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Diana Lucia Martinez

Diana Martinez’s Answers

561 total

  • Will CAL Pers pay survivor benefits to a non member spouse after a divorce if ordered by the court?

    My husband wants to end our marriage of 40 years and he wants to provide for me with survivor benefits from PERS if he were to die first even if it means remaining legally married. As I understand it Cal Pers does not pay survivor benefits to divo...

    Diana’s Answer

    My colleague is correct. And, if the pension is not yet in pay out status, you will want to consider what the survivor benefit does to the amount paid out - if there is a big age difference, there could be a significant reduction. And I cannot stress enough making sure you work with a reputable lawyer who specializes in Qualified Domestic Relations Order - if there is an error, if it is not properly done, this is not one of this situations that can be corrected later on.

    Good luck

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  • How to do a Summary Divorce

    I have less than 5 years of marriage, no children, no assets. We want to do it by mutual agreement My question is how to do a summary divorce, forms, fees, etc. We live in Los Angeles, CA area Thank you

    Diana’s Answer

    The process is quite simple. If you go to the court house, you can request the summary form. The court also has the necessary forms online:
    You will both file a joint petition, complete the financial disclosures, and they even have a sample agreement you can use. The court fee is $435.

    It is always recommended that you have a lawyer assist you - the completion of the forms, the specific information required, filing the forms property, etc, can be challenging and confusing for many people. It is a wise investment to make sure it is done correctly. Many lawyers charge a between a few hundred dollars and $1,000 for a summary dissolution - it really is the simplest way to divorce... if you qualify.

    I hope this is helpful to you. Good luck.

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  • How can i get child custody and divorce.

    My ex was doing really bad she always was at the clubs or with different guys in her house wile the kids were in there she was always drinking and on datting apps dheusedto disappear for 3 days and wont answer her phone,wile i was taking care of t...

    Diana’s Answer

    Your options are quite limited if she is not responding/cooperating. Whether you need to file for divorce (if you were married) or parentage (if you were not married), getting her served in Mexico will probably be the first big challenge you will face in the legal process. I would strongly recommend that you consult with a lawyer who can assist in this. Once she is served, if she contacts you, that may be the opportunity to attempt to resolve the mutual agreements. If you are successful in this, the rest of the process is fairly simple (from a legal perspective) in terms of disclosing required financial information and filing the correct judgment documents. If you are not able to co-create agreements, the process is a bit more complicated, requiring notices, disclosures, proofs of service of same, hearings, and, ultimately, either a default judgment or a trial, depending on how involved she is in the contested hearing. Ultimately, it will be up to the judge to grant your requests or order something different. The Judge will consider recent history (who has taken care of the children the majority of the time) and the safety and wellbeing of the children. The goal is that children have equal access to both parents, and that they have a suitable living environment and are safe. Note, however, that if Mom every wants to reestablish her relationship with the children, a court can, at any time in the future, order reunification therapy.

    I strongly encourage you to seek the assistance and counsel of a lawyer experienced in family law. This is not a situation where you can afford to make a mistake.

    Good luck.

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  • I want to divorce my wife and need to know where to start?

    Too much arguing in front of kids, tried therapy, counseling, etc. Im just tired of it. I have one child who is mine and the other a stepson. Wife seems too unreasonable and I pay the bills and her way for everthing and am underappreciated. We...

    Diana’s Answer

    The way you start your divorce process will set the tone throughout. recognize that there will be a great deal of fear, distrust, anger, sorrow, and a tornado of emotions happening for both of you, and your children. Before you make any unilateral decisions, consider how it would be experienced by your spouse. If you were the stay at home parent, no income beyond child support for one child, and your working spouse, upon whom you rely, serves you with divorce papers and moves out with one child. You absolutely need to take steps to reduce the conflict and allow everyone to prepare for the transition.

    This is the key: prepare. Think about how you envision your transition in a best case scenario. Identify how you can make that happen. Divorce does not HAVE to destroy. When actions are based on emotion (anger, fear, sense of entitlement), made unilaterally, and/or to the detriment of the other spouse, you better budget and prepare for a long, expensive divorce.

    I always recommend researching not only the process (legal steps) but also your options and suitability for doing it in an uncontested way - this tends to be healthier for all involved, and far less expensive. Ginita Wall does a Second Saturday Workshop and there are a number of Divorce Options workshops that provide this information in/around your community. Take advantage of these, and invite your wife to attend one as well.

