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Diana Lucia Martinez

Diana Martinez’s Answers

561 total


  • Can I take half of the monies in our joint account when I file for divorce?

    I have been married to my husband for 3 years and it's been hell. Together we have a 15 month old and he has three children from a previous marriage. My husband is emotionally abusive and physically abuses his two boys in which case I have zero pr...

    Diana’s Answer

    First and foremost, you really need to prepare yourself and your family for what appears will be a very high conflict transition. Number one is ALWAYS safety. Make sure you have people around you who are aware of the situation and can be there for you if he tries something (either physical harm, financial harm, or anything else). Make sure you have a safety plan: someone who checks in on you, a code word (in case you are in trouble and he is near by) that alerts them to contact the police, know where the police stations are, etc. I don't know if this information is excessive, but I"m erring on the side of caution based on what you have shared here.

    The short answer to your questions is YES. Income earned during marriage is community property (half yours, half his). You do not have to be working to have a claim to funds in your joint account. Take no more than half. You can also use joint funds to hire a lawyer. It sounds like you may need some protective orders in place and a temporary custody and visitation plan. It sounds like he's fairly well versed in divorce (given what he is saying about living arrangements and have you have shared about his ex).

    A contested court battle tends to bring out the worst in people. Odds are, he is the way he is because he was likely abused or suffered some kind of serious trauma as a child; it's all he knows. And when he feels attacked, this is his only way of protecting himself. This is not an excuse for his behavior. It may, however, help you in learning how to avoid triggering him, how to help him stay calm, and how to keep yourself safe. You are not going to be able to change or fix him. When you tell this personality that you want full custody, expect all out war... and your daughter will be right in the middle of it. While a lawyer may be a very important part of this transition, I'm going to STRONGLY suggest that seek a therapist who is well versed in high conflict personalities. There are many amazingly talented people in your community. San Diego has a collaborative divorce group with many professionals who work in such high conflict cases. Go online and Search San Diego Collaborative Divorce and Shawn Webber (he's the president of the organization). They have child specialists, financial professionals, mental health professionals, and lawyers who are specially trained to manage these types of situations. Fighting in court, although it does provide limited protections, also tends to make things worse - this is why we see more murder suicides and abductions in family law: the courts are not equipped to handle or even monitor these high conflict matters. A restraining order is not abduction or bullet proof.

    Again, I don't want to be alarmist, and maybe your situation is not as bad as it seems based on your comment. I err on the side of caution. Use your best judgment, and get yourself educated on the options available to you. I would definitely start with Shawn's group, and maybe look into Bill Eddy and how to work with high conflict personalities. It's going to be really useful information for you moving forward. While you may not always be his wife, he will always be your father's daughter. And both you and she are going to have to learn how to live with that personality. Time to make some lemonade out of those lemons - it may still be sour, but you do need to start handling this in a new way.

    I hope this information is helpful to you. Be safe and good luck.

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  • Is there ramifications for attorney's who do not declare their fees in form FL-150?

    I went to see an attorney for a consultation. The reason is for concealment of an asset from ex spouse post divorce. The attorney reviewed some information with me. It wasn't a good meeting overall and attorney made a 'big' deal that the...

    Diana’s Answer

    This section is necessary if that party is requesting that the other party pay his/her legal fees, or any portion of them. It really does not relate to omitted assets in any way. And there really is no legal impact to the other party - the impact would only be that the party failing to complete that section cannot request attorney fees until that section is completed - they could always file a new I&E, but they would still have to provide evidence and show legal justification to request such fees.

    I hope this is helpful to you.

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  • Does a pension from previous employer have to be joined as well as the current employer in a divurce action?

    If my spouse worked for 11 years with a company and ended employment in 2013, then took a new position with a new company in 2014, does the pension from the old job somehow carry over into the new jb, or do both pensions need to be joined?

    Diana’s Answer

    Pensions don't usually merge or carry over, since these are essentially credits for future income, rather than money in an account (like an IRA, for example). In a divorce or separation, when you do your financial disclosures, the pension(s) should be disclosed there, and you'll have a better understanding of what assets were acquired/earned during the marriage. Either way, you will need to join the pension through a QDRO ("Qualified Domestic Relations Order") or a DRO (depending on type) in order to divide the pension. There are lawyers who specialize just in doing QDROs.

    I hope this is helpful to you. Good luck.

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  • Please let me know if you need to know any other factors to calculate spousal support.

    Its a divorce case in CA court. I earn 55k per annum and my husband earns 136k p.a. No children involved. Marriage duration 2.5 years. My husband is asking waiver for spousal support in his settlement agreement. We have no assets nor debts...so no...

    Diana’s Answer

    Spousal support is a very hotly contested issue in many divorce. There's a lot of emotion wrapped around it. If you are going to dispute this issue in court, or even in your negotiations, you need to have a foundation upon which the judge can grant your request and/or your soon o be ex sees a value in negotiating a resolution that includes some support.

