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Diana Lucia Martinez

Diana Martinez’s Answers

561 total

  • what is the form or affidavit that my wife need to file so I can disestablish paternity?

    I am in the middle of a divorce in with minors are involved but I am not the biological father and I was told by a judge handling the default hearing that I can avoid paying child support by either going to get a paternity test or having the mothe...

    Diana’s Answer

    In California it is not as simple as an affidavit. There is quite a bit that it not known about your situation that can have an impact: the age of the children, if you were identified as the father on the birth certificate, if you had raised them as if they were your children. Even if a paternity test shows you are not the father, the law can still impose parental duties depending on the answers to these questions. I would strongly recommend that you have your matter reviewed by a lawyer directly so that there are no mistakes as to what you can and cannot do under California law. Mis-steps can result in unexpected negative consequences.

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  • What do i do if my husband does not want pick up the divorce papers from the post office and sign the green slip?

    I live in California, my husband who is in New York, whom i have been physically separated for 15 years though we communicate through the phone about our kids who are all in their 20s. I filed for divorce and had the divorce papers mailed through ...

    Diana’s Answer

    You will need to have him personally served by someone who is over the age of 18 and not you. It may be an added expense, but it is better than the stress and possible legal implications of a delay. If you sent the form FL-117 Notice and Acknowledgment of Receipt, and he refused to accept such service by mail, you may be able to request reimbursement of some or all fees/costs you incur for service of process.

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  • How can I fix Court status of remarried date to date of judgment site of this year

    Hey judgment was granted in my divorce on December 11 why do I have to wait to next year to get remarried how can I change the status of singles that is so I can get married before end of year and this year court clerk indicated that court date t...

    Diana’s Answer

    I have had a number of errors made in Pomona court on this issue. Check the date you either personally served the respondent, the date that person signed the notice and acknowledgment of receipt (if you served him/her by mail), or the date that person filed his/her response. You would have had to have notified the court through a Proof of Personal Service or the Notice and Acknowledgment as to the date you served and service was proper. If you did not serve this person, then it would be the date s/he filed the response. Calculate 6 months and 1 day from that date to confirm that your date of divorce is correct. In California, you are officially single 6 months and 1 day from the date the respondent was served, or filed the response, and only after you have a final judgment. The court usually calculates that date for you on the judgment forms. Again, I have had them mess this up in Pomona court and I have had to get it corrected. But the date is 6 months and 1 day from service/response, there is no getting around that; it's the earliest you can be legally single and remarry in California..

    I hope this helps.

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  • Besides splitting the house am I entitled to spousal support and does the date I moved out change anything?

    I have been married for 24 years. I moved out w my two small children around 2004. There was a lot of arguing. He would spend his free time drinking with friends and with other family members. Sexual advances were made by a cousin of his that was ...

    Diana’s Answer

    Your situation has many complexities that really require direct analysis by a lawyer, rather than a general public reply such as those provided in this forum. I'm so sorry for all the loss you have experienced and can only suggest that you contact a lawyer directly so that you don't create regrets for the future.

    Here is some general information that may apply to your situation:
    Date of Separation ("DOS"): The date one spouse communicates to the other that s/he wants out of the marriage AND takes an affirmative step to so indicate. Under current California law, the spouses must be "separate and apart". This means, subject to possible, not specified in any case law exceptions, you cannot be living under the same roof. DOS is a tremendous bone of contention for people fighting over money in a divorce because that date is a cut-off for community property assets and debts. If you incurred a debt before the DOS, it's a community debt for which both spouses are responsible (again, exception may apply); if it's incurred after the DOS (exceptions may apply), it belongs to the spouse who incurred the debt. If you received income before DOS, community; after DOS separate. In a short term marriage (less than 10 years between date of marriage and DOS), it can also be a cut off for how long spousal support is paid, if spousal support is even warranted. In a long term marriage (10years +), it has no legal impact.

    Spousal Support: If date of marriage to DOS is less than 10 years, the rule of thumb is that spousal support, if warranted, is paid for half the duration of the marriage. Again, this is a rule of thumb; I have seen some orders exceed this general time frame and some that fell far short. It's really up to the judge. In a long term marriage, support, again, if warranted, could go until marriage of the receiving spouse, death of either spouse, or further order of the court - it's typically modifiable for a variety of reasons, including retirement. When the court orders "temporary spousal support" (that ordered while your case is going through the court process), the court can plug your gross incomes into a computer formula (same one that is used for child support) to generate a recommended support amount. This temporary amount tends to be higher than the "permanent" (that which the court orders at the end of your case). The "permanent" CANNOT be based on the computer formula. The court must consider Family Code section 4320: ability to earn, ability to pay, health, age, history during the marriage, education, how assets and debts get divided, etc. The last factor is whatever the judge deems just and equitable. This last factor tends to make spousal support the most fought over issue in a divorce, and the least predictable. The legislative intent behind the support laws is that both spouses work towards becoming self supporting. If you have the ability to work, the expectation is that you do. The court will consider how long you have been out of the work force, your education, degrees, etc. But, ultimately, if you can work, and refuse to do so, the court can impute an income to you (pretend you are earning at least minimum wage).
    Community assets, income from community assets, credits and reimbursements: community assets and debts typically get divided equally. If after DOS one spouse has been paying a community debt and the other has not, that person owes the paying spouse half the debt paid back. If one spouse has been using a community asset (a house) to the exclusion of the other, since DOS, the spouse using the asset owes the "out spouse" half the fair market rental value of the asset. If one spouse has been collecting community rents since DOS to the exclusion of the other, s/he owes the other half that money back UNLESS it was being used to pay a community debt.

