Learn Law For All

Navigating Legal Intersections: Family Law Meets Immigration, Bankruptcy, Military Matters with Daryl Weinman

• Launi Sheldon and Guests

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Discover the often-unsuspected connections between family law and other legal disciplines as we join forces with distinguished attorney Daryl Weinman. In our riveting discussion, we peel back the layers of complexity surrounding divorce proceedings, child custody, and financial support when immigration statuses like H-1B and H-4 visas come into play. Imagine navigating a legal maze where a K-1 visa affidavit could tether you financially to an ex-spouse for a decade post-divorce. This episode unveils these truths and explores the consequences of criminal allegations on family dynamics, driving home the pivotal role that knowledge across legal intersections plays in securing fair outcomes.

We then pivot to the crucial topic of estate planning post-divorce, where a failure to update beneficiary information could leave your hard-earned assets in the wrong hands. Daryl imparts her wisdom on the special considerations surrounding military divorces, from the Survivor Benefit Plan to the division of retirement benefits, emphasizing the intricate dance between state and federal laws. Whether you're a service member facing custody complexities during deployment, or someone seeking clarity on how immigration or criminal law may impact your family situation, this episode is an essential guide through the legal labyrinth. Join Daryl and me as we equip you with the insights needed for informed legal decisions in the ever-evolving landscape of family law.

Speaker 1:

Hi, I'm Lonnie with Learn Law for All and today on our podcast we have Daryl Weinman. Hi Daryl, Hi Lonnie, Thank you for being here today. Daryl is going to talk to us about the intersection of law with different types of law with family law, so there's a lot of ways that that intersects A little bit about Daryl she is the founder of Weinman Associates in Austin and she's a family law specialized, certified by the Texas Board of Legal Specialization. She handles divorce and complex facets like child custody, support issues and asset division, and she's really known for her strong courtroom presence. I don't want to go into too much of it because you can watch. You can see all of her biography down below. But something very interesting, she also does the Hague Convention stuff, which I find fascinating. So I don't know if anyone else does, but she's got some cases listed on her website.

Speaker 1:

So, again, as our disclaimer, this podcast is for entertainment and educational purposes only. Listening to this does not create an attorney-client relationship or privilege. We are not giving specific legal advice here. Daryl is licensed in. You're still licensed in New York, yes.

Speaker 2:

No, you're not active right?

Speaker 1:

Yeah, yeah, she got her. She was, she was in New York and then now is in Texas, but she's licensed only in Texas. I'm licensed only in Arizona. So take that for what it's worth and enjoy. So I've got some questions for you. Daryl, Thank you again for being here, and we did just do a whole CLE on this, where she dives into this a lot, a lot more. But can you give me a list of types of law that intersect with family law?

Speaker 2:

So all kinds of law intersect with family law Immigration. We need to know, when two people are getting divorced, what is their immigration status, because once they get divorced, are they both going to be allowed to stay here, and that's a big issue. So, like in Austin, we do a lot of H-1B visas, which is a type of visa where somebody with specialized knowledge can be sponsored by a corporation or university and they're brought over here and their spouse and their dependents are on H-4 visas. Well, if they get divorced, the H-4 visa status goes away and they have to go back to their home country and then only the H-1B visa person gets to stay. So when I hear that, one of my first reactions is well, let's get them both on the. They can apply for permanent residency status. So let's get that in place so that at least both parents can stay here and they can co-parent. So really important to know what is their immigration status, what kind of visa, all that kind of stuff.

Speaker 1:

Yeah, and I did mention. I did mention this in the class it's there's a lot of different statuses. Right, there's, there's. You gave I can't, it was like three page list of different, maybe five of different types of statuses and the impact that it has. So keep that in mind and and you know that it's so important, what was it? There was also. What about the spousal maintenance part on that?

Speaker 2:

So there's a fiance visa and of course lots of people know oh, you know, if you marry an American then you can come to this country. Okay, so that that gets. We see that one a lot. It's a K-1 visa. So if a US citizen wants to marry someone from abroad, they can apply for a K-1 visa and it takes a while. It takes probably about a year right now for it to get approved and they have to go through an interview process and so on. Once they get approved, they have to come here and do their wedding within 90 days.

