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Diana Lucia Martinez

Diana Martinez’s Answers

470 total

  • 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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  • Please can you answer this question regarding a marriage separation?

    My friend is trying to get out of her marriage. She has been faced with a difficult dilemma and I would be grateful for your assistance with this matter. This is not a particularly happy marriage and she has had to suffer greatly. Her hus...

    Diana’s Answer

    Before doing anything, your friend needs to gather some information. She should speak with an attorney to better understanding the potential risks/consequences of such a "loan", and what options she may have to make certain the funds are repaid. There are also potential risks of taking out another $30,000 while they are still married, without any binding orders/agreements in place. She also needs to gather information about California laws governing spousal support. Absent this, she may cause herself serious legal harm later on.

    I strongly recommend that she contact an attorney directly, give him/her the information and documents necessary to be able to properly and accurately advise her. The information provided here is not sufficient for any kind of reliable response. It's kind of like telling a doctor "my chest feels tight" and requesting a diagnosis from that; too many unknowns.

    I hope this helps.

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  • If my husband is buying me out of our house, is the value based on current appraisal, or value on the day I moved out?

    He thinks he should not pay me the equity accrued since I moved out two years ago. Although I had the lower salary, I have paid solely for my own rental house and received no child support or spousal support. He maintains that HE should benefi...

    Diana’s Answer

    This is an example of why you should be careful relying on information given on this site, without full investigation into the facts. My colleagues are correct in their answers... BUT it may not apply to your case exactly. Here is why: Much depends on what type of asset this is, if there were any prior agreements regarding this asset, how title is held, how, if at all, title was transferred, how the asset was purchased, with what funds, etc, etc, etc. There are so many legal intricacies in your situation, that, unless you have a qualified, experienced, attorney review them, you could end up going to trial and being sorely disappointed.

    This question is also a perfect example of "be careful what you ask for". Along with the equity, there may be resulting liability that you had not anticipated. As my colleague correctly points out, both spouses are responsible for maintaining the community (assets and obligations). You moved out and it appears, from the information you provided, that your spouse continued to pay the mortgage on the house. IF you were also obligated on that debt, either by contract, agreement, or in law, then you could be indebted to your spouse for half of those payments. Depending on that mortgage amount, over two years, that could be a significant amount of money. It could be offset by your interest in the equity, or it could be offset by any spousal support order the court may issue (don't know if that applies in your case).
    As to valuation date, this type of asset is valued as of the date closest to trial. Again, how this asset was purchased, when it was purchased, how title is held, and other factors will come into play on that. There are too many unknowns to be able to accurately respond to your question.

    You said that your spouse is currently trying to refinance - have you signed a quit claim? Have you been ordered, or are you voluntarily, cooperating with the refi? Or are you not on title at all? All of these questions will factor in to an accurate assessment of your situation.

    The best recommendation for you is to see an attorney and have them assess all of the relevant facts so that you don't move forward, unprepared, and, quite possibly, to your extreme detriment. The mistakes you make at the beginning could be very expensive to repair, if they can be repaired at all, later on.

    I hope this is helpful to you. Good luck.

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  • Does the 6 month waiting period restart when filing an amended FL100?

    We initially started a divorce process in San Bernardino County in 2001, reconciled back then, and 12 years later are now going through with an uncontested divorce with an agreement. Oddly, the old case was still open and the court has allowed us...

    Diana’s Answer

    The 6 month period will start from the date you spouse is properly served with the amended petition or the date your spouse responds to the amended petition. To be clear, the 6 month period has to do only with the earliest date by which you can be deemed legally divorced (i.e, single for purposes of remarriage). If you have an agreement, and this will not be a contested divorce (court battles), you should be able to complete your process in a matter of weeks or months, rather than years. Once you have a signed judgment (signed by the court) and the 6 months have passed (from the date your spouse was served with the new petition or responds to the new petition), you will be divorced and free to remarry. That is the significance of the 6 month period.

    My suggestion would be that you have an attorney prepare all of your documents (many of us do this on a flat rate, limited scope basis) so that you get everything properly done and do not have prolong it any further.

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

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  • I need help in figuring out what is going on with my divorce.

    My friend filed our divorce on Dec 12 2012 with a Separation agreement stating we do not want anything from each other but this divorce., we have no kids, no debt, no nothing. On May 23rd she texted me and told me that the court rejected the judge...

    Diana’s Answer

    Go to the courthouse, get a copy of your file, take it to a licensed attorney, and they will be able to help you complete the process. Many attorneys will do this for on a "limited scope" or "unbundled" basis, and may be able to do it for a flat or reduced fee - we don't know until we know what happened in your case.

    Good luck.

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  • What are the advantage of filing for legal separation instead of divorce?

    I think my wife is thinking about divorcing me and I want to protect my assets she also has a lot of debt. Is it better than I file for divorce or legal separation?

    Diana’s Answer

    • Selected as best answer

    The main difference between filing for legal separation and filing for divorce is that at the end of a legal separation, you are still married. If either of you, at a later time, wishes to remarry, you will have to go through the process again (filing fees, same forms, same disclosures, same judgment documents) to divorce.

    That having been said, people will select a legal separation over a divorce for a number of reasons. Financially, there is no real difference: community property stays community property, community debts, stay community debts. You can allocate/distribute property and debts through your separation decree or your divorce decree. Your date of separation (the date one of you tells the other you are done with the marriage) is the cut off for community assets and debts. People will select separation, often, because of:
    - religious reasons
    - cultural reasons
    - health insurance (although not as common any more, now that most insurance companies will not cover separated non-member spouse anymore)
    - new county of residence (filing spouse does not meet the jurisdictional requirements to file for divorce in that county, but intends to live there moving forward)
    - may provide a smoother process that allows the spouse who is not ready for divorce to get used to the idea, in a non-combative way.
    There may be other reasons, but these are the most common that I have seen. Again, it will not change the "character" of your current assets and debts as either community or separate. Your date of separation will determine future community assets and debts.

    I hope this is helpful to you. Good luck.

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