    Get familiar with Family Code Section 4320. Take a look at my posts about temporary and permanent spousal support. In a short term marriage (less than 10 years), the rule of thumb is to award support for half the duration of the marriage, if it is warranted. This is just a rule of thumb - I've seen $0 support, I've seen support ordered for much longer.

    This isn't something that one can really provide good legal information about in this forum. I would strongly recommend that you consult with a lawyer who offers dispute resolution services such as mediation and/or collaboration, so that you can get a very realistic expectation on this topic before you negotiate with your spouse. If that lawyer has the appropriate ADR training, s/he may also be able to give you some tools and/or techniques on how best to present different possibilities when speaking with your spouse, that also address the emotional charges behind this topic.

    I hope this is helpful to you. Good luck.

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  • Who is responsible for initiating resolution of those sections; filing the RFO? What would be the proper course of action?

    I filed for divorce, after 25+ years of marriage, to get out of a relationship that left me broke and me each payday, hundreds of dollar overdrawn. If it wasn't for an unsolicited loan from a friend for a retainer fee, I would have had no alterna...

    Diana’s Answer

    Reserving jurisdiction of the court means that anything not resolved, or ambiguous, or omitted can be returned to the court for the court to make the appropriate orders. It does require that one party initiate the request, giving proper notice to the other party. The legal process is often frustrating and confusing. You may want to consider trying to resolve the loose wording in an out-of-court process like mediation, or collaboration. Maybe just hire a consulting lawyer to propose a post-judgment modification for you to share with your ex?

    These are just some options that may reduce the stress, or be less time consuming/expensive in the long run. They may not be a good fit for your situation, depending on the complexity of the issues and/or the level of conflict/communication between you and your ex.

    I would strongly recommend that you speak with a lawyer who offers consulting and/or mediation services, and can help you assess a process and next steps that would be most productive for you. There is no guarantee that this can be corrected or that your ex would even find value in cooperating. But it may be helpful to get more information on your options.

    Good luck.

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  • Can I get quick divorce. How can I sign house/mortgage over and req him to pay. Am I going to be req to suport him

    I've been married since 2008. Looking for divorce. Been separated since July 2015. Everything is in my name and I've been supporting him since we first met in 2006. He refuses to work and support himself. The mortgage is in my name but I don't wa...

    Diana’s Answer

    The fastest way to resolve a divorce is by reaching agreements. Unfortunately, emotionally and often financially, this can be difficult. If he's going to want spousal support (and if you were the higher income earner, this is, legally, a likely outcome), unless you are willing and able to pay it, you will, most likely, have a prolonged court battle. As my colleague stated, if he has the ability to earn, the court can "impute" an income to him (pretend he is earning a certain amount, either based on prior earnings, a vocational evaluation, or minimum wage). There is a computer formula that you can use (available at most law libraries) called "Dissomaster" or "ExSpouse". These programs will give you the "temporary" spousal support amount, that which is often ordered during the divorce process. This amount tends to be higher than the "permanent" spousal support, which is the amount ordered at the end of your case (does not mean it is forever fixed). The permanent tends to be less than the temporary. For guidance on the permanent, you can research online California Family Code Section 4320. These are the factors the court MUST consider when making that order at the end of your case.

    As it relates to the house, if you are not able to reach an agreement, the default will be the sale of the house. If the house is solely in your name, the following questions must be answered in determining who gets what from the house: was it purchased before marriage and, if so, were any payments made during marriage using income earned during marriage (before date of separation); were any payments made from income earned after date of separation; if it was purchased during marriage, was title transferred to only one spouse and, if so, was there any undue influence or fraud in securing that transfer? There are other questions, but determining community and separate property may create an obstacle to a fast resolution. Finally, as it relates to the house, transferring title is easy - you can sign the house over to him without any difficulties as long as he agrees. The hard part is transferring the mortgage. A lender will not simply relieve a debtor because s/he is getting divorced. The credit was provided to you based on your income and credit history. If your spouse has no income and/or poor credit history, odds are, the lender will not qualify him for a new loan - yes, NEW LOAN. The only way to remove your name from the mortgage is to pay off the mortgage in full (possibly through a sale), or refinance the house under someone else's name - they must qualify for the refi.

    The fastest you can be divorced (legally single) is 6 months and 1 day from the date the responding party is properly served with the petition documents. But you can have a signed, and binding, divorce judgment covering spousal support, division of asset, and division of debts well before then (you're just still married until the 6 month period is up - the court puts this date on your judgment documents). The fastest way to resolve all issues tends to be when the parties agree. In Riverside County, average time to trial is 10 months to 1.5 years, depending on the level of conflict/cooperation between the spouses. It can go for longer if the case is highly contested by one or both spouses. You may want to consider mediation or a collaborative divorce process. These tend to be faster and less expensive.

    There is a Divorce Options workshop coming up on January 28th at Orange Coast College in Costa Mesa. You may want to look into it for more information on contested and uncontested divorces. You may also want to consult with a lawyer who is knowledgeable in these processes; Most offer free initial consultations.