    As far as the legal steps:
    1. File Petition Documents (the court will hand you the packet, but I recommend you have a lawyer assist you with all legal forms);
    2. Complete financial disclosures - this will require that you gather financial documents such as tax returns, pay stubs, bank statements, credit card statements, and much much more;
    3. File and serve petition documents and financial disclosures - you may also want to consider preparing a proposed judgment and give it to your spouse to get her feedback - parties who co-created their own agreements tend to spend less time, if any, requesting modifications later on (oh yeah, even when the divorce is finalized, people still go back to fight in court);
    4. File your judgment documents (there are quite a few, and if anything is missing, the judgment won't even make it in front of a judge, since the judgment clerk will reject it as incomplete);
    If you are not able to co-create agreements:
    4. Request your trial date and go to trial.

    In between each of these steps, if you are in a contested case, there will, likely, be request for orders (hearings to set temporary orders for things like support, attorney fees, child custody and visitation) and discovery (depositions, subpoenas, interrogatories). This is a huge expense in a contested divorce.

    While you research your information to determine how best to proceed, you may want to sit down with your wife, preferably when neither of you is tired, when the kids are not around, some place comfortable, and plan out how best to manage your financial and child responsibilities while you transition through this uncoupling. You can always locate a local therapist who practices in collaborative divorce as a communications coach or a child specialist as a possible safe environment to have that discussion. They can facilitate the discussion, managing the emotions and keeping you both focused. There is a wonderful collaborative practice group in San Diego that can probably provide you with some excellent resources. Those professionals also tend to be trained in mediation.

    I hope this help. Good luck.

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  • Move forward with divorce

    Back in November I hired a mediator for the both of us, he helped me ( petitioner )fill out the petition and submit it to the courts. For the last 6-7 myself, the mediator and my ex Have been going back and forth working out an arrangement f...

    Diana’s Answer

    Did anyone, other than you, hand your spouse the filed petition documents? Some mediators do this, sometimes they have their staff serve by mail (which requires an addition form signed by your spouse). Either way, if it was done by personal delivery, you just need to have the person who served complete a proof of service, and indicate the date they personally handed the documents to your spouse.

    If he was never served, or was served by mail but did not accept service (by signing the additional form), you will have get your spouse served, or s/he can just file the response. Response documents are not filed in every case. Some cases proceed by default, and some of those include agreements between the parties that are binding and enforceable.

    The effect of service of the petition documents is that it starts the clock for the earliest date you can be divorced: 6 months and 1 day from the date the respondent was served. This has nothing to do with the response having been filed. If the response is filed and there is no proof of service of petition documents, then that 6 month clock starts when the response is filed.

    Once your spouse is served, s/he has 30 days to file a response. If s/he does not, you can request that the court enter default. Make sure your petition documents contain everything you want the court to order (support, parenting time, assets, debts, etc). If it does not, you will have to amend, serve, and wait another 30 days from service so the court has everything it needs to be able to process your divorce. This includes the required financial disclosures.

    If your spouse does respond, you can request a hearing to resolve the parenting plan. The court will require you to attend conciliation court (mediation for the topic of child issues only), before you can see the judge. Alternatively, you can seek out another mediator or move into a collaborative divorce process.

    I have written quite extensively about these two processes. In a nutshell, mediation is handled differently by different professionals. My suggestion if you chose to give mediation a 2d chance is that you seek a co-mediation: two professionals, a lawyer mediator and a child specialist mediator. The latter is extremely useful, in my experience, in helping parents co-create parenting plans that work for them and the children. Because there are legal implications, it's good to have a lawyer mediator working with the child specialist, as well as your own lawyers providing you with individual legal counsel.

    In a collaborative process, each parent has his and her own lawyers who commit in writing to help them resolve without going to court. Each parent also has a coach working with them (either one shared coach or two individual coaches) to manage the communication and emotions. The parents share a financial neutral professional to help with financial education, co-creation of budgets and financial goals, and a better understanding of tax implications of possible options for resolution. The lawyers are ever present for guidance, advice, brainstorming options for resolution, and drafting of agreements and court documents. The lawyers are also very useful when it comes to setting realistic expectations when the discussions become more challenging. If one parent is convinced he/she will get full custody in court, his/her lawyer can walk that parent through what would be required to succeed on that request and what a realistic outcome would be given the facts of his/her case.

    You don't have to go thermal in court over a custody battle. I would strongly suggest you speak with lawyers experienced in both mediation and collaborative practice, as well as those who handle contested cases so that you have a better feel and understanding of what is required, financially and in terms of your time and the impact to your children. You can also attend a divorce options workshop where you can meet professional who do this type of work. Best of luck.

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  • What are tax implications for business/divorce settlement?

    Due to receive a sum of $$ from business value in divorce settlement, wanting to know if I will have to pay taxes on it or not if its a prop split. If I'm correct it doesn't count as alimony income, I just don't want to be screwed in the end, not ...