    As you can see, this gets pretty complicated. I would suggest you reach out to a lawyer. Perhaps they can help you on a limited basis to try and resolve w/o court.

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  • How can I determine if the business my spouse owns/manages is considered substantial community property?

    My husband is a freelance designer and owns his own design business (there are no other associates working for the company). He has been a freelancer for the majority of our marriage. We are preparing to separate and he has moved all income into ...

    Diana’s Answer

    There are a number of general principles that apply to your question. These general principles do not replace legal advice based on the specifics of your case - you really should speak with a lawyer directly to provide legal advice upon which you can rely.

    The standard temporary restraining orders that prohibit transfers of assets without a court order or written agreement between the parties are binding on the petitioner when that person files and on the respondent when they are served or file the response (whichever happens first). Without this, either spouse can act freely without violating any restraining orders.

    There are two aspects to the business: the business as an asset, and the income from the business for purposes of support. Again, until the divorce is filed and served, there is not much that can be done. Once the divorce is started (filing and service), you can make a request for support (if warranted) which will preserve the ability to request it retroactively AND will require the disclosure of all income. If there is a value to the business itself (could be sold, owns assets, good will, etc), you can request a business valuation and determine how much of the business is community property. For a freelance designer, there may not be much of a value to the business, beyond assets. But if he has some big accounts, or a staff, or owns a large design company, that may be a different story. Determining the community interest in the business depends on a number of factors, including when the business was started, at what point the profits increased/decreased during the marriage, any separate property contributions to the creation/growth of the business, and so on. Business valuations tend to be quite expensive, with a streamlined analysis typically costing between $2,500 and $3,500 and full analysis costing over $15,000-$150,000+, depending on the type of business.

    In a divorce, financial disclosures are required: everything each party owns (together and separate), owes, spends, and earns. Whether you have access to the accounts or not, the disclosures MUST be made. Failure to disclose can result in serious consequences, including loss of the asset itself and monetary penalties.

    I strongly encourage you to seek your own lawyer and get the divorce filed and served right away to avoid further transfer of assets. I hope this information is helpful to you. Best of luck.

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  • Divorce: Spouse who is hiding assets hired new attorney and former attorney hasn't been paid and is now putting lien on home?

    He is hiding how much money he has by claiming all the money he's been using by wealthy family members (aka Business Affiliates) is irregular and loans. Also, he's laundering money via their accounts, but now he got himself a new attorney for some...

    Diana’s Answer

    You really need to speak with a lawyer to assist you directly - this is not the forum to handle such a situation. In general, however, understand that even when the court grants "exclusive use" of an asset does not mean that the asset has been granted as yours. Also, again speaking generally, a debt incurred by one party after date of separation is that party's separate property. If that debt impacts a community asset, the court can offset the division of assets or order one party to reimburse the community. Attorney's fees are treated differently, so you would have to consider each of your incomes and ability to pay for your own lawyers.

    Finally, again speaking generally, unless you reach an agreement with your spouse to designate jointly owned real property to one party, the court will order the sale of the property. In your settlement discussions, if you are able to have any (sounds unlikely in your case), you may propose that you get the property, and reduce any buy out of his equity interest (amount you would owe him, if any, by keeping an asset that has equity) by the amount that he owes, or offset it with some other asset

    I know that this may not be the reply you are seeking. It is really sad that you are stuck dealing.with what appears to be a very high conflict person. I would encourage you to speak with someone who has experience in high conflict matters to assist you in managing the legal and financial impacts that such a situation can have. Bill Eddy has some great information available online.

    Hoping this is helpful to you. Good luck.

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  • I am looking to divorce, what are the attorney and filing fees associated with a divorce? What is time frame to complete?

    I have only been married since 06/21/2014 and my spouse had plans to enter the work force in the nursing field. She has not done anything since I married her. We have had issues soon after getting married and I shouldn't have waited this long. ...

    Diana’s Answer

    The filing fees in Orange county are $435 for the petition and $435 for a response (if one is filed). Legal fees will depend on the level of conflict and the complexity of the issues.

    IF you qualify for summary dissolution, this does tend to be the least expensive way to go. This does, in part, require that neither of you request spousal support.

    If you do not qualify for summary dissolution, AND you are both in agreement on all items, you can retain a lawyer on a limited scope, to act as a neutral to prepare your documents. Many lawyers do this on a flat fee basis that usually does not exceed $3,000.