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

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  • Married in Mexico want divorce live in California

    I got married in Mexico a year ago, he is a mexican citizen. We were together for less than a month. How do I go about divorcing.

    Diana’s Answer

    As my colleagues have said, you must meet the requirements to file in LA county (6 months in the state of California, and 3 months in the county in which you reside). If you are able to reach agreements with your spouse, you may qualify for a summary dissolution, but there are some very strict requirements to so qualify. Do an online search and you will find all of the requirements. If you do not qualify, you are still better off reaching agreements together as this will be a far less expensive way to divorce. If you cannot reach agreements together, you may want to consider mediation or collaborative divorce as the next best alternative. If there are serious legal issues, such as physical abuse, hiding or selling off of assets, or the like, you may be faced with a contested matter in court (which tends to be the most expensive option). Given that you were married for one year, there may not be much to fight over. But, battles can result when, emotionally, one of the spouses is not ready for the divorce, or if one spouse is holding out for, say, his greencard. There may be other complexities of which we are not aware. I would encourage you to speak with a lawyer (many do not charge for the first consult) to get a better idea of what process would best meet your needs, and what you can realistically expect moving forward.

    I hope this information is helpful. Good luck.

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  • What does "date of service of summons/petition" mean?

    filing a judgement packet to finalize my divorce

    Diana’s Answer

    It is the date the Respondent was served with the initial divorce papers. The legal impact of this date is it starts the 6 month + 1 day period: the earliest date by which you can be legally single again, assuming you have completed your divorce within that time frame (judgment for divorce signed by the judge).

    I hope this information is helpful to you.

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  • What are my legal options when it comes to my situation?

    My husband and I have been together about 24 years and married for 16. He has not worked in almost 8 years. He is verbally abusive to our 17 year old daughter at times and has no communication skills whatsoever. He literally lays in bed and watche...

    Diana’s Answer

    Mr. Waller's information is extremely sound. The worst thing you can do right now is act out of anger. If he has no desire to work WITH you in the marriage, he may not want to work WITH you in the counseling. But you do need to get yourself to a point, emotionally, that allows you to think very clearly as to the best next steps.

    As it relates to a divorce or separation, I would encourage you to attend one of any number of informative workshops on the topic. I understand it is a long drive for you, but there will be one such workshop in Costa Mesa at Orange Coast College on Thursday, January 28th. You can do an online search for Divorce Options and see if there is a workshop near you. These workshops are given statewide, and the speakers volunteer their time, are not "selling" their services, but rather, are providing general information so that people facing the challenges such as yours have a better, and more realistic, understanding of what to expect. The presenters are teams of one family law lawyer, one mental health professional and/or child specialist, and one financial professional, all of whom practice in family law and are trained in mediation, litigation, and collaborative practice.

    As it relates to the spousal support, yes, as the higher income earner, the court may order you to pay him spousal support. However, I encourage you to look at Family Code Section 4320 (you can find it online). These are the factors the court must consider when making the orders at the end of your divorce process. His ability to earn may be a question the alleviates the support burning you experience. If he has the ability, the court can order a vocational evaluation to determine what his income could be. The court can, as my colleague explained, impute (pretend he is earning) at least minimum wage. So all is not lost.

    There are legal implications of delaying the start of the divorce/separation process (I'm not trying to encourage you to start right away, just letting you know some of the concerns) in that you do not yet have a date of separation. This is a legal term that is often used to stop further community assets/debts. For example, if you receive a bonus from work performed after date of separation, it's all yours (separate property); if you earned it before date of separation, he gets half (community property. Debts incurred before date of separation are community, debts incurred after date of separation are separate.

    Again, I encourage you to see if he would be willing to participate in marital counseling, if that is something you also want. Short of that, a Divorce Options workshop may be very helpful, and certainly speaking directly with a lawyer will provide further education and guidance.

    I hope this is helpful to you. Good luck.

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  • Can I request spousal support when filing for marriage annulment?

    Hello, I'm getting ready to file annulment based on my spouse's bigamy. not only he lied to me about previous marriage(not being divorced), also stole money from me. as far as I know, he has no assets, no job but gets social security support month...

    Diana’s Answer

    Yes, you can make the request. An order for support, however, is not based on either spouse's honesty (or dishonesty) during marriage. The court will base the award on Family Code Section 4320, which includes income history during the marriage (who was the higher income earner), duration of the marriage, ability to pay, ability to earn, and so forth. You can research these factors on line. Spousal support, especially in a high conflict and/or emotionally charged matter such as yours appears to be, can be an extremely expensive process, with, often, disappointing results if you do not have realistic legal expectations. If your spouse has no income, the social security benefits he receives may or may not be income available for support (there are a number of factors that impact this). And, if you were the higher income earner during the marriage, he could request support be paid by you to him (request, not that he would succeed).

    I would strongly recommend that you consult a lawyer to directly analyze the specifics of your situation so that you can have a more precise understanding.

    I hope this is helpful to you. Good luck.

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