craft any agreements you wish in an out-of-court process. I would still strongly recommend that you file immediately so as not to, albeit unintentionally, waive further legal interests. And if there is a chance that he would agree to waive reimbursement of certain joint debts he has paid and/or pay retroactive support, that may be a better outcome for you.

    You should definitely consult an attorney on your specific situation. Here, we can only speak generally.

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  • My husband and I are separated, live separately, and have other kids. How fast can we get an uncontested divorce?

    My husband has 4 kids total, 1 with me. We have lived separately for 8 years. We have agreed to all divorce issues. I will have full legal custody of our 13 year old. Big issue is, I am 4 months pregnant and engaged. What is our fastest option to ...

    Diana’s Answer

    If you travel somewhere else to divorce, you will have to meet those jurisdiction requirements. In California, you must have lived in the state for the 6 months prior to filing, and in the county in which you file the 3 months prior to filing.

    If you file in California, the fastest you could be legally divorced (single and able to re-marry) is 6 months and 1 day from the date the Responding party is properly served or files their response, whichever happens first. If you both agree on everything, you may want to talk with a lawyer who will take the case on a limited scope basis and just help your prepare the paperwork.

    I hope this is helpful.

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  • Questions about Location to use when served with divorce petiton?

    I am expecting to be served w/a divorce petition from my spouse. However, l've moved out and l don't want my spouse to know where l live. What other proper locations to use so that l can be served and respond? Can l use my old address l shared w/m...

    Diana’s Answer

    Service can take place anywhere: work, home, church, school, friends house. It can also be done by mail if you agree to accept by mail (an additional court form must be prepared, signed, and dated). When you file your response papers, you will need to include an address so that the court can send you information and notices. If you are working with an attorney, they will use their own address. But they will need to substitute out and eventually notify the court of your address for any future communications. You may want to consider getting a P.O. Box address if this remains a concern. I wouldn't use the old address since the court will continue to send notices there that you may, or may not, receive in a timely manner. You should go to the post office and forward all mail in your name. Again, a P.O. Box may be the best option for now.

    I hope this is helpful to you. Given your concerns about keeping your residence address private, you may also want to consider some out-of-court options to completing your divorce. I've included some helpful links so that you can start that research to decide if these processes are appropriate for your situation.

    Good luck.

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  • If my divorce was filed 18 months ago and we have trial this month will it be final that day since we are seeing a judge?

    All issues are resolved.. From my understand this trial is just to dissolve the marriage.

    Diana’s Answer

    It really depends on your judge. Judge Jackson Lucky is the presiding judge. I volunteer as a mediator for him and he is very supportive of mediated agreements. As a result, once an agreement is reached, Judge Lucky will, in fact, "take status" (declare the parties divorced) that same day, so long as the 6 month period from date of service of the divorce papers on the respondent have passed. I'm not sure if judge Lucky, or any other judge in Riverside, does this immediately after trial. Most times, Judges will tell the parties that they will receive their papers in the mail, and they leave it at that. You will, very likely, have to wait until you receive the papers in the mail. The primary reason is that the judges simply do not have the time - they typically have 30+ cases on their calendar on any given day. My suggestion is that you take a day and go watch the trials being held before your judge. It will give you a really good, practical, idea of what the judge is like, and how it all plays out.

    I have attached some links that may be helpful to you. Remember, if you do reach agreements, you may be able to get your status taken that day. If the court offers you mediation just before your trial date, that is a great opportunity to be done and NOT have to return for trial.

    I hope this information is helpful to you. I know this is incredibly confusing and stressful. And, as with all challenges, this too shall pass. Good luck.

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  • Request for order hearing

    My ex parte was denied, they set a hearing date and mediation. The Mediation did not reach an agreement. Whats exactly going to happen at the RFO hearing. Orders be made until trial. Just listen/present your case? What happens next, trial, ano...

    Diana’s Answer

    This is like a mini trial to resolve the requests made in the RFO. The person making the requests will have to show the judge sufficient relevant and admissible evidence to prove the basis for the request, and will have to show the judge under which of the 4,000+ rules/statutes, that may apply, the judge is permitted to grant the request. The person who is not making the requests MUST file and serve their response within the statutory time period prior to the hearing (I believe it is 5 days, but as I only do out-of-court resolutions, since 2007 now, you will need to confirm this with litigation counsel).

    Remember, the judge has, very likely, over 30 cases on calendar that day. In most cases, the judge may not have even read the papers prior to sitting on the bench, unless there are allegations of domestic violence, and it is unlikely that you will be given what you feel is sufficient time to present your case (or defend it). Recent studies have shown that for many RFOs, the average time before the judge is about 6 minutes. That does NOT mean this will be your situation - I have seen some that go much longer, sometimes, several days. The Judge will ask for a time estimate if the matter appears complex AND if the parties have counsel. If the parties represent themselves, your more likely going to be within the 6 minute time frame (or thereabout).

    Many times, on the docket posted outside the courtroom, the judge will post his/her tentative decision, meaning that these are the orders the judge is going to make unless there is compelling evidence/testimony, different from what was put into the moving papers, during the RFO hearing itself. It is unlikely the judge will deviate from their tentative orders.

    I have attached a link that may provide some additional insight. My suggestion to you would be to take a day before your scheduled RFO and go to that department (where your RFO is scheduled) and watch how your judge handles RFOs. If you and your spouse can reach agreements before the RFO, the one thing judge's love to hear is "Your honor, we have reached agreements and appreciate your consideration and time." That's one of 30+ cases s/he does not have to address.

    Also, just as an additional option, you may want to consider why it is that you and your spouse did not resolve in mediation. Perhaps too much blame, pain, anger, unrealistic expectations??? An option that can resolve these common challenges could be co-mediation or a collaborative process. In Collaborative, there is a lawyer for each spouse keeping expectations realistic. There are mental health professionals working through the pain, anger, and blame, and helping manage the communication. It is a financial investment and can yield significant progress, without having to waste time in court. Co-mediation works much the same way, but the parties are working, typically, without the benefit of their own attorney keeping them realistic - the attorney acts as a neutral mediator, representing NEITHER party, and educating about the law in general terms. You can still bring in the mental health professionals. In both processes, we can also use a financial neutral, again, to keep perspectives in check and the focus on reality. Just something to think about.

    I hope this response was useful to you. Please consider the links I have attached - I think you will find much more information that can help you through this transition.

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  • My wife and I are dissolving our marriage. Her lawyer recently sent me an Agreement for Judgement, are the terms enforceable?

    My wife filed for divorce and never demanded anything in the petition/complaint (beyond dissolution of the marriage). She recently retained counsel and filed an amended petition, but there are no demands there either. The terms look identical (jus...

    Diana’s Answer

    It sounds like the attorney is trying to come to an out-of-court settlement with you. If you have not filed a response, you need to either start negotiations with the attorney and get an agreement to hold off on filing the default against you while you do so, or you need to file a response right away so that you avoid additional work related to setting aside a default. Based on the information you shared, it does not sound like he has any enforceable orders in place at this time.

    The steps you take at this point can either cost you dearly or help you resolve efficiently. You should have someone advising you, legally, so that you are making informed decisions. What you do not know can have serious consequences.

    There are many attorneys who will work on a "limited scope" basis. This means you can be represented for the entire process, including court hearings, trial, etc., or just for specific legal tasks, such as an out-of-court negotiation, or a one time appearance. There are other options such as mediation and/or collaboration. You would be best served by letting the attorney know that you are in the process of getting some legal advice and would like some time before you respond. Make sure you get any promises to hold off on a request to enter default in writing.

    I hope this is helpful.

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