    Diana’s Answer

    The tax implications, if any, really depends on your judgment and how this was identified. If it was identified as a property equalization, meaning one spouse is receiving a greater value of assets and is paying the other spouse an amount to equalize that imbalance, it is typically not a taxable event. However, if the payout is identified "as and for additional support", as a lump sum support and asset buyout, or something that links it to support, that would normally be taxed, unless your judgment specifies that it will not be taxable to you nor deductible to your ex. There are other circumstances that could make it taxable. Again, it depends on your judgment document.

    I would strongly recommend that you have a lawyer review your judgment so that you have a clear answer. A CPA should also be able to provide the information. Unfortunately, there may be very limited options, if any, if the deal has already been signed and entered.

    This really is both a tax and divorce question, but I recommend re-categorizing it to Divorce because it really does depend on the language in your judgment. You will likely get more input under the divorce category. But still check with your CPA as well.

    I hope this is helpful to you.

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  • Separation Date Question - Two Divorce Cases - Same Family

    Dear Legal Experts, In January 10 2014 - my ex-spouse filed for divorce, took kid and half-money without my knowledge. Took kid out of country with my knowledge, provided she will return at a date, but did not return for 6 months over that date...

    Diana’s Answer

    Your date of separation is the date one spouse communicated to the other that s/he wants out of the marriage and takes a step to live separate and apart. Clearly, when your spouse filed in 2014 and moved out, a date of separation was established. BUT, as happens in many cases, an effort to reconcile was made. Had the first case not been dismissed, there may have been a stronger (not strong) argument for the 2014 date. But the case was dismissed, you lived together again, and it wasn't until 6 months later that you filed for divorce. Whether you "truly" reconciled or not, is not the issue. In fact, your date of separation, practically speaking, isn't even the real issue, unless you're asking what date you should have put on your Petition. The real issue is not included in your statement.

    In divorce, date of separation is relevant for one reason and one reason alone: financial. Any asset/debts acquired or incurred from date of marriage to date of separation are community property (50/50 split unless otherwise agreed or a legal exception applies). A marriage is deemed "long term" if it lasted more than 10 years, in which case a court can order spousal support (if warranted) until either party dies, remarriage of the receiving spouse, or further order of the court - it can go on indefinitely); whereas in a marriage of less than 10 years, the judge can order support for half the duration of the marriage.

    I once mediated a case where the day before the parties came to see me, they had just completed a 3-day trial just on one issue: Date of Separation. In their case, they had a 2 year difference, during which substantial assets were acquired (bonus income, real property, retirement contributions), and it pushed them just over that 10 year mark. If something substantial has happened in the year between your first filing and your second, you may want to consider just how valuable a contested case would be to you based on what you would have to invest (legal fees, time lost from work, etc) and what you hope the court would order. Take a look at my blog entitled "The Imbalance in a California Divorce: When 50/50 Isn't Always Equal". It's not on point as far as the topic of date of separation, but it talks about balancing what you think you should get, with the financial costs of trying to get it.

    Going back to your question: the information you have provided seems to indicate that the more recent, 2015, date is your date of separation. However, there may be other facts/information that you did not include, that you may not even know are relevant, that could result in a different response. A Judge will consider what an objective person would have thought as to whether or not you were "separated". First off, the case law is very clear: you cannot be separated if you are living under the same roof. But beyond that, did you act like a couple or did you carry yourselves as separated: travel together, hold accounts, tighter, have dinner together on a regular basis, take your child to events as husband and wife. It sounds like you did give it another go. If so, the more recent date is your date of separation.

    I hope this helps clarify what is, very often, a confusing point. Miscommunications, change of heart, different perspectives, make it quite confusing. This, and the financial impact, make this topic an extremely contentious one in many cases. But, if you resolve all of your financial items (assets, debts, support), you can pick whatever date you want - so long as you both agree. In fact, you can even put in your judgment that you still disagree on the date of separation, that should it ever become an issue, the court has the jurisdiction to make orders on that date of separation, and that you want your financial agreements to be honored. Again, there are legal implications to everything and you really should consult a lawyer to asses your situation specifically.

    I hope this is helpful to you.

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  • How do correct my default divorce the judge is finalizing due to missing Fl-160 papers in my original petition from 2 years ago?

    The judge is finalizing my default divorce and allowed my spouse to deny the Fl-160 declarations submitted, as the judge sites there are no Fl-160 with my original petition, which makes no sense as the petition was filed with the declarations, I w...

