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Diana Lucia Martinez

Diana Martinez’s Answers

470 total


  • Can a divorce change from contested to uncontested?

    My wife previously contested our divorce over one issue. The divorce has not gone to trial yet, and she no longer wishes to contest it Is there way to change the filing? If not, will a judge issue a default if she just doesn't show up to court?

    Diana’s Answer

    If a response has been filed, you cannot request a default. Your best option would be to prepare a written agreement in the form of a stipulated judgment or marital settlement agreement, along with all of the proper judgment forms, sign everything and file it. If you are not able to agree on everything, set it for a trial date. If she does not appear, the court will enter judgment without her input.

    I strongly recommend that you work with an attorney, perhaps a neutral (does not represent either of you), or an attorney mediator, who can help the two of you reach agreement on all necessary items AND draft the necessary documents properly so that everything goes smoothly. There are many attorneys who do this type of "Limited scope" work at very reasonable rates; sometimes, even for a flat fee. I've included some links for additional information and assistance in finding such attorney/mediator.

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

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  • I was just sreved divorce papers we are not fighting over anything so do i need to respond to them ??

    we have already seperated and split the property so do i need to respond ??

    Diana’s Answer

    You have 30 days from proper service (in person by someone other than your spouse or by mail if you signed an acknowledgement of receipt - add 5 days). If you do not respond during that time, your spouse can request a default against you and, basically, get whatever s/he requested in the petition.

    There are benefits and risks to proceeding by default judgment. A benefit is that you save on the second filing fee ($435 in most counties). Another benefit is that the respondent does not have to comply with the normal disclosure requirements. The risks include no voice in the process, should s/he default against you with an agreement, and, if you ever need to modify your divorce decree, you will have to pay the then current filing fee (it only goes up). You can sign a stipulated judgment (your signature would have to be notarized) and proceed by default judgment, but you will have to wait for the 30 days to expire (from date you were properly served) to file it. If you have a signed agreement (I would suggest you sign two originals and each keep one), then you should be fine. But you need to make sure that your spouse completes all required disclosures (including separate and community property) and that you have the necessary language in your agreement to make it enforceable in the event your spouse changes his/her mind. When my clients wish to proceed in this way, I usually get a signed agreement that, since they are working on a complete resolution of all issue and plan to proceed by default judgment, the petitioner will not file a request for entry of default without first giving 30 days written notice to the respondent of such intention.

    Remember, this forum is not intended as legal advice. Your situation is unique and the information you provide is insufficient for a proper legal analysis. This information is general in nature and should not be relied upon as applicable to your case - this is not a substitute for legal advice. You should consult an attorney who can properly analyze your case and advise you.

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  • If I want to bring evidence to court on the day of the hearing, Do I have to file it first with the court or can I just bring it

    same day then hand it to the court and the other party?

    Diana’s Answer

    Unless you know California Family Law and the California Evidence Code, I suggest you retain an attorney for your hearing. This is a technical matter that, if not done properly, can result in your evidence being ignored completely. The judge MUST follow the law and cannot help you, or make exceptions because you are not an attorney.

    I was recently in Riverside Superior Court for Mediation day. The judge addressing the mediation participants told them about a case where the unrepresented husband had documents that supposedly proved he was owed $190,000. He was unable to authenticate/lay the foundation as per the evidence code. As a result, the judge COULD NOT even look at the documents, let alone consider them in making his final decision.

    I don't know what the issue for your hearing is, but unless you are willing to gamble a loss, I would suggest that you retain counsel, even if only for the purpose of this hearing. Once the errors are made, there is no reset button.

    Good luck.

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  • I was recently divorced through the Superior Court of California Placer County and my ex had an attorney and I did not.

    Needless to say, I did not end up with an equitable division of our assets. My concern is with the language in the "Order after Hearing" that was filed by his attorney. The attorney wrote that "All arrears are set at zero". I need direction on how...

    Diana’s Answer

    Unfortunately, you are already experiencing the consequences of not have an attorney. And, now, you are continuing that same path, expecting a different result. Unless you have a full understanding of California Family Law and California Evidence Code, you are going to have the same results as you experienced previously. There are a number of places that provide free/low cost legal services for those who qualify. For those who do not, it is a choice to either hire an attorney or not. The decision to not hire an attorney can end up costing you more than it would have to retain qualified counsel.

    I agree with my learned colleagues: there is not enough information to give you an accurate response - it's like asking a Doctor to diagnose you without allowing him/her to examine you first. This forum is for general information. Your situation is complex and requires focused legal examination.

    Get an attorney before you create more regrets.

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  • I may be getting divorced and want to protect the money I put away for my kids

    I have $100K that I have been saving for years for my kids. I may be getting divorced and want to make sure my husband doesn't try to take half of that since it has always been designated as the kids money for college or other if they didn't need ...

    Diana’s Answer

    It sounds like you have some serious financial concerns in terms of the children's college savings and your husband's employment impacting your ability maintain your lifestyle and that of your children's. These are challenging concerns that require careful consideration and planning. My guess is that your husband's unemployment has only added to the already underlying stresses. There is just so much going on in your family right now. My colleague is absolutely correct: if you and your husband can reach an agreement on the college fund, put it into an appropriate investment account - for that purpose - if it is not already in one. Once a divorce is initiated, one or both of you will go into "survival" fear mode - the "fight, flight, or freeze" response. Your husband, currently unemployed, will no longer have the "safety" of your income; what do YOU think he's going to do? What would you do if the situation were reversed?