    If you do not have agreements, you can work with a mediator (good option if you are both able to negotiate on your own behalf), a team of mediators (working with a neutral legal mediator and a financial mediator and/or a communications mediator), or a collaborative team (good option when you want to negotiate outside of the contested process AND each have a lawyer guiding and advising you, as well as a financial professional and a communications coach helping manage not only the communications but also the emotions). Mediation tends to be the least expensive of the attorney-assisted processes, IF IT IS A GOOD FIT FOR YOU AND YOUR SITUATION.

    If you are not able to reach agreements in an out of court process (mediation or collaborative process), or one or both of you are not willing to participate in such a process, you always have the option of litigating (fighting in court). This does tend to be the most expensive in terms of money, time, and stress. Sadly, if one spouse refuses to cooperate, it may be your only option, at least at the outset.

    I would strongly recommend that you seek a consult or an orientation to get acquainted with the different options available with the lawyer of your choosing. If you are considering mediation, you may want to talk to that professional together.

    I hope this information is helpful to you.

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  • How difficult is it to get a divorce, soul custody of our child, and move to another state?

    My husband had an affair for 9 months, during most of my pregnancy and our baby's NICU stay, and after the baby came home. I found out and wanted to try to work through it. He gave me two months, and then left for the other woman. Our relations...

    Diana’s Answer

    This is an extremely complicated and sensitive area of family law. You are asking to remove a child from his/her parent. As harsh is this may sound, your relationship with your child's father is not the equivalent of your child's relationship with his or her father. The troubles you have had, the pain you have experienced, and his decision to be with another person have no bearing on whether or not the court should allow you to move to another state, thereby depriving this child of frequent and continuous contact with his/her father.

    There are a couple of ways to do a "move away" order: by agreement with the father or by contested court hearing. You can speak with your husband and see if he will agree to the move away, ether by making you the "primary" parent in a parenting plan (custody and visitation agreement), by giving you sole legal custody, or by simply agreeing that the child will live with you, with no designation of "primary" or sole legal custody. As the primary parent or sole legal custodian of the child, you decide where the child will live. Normally, in a request for a move away, the parent making the request must show that it is in the child's best interest to move, given that the child will have less contact with the other parent - better financial opportunities, better access to health care, better access to family and a support system. If you are the "primary" parent, the burden shifts to the parent who is requesting that the child stay. As sole legal custodian, you make the decision and the other parent has an uphill battle that will likely be lost. Simply agreeing without any such designation carries the risk that he may later change his mind. If much time has passed, the court's will likely not disrupt the child. But if he does so shortly after the move, there is no such certainty.

    You really should speak with a lawyer directly about this. Obviously, the more cooperative the father is, the easier it will be for you to move away with your child. If, however, he contests the move away, you will need to be ready to present evidence as to why it is better for the child, given that s/he will not have frequent and continuous contact with his/her father.

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

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  • Response form FL120..30 Day notice passed.

    As soon as my 30 days for divorce response were husband filed for default divorce. I sent in my response on the 29th day..however it actually got filed in court by the 31st day. Husband filed default a day before receiving my response. Wh...

    Diana’s Answer

    • Selected as best answer

    Ask your husband or his counsel to agree to set aside the default. If they refuse, you will have to file a motion to set aside the default, but you must do so soon - do not wait. If you request the set aside within 6 months of the default having been entered, the judge will grant your motion. If your spouse or his lawyer refused to agree to set said the default, and if you have incurred legal fees having to bring a motion to set aside the default, the court will grant you fees. It is a waste of court time to fight over such things. The courts do not appreciate it. But do not let your husband or his lawyer delay "negotiation" of setting aside the default. Your motion must be brought timely. And be sure to keep record of your WRITTEN request to stipulate to set aside the default, and your spouse's (or your spouse's lawyer's) written refusal so that you can show the court that you took the proper steps.

    I hope this is helpful to you. Good luck.

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  • I've been separated from my husband 13+ years, and plan on filing divorce. Is it possible to receive spousal support.

    I've been medically diagnosed with severe depression years ago & will be reapplying for SOCIAL SECURITY

    Diana’s Answer

    Spousal support, in California, tends to be the least predictable and most litigated (fought over) issue in a divorce. There are two types of spousal support: temporary and permanent. "Temporary" simply means that issued while your divorce is in process. You can only get retroactive spousal support to the first time you formally request it. You will have to show that there is a need for it and that the other party has the ability to pay it. "Permanent" means that which the orders at the end of your divorce case. In ordering this support, the court is required to consider California Family Code section 4320. These factors include ability to earn, ability to pay, history during the marriage, age, health, how assets and debts are divided, and whatever the judge deems just and equitable. It is this last factor that makes it difficult to determine some of the critical concerns regarding spousal support: will there be an award and, if so, how much, for how long, and is it modifiable.

    The fact that you have been living apart for so long will play in to the extent that have or have not received support from your spouse during that time - is there a history of financial independence and ability to support yourself. The court will also consider what the history was during the marriage (higher income earner, stay at home parent) and how long you were married. Spousal support will be limited based on the marital standard of living. Spousal support can be terminated at a certain point if you were married (before separation) for less than 10 years.

    I would strongly suggest that you speak with a lawyer who can assess your situation directly. This can be a very emotional and challenging topic in a divorce. It is important that you have a clear understanding and a realistic expectation going into this process.

    I hope this is helpful to you.

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