    Diana’s Answer

    Many people think a divorce is simple - just check the boxes on some forms and pay the fees. Sadly, as you have learned, it's a bit more complex. And the frustration is not knowing what you don't know, in addition to the inefficiencies of the courts. Processing the correct paper work, making full and necessary disclosures, making sure you didn't inadvertently limit a judge's ability to make orders over certain items are some of the most common challenges people face, when they don't have legal counsel. It sounds like this latter error is what happened here. When you completed your petition for dissolution of marriage (FL-100), Sections 9 and 10 ask you to list all separate, community, and quasi community property. You may have checked the box that indicated all such items were listed in an attached property declaration (FL-160). The courts are an understaffed, insufficiently funded government office. They are not your lawyers or your advisors. In fact, by law, they can't be. They will not tell you if you made a mistake (unless it's blatant, such is misspelling your name on the caption). Things get lost, many staff are too busy and/or underpaid to care (although many are extremely helpful in my experience as well). For this reason, it is always recommended that you get a conformed copy of everything you file - this would be a file stamped (shows the date and courthouse) copy of your filing - you have to bring the extra copies yourself, the court clerk stamps the original and ALL copies so that you can take one with you as proof of filing. If you did get this, you will need to dig it out and show it to the judge. BUT THAT'S NOT ENOUGH in and of itself. You will also have to show the judge that the property declaration were all property served on your spouse. This is typically done by personal service with your petition, unless your spouse agreed to accept service by mail. If you served only the petition documents on your spouse (without the property declarations), you could have served the property declarations later by mail (after personal service of the petition documents). But, again, you would have to file a proof of service. IN ADDITION, there are preliminary declarations of disclosure that must be filed as well - only for the Petitioner in a default case, along with a waiver of Respondent's disclosures. Through service, the judge knows that you gave the Respondent sufficient notice of your requested asset and debt division, support requests, etc.

    All of this being said, you need to find your file stamped FL-160 AND your proof of service of this form on your spouse. The rest of your statement is very confusing. It sounds like what may be happening is a request to modify the default orders has been made by your spouse (perhaps), as it relates to community debts and/or support. If any debts were missed (not disclosed or allocated), the court retains the ability to make orders on those "omitted" items. And if in your request for entry of default spousal support was not requested terminated, even in a default case, an ex can go back in and request support.

    Divorce is often difficult, and not just on the emotional level. Without legal advice, the process can become more expensive than it otherwise would have been. I would strongly recommend that you speak with a reputable lawyer who can assist you in sorting this out.

    I hope this helps clear things up a bit, and that you are able to get some resolution that makes sense.

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  • Who's responsible for this credit card debt

    Been separated for almost 2 years now and as part of the debt/property settlement she wants me to pay for half of the CC debt. The card is under her name and I was not linked to it in any way and currently do not own/have property bought with...

    Diana’s Answer

    I have written some articles on this topic that you may want to review. The general answer is that any debts incurred, or assets acquired, between your date of marriage and your "date of separation" (legal term) are community property - belong to each spouse 50/50 absent certain exceptions (fraud, misuse of funds - again, must meet specific legal requirements). Your date of separation is the date one of you communicated to the other that you want out of the marriage AND takes an affirmative step to live separate and apart (moves out of the house). If the debts were incurred after date of separation AND were not to pay community obligations, they may very well be the separate obligation of the spouse who incurred the debt. Otherwise, they may be a joint debt that the law requires be split equally.

    In your divorce, you can co-create agreements that may offset the debts - you do not have to follow the law, if you agree on a division the is more valuable for each of you. But this does require agreements. Otherwise, you will each have to prove to the judge under which law, given the evidence, the judge is allowed to grant your request.

    I would strongly encourage you to have a lawyer review your documents so that you have more reliable information upon which to rely.

    I hope this is helpful to you.

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  • What is the average charge for a divorce attorney?

    Its a simple divorce. No custody battles, no splitting of assets or real estate. Joint equal custody and no alimony or child support needed. Just reviewed the form packet and seemed overwhelming. Wondering if it's worth getting divorce attorney.

    Diana’s Answer

    There are so many factors that go into the legal fees you will ultimately pay to complete your divorce. First, hourly rates will vary by attorney experience and location. Some attorneys, who may be very inexperienced or very hungry for work may charge as low as $150/hour. Some attorney with far more experience (and perhaps in the West LA, Beverly Hills area) charge upwards of $700/hour. In your area, anything between $200 and $400 is probably reasonable, but you really should contact local attorneys to confirm the going rate.

    In addition, the level of conflict and the complexity of the issues in your case, may require a more skilled attorney and/or more court time (court hearings) and/or discovery. All of this can add up. The state average in 2010 was $50,000 per person, according to some statistics. That's the last time I researched the average cost of a divorce - that's 6 years ago.

    You will have greater control of your divorce legal fees if you and your spouse are able to resolve most of the issues yourselves and/or through a collaborative or mediation process. There are a number of talented practitioners in your area who are experienced in these out of court processes. Contested court battles tend to be far more expensive. There are also many attorneys who will prepare the documents for you for a flat fee, if you are both in agreement on all issues.

    I hope this helps you in your research. You may want to consider attending a "Divorce Options Workshop" - there are a number of these throughout the state, at low cost or no cost.

    Good luck.

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