    You may want to sit down and figure out what your goals are for the divorce and your future: financial, family relationships, children's education, etc. Then, I would strongly recommend that research different options for proceeding with divorce, if that is the intention. I've included some links below to help you with your research. Mediation and collaborative divorce tend to be more solutions-focused processes than litigation (divorce battles in court), which is a "win/lose" battle field. You still need to understand the law (community property/separate property for example), but that is only one possible option. The law is the default. When negotiating in mediation/collaboration, your creativity is the limit - you make all the decisions based on your goals and the needs of your family. Take a look. Then share that information with your husband. Your divorce doesn't have to deplete your children's college fund.

    I hope this is helpful to you.

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  • In california divorce papers on line 9 h are the words property rights to be determined. should i check this box

    can you help

    Diana’s Answer

    These forms are technical. It goes way beyond checking the right box. Failure to understand these forms can result in a waiver of rights. I would strongly recommend that you have an attorney review the forms with you, and properly advise you. Many attorneys will assist in this limited capacity.

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  • If I file for legal separation in california can my spouse immediately file for divorce and be in control of that?

    I recently moved 4 months ago from my wife who cheated on me several times, had a child, and stole from me. I would like to file for legal separation, to have it legal quickly, and then I will file for divorce. The problem is I now live 4 hours aw...

    Diana’s Answer

    Your concerns are valid. Here's the info on jurisdiction (where to file). Either party may file in the jurisdiction in which they reside. To file in California, you must have been a resident of the state for the precious 6 months and of the county in which you file for the last three consecutive months before filing. Based on the information you provided, it sounds like you may qualify for divorce filing in the county I which you currently reside. For legal separation, this requirement does not apply, but your side could change it to a divorce and move to the proper county. However, your wife could request a more convenient forum, but success there may be slim... I don't have enough information there.

    You do have another option: if you both agree to an out-of-court settlement process, neither of you would have to go to court at all. You can resolve everything through your mediator(s)/collaborative team, the attorneys can prepare and file all papers, and neither of you need set foot in court.

    Hope this is helpful to you.

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  • My husband filed an ex parte againste in seperation papers he had his lawyer file. How can he remove it against me?

    My husband and both agree that we want mediators and I want to know how he can remove the ex parte against me without using lawyers?

    Diana’s Answer

    If he requested the ex-parte, he can dismiss it as well. If no one showed up, the court will dismiss it. If you requested the ex-parte and are representing yourself, and agreed with your husband to attend mediation, it is possible that your husband's attorney shared this information with the court clerk who may have taken this as an instruction to dismiss the ex-parte. There are many more possibilities. Your question does not provide sufficient information.

    If you have agreed to mediation, the court will hold off on any related hearings pending the results of your mediation - but this requires someone to inform the court of your agreement to mediate. If there is an urgent/emergency situation (which prompted the requested ex-parte orders), that information should be raised with the mediator right away so that it can be addressed immediately.

    I hope this information is helpful.

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  • Once divorce papers are filed can my ex legally come into the house when I am not there and take whatever he wants?

    Divorce papers were filed on the 17th and on the 24th my ex gathered a group of friends and loaded up everything he felt he was entitled to while I was at work. The divorce papers indicated specific things like cars, RV, motorcycles and division ...

    Diana’s Answer

    You really should not wait. My colleague's recommendation is sound. Your first mistake was not changing the locks. If you did not inventory everything prior to your ex invading your home, that was your second mistake. The biggest mistake you can make is continuing to think that you can handle all aspects of this divorce on your own and get good results. The reality is that he has as much right to community assets as you do. He has as much right to the family residence as you do. Until such time as proper requests and orders are made, that does not change. You've already felt the invasion and the loss by not taking proper steps. You need to get some help. If cost is an issue, there are a number of attorneys who work on a limited scope basis. Mediation and collaborative processes are also viable options for limiting legal fees and getting faster results than you would in court. Do your research, and stop creating regrets; woulda, shoulda, coulda will not get you what you want or need.

    Good luck.

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  • The marriage lasted 8 years, we currently filed dissolution of marriage. No kids ever involved or any community property.

    The court ordered spousal support to the wife but no amount was specified. For how long do I have to pay spousal support. Or how long does she have to file a claim against me?

    Diana’s Answer

    There is so much that is unknown that would affect an accurate answer to your questions. There are two types of spousal support: "Temporary" and "Permanent". Temporary spousal support is what is ordered while the divorce process is ongoing. The goal is to try, as much as possible, to maintain the status quo so that neither spouse is disadvantaged by the separation. It is calculated using a computer program (XSpouse, or Dissomaster tend to be the most common used by the courts). You can go to any local law library or the court house and calculate it for yourself. Permanent is the court's order at the end of your case. It cannot be based on any computer formula. It must be based on Family Code Section 4320. You can google this and read the controlling factors for yourself.

    The fact that the court "ordered spousal support to the wife but no amount was specified" may mean that the court did not deny her request but left it for later determination, or "reserved" that issue. That means, if the court, upon review of proper information and documents, deems that support is warranted, the court can 1) order a specific amount as retroactive, to the date she first requested it, 2) order it to start as of a later date, or 3) order it offset to any sums she may owe you under the law. There a many more possibilities. There is just not enough information to do any kind of proper analysis here.

    My suggestion would be that you seek counsel, even if only on this issue. If there are no children and no community property, this matter may be fairly quickly resolved either through mediation or attorney negotiation. You need to understand both of these processes and be educated on the law and your individual goals to be able to make an informed decisions and be done with this case.

    I hope this information is helpful to you.

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