Speaker 2:

But the person who's sponsoring the foreign national has to sign an affidavit that says they promise to support that person for up to 10 years and it doesn't matter if they stay married. So you bring someone over here from a foreign country and find out after a year or so hey, we're not really compatible, I don't really want to be married to this person anymore. Well, that's fine, you can get divorced, but you are not going to get out of that affidavit and so, even if you're not married anymore, you still have to sponsor. You have to pay for this person's income for up to 10 years and it just becomes spousal maintenance, it becomes alimony, whether or not you're in a state that has alimony, whether or not they would qualify otherwise, you sign that affidavit and it survives divorce, so can something to consider yeah, I, I think it's really interesting.

Speaker 1:

I've used that in a case before, um, but only only once, and I was thankful that we found it. I we couldn't. All of the uh documents had mysteriously disappeared, um, and so when once we did finally find it, then that that was helpful. Uh, what other areas of law do you think are pretty important? And we did, by the way, just so that everyone knows, we did this cle, but we're doing individual cles on all intersections of the law, so we'll be talking with an immigration person to be talking about that and a criminal attorney and a bankruptcy attorney. So just keep that in mind. But we are just kind of touching the subjects and why they are so important. So what are some other areas?

Speaker 2:

Well. So criminal law, you know, a lot of times that is the last straw when people split up, there's, you know, an assault, a domestic violence assault, and so that leads to potentially protective order. If there's a protective order in place and the parents can't be anywhere near each other, how are they going to share the children? Who's going to live where? What is their communication going to be like? What if somebody is going to go off to jail or off to prison for a little while? How are we going to handle? Is there going to be any contact with the children? What kind of support is there going to be?

Speaker 2:

A big thing, though, that I tell all of my clients who could potentially be going off to jail or to prison for a little while If you have a child support order in place, make sure you file a motion to modify that child support order before you leave. Even if you can't get it heard and finalized before you leave. Have it on file, because the courts are prohibited from retroactively going back and changing your child support. So you know you went off to prison for five years, your child support's accruing all that time at 6% interest and there's nothing a court can do to forgive any of it, but if you filed your motion before you left, they can retroactively modify all the way back to the date of that motion. So just get that filed, even if you handwrite it, and send it to the court.

Speaker 1:

And I have a question for you on that In Arizona, and maybe it's not like if it's a big prison, but I think don't they provide you the documents to file that while you're in jail or prison? I think you can.

Speaker 2:

yeah, you can get a hold of all kinds of documents in prison, but you have to know to do it and most people think well, I don't know the child support anymore, because I'm in prison, I don't have any income.

Speaker 1:

Yeah, well, your child support% interest. So yeah, it's, you get good interest rates on.

Speaker 2:

So, yeah, criminal on those bankruptcy. You know people who are getting divorced are definitely struggling financially. Is it worth going through bankruptcy, not going through bankruptcy chapter seven or chapter 13? And do they do it jointly? And there's a lot to consider with that, because a lot of times as the marriage is sinking, the debt is going up. So what are they going to do about that? What assets are exempt? Non-exempt meaning if you're going to file for bankruptcy, the trustee is going to come in and take all your stuff and sell it to pay your debts. But there are assets that are exempt, like your first house, your first car and your retirement. Other than that, everything else is fair game. They can come in and sell it, pay off your debts and your credit's ruined.

Speaker 1:

Yeah, you know it's really interesting and I know this is probably more a question for a bankruptcy attorney. But you know, if you have two homes and you do get divorced, maybe it's better to file after the court has divided those two homes so that each person has their one home and their one car and their you know, their property. That's exempt Because as a I guess, as being divorced, you will have actually the right to have more property between you as opposed to if you're together, right?

Speaker 2:

Yeah, that makes sense. So, again, because it intersects with family law, you need to plan it out, like, when is the ideal time to do it? There are people who don't want to be divorced and will do what they can to mess with the other. And when you file for bankruptcy, the bankruptcy court's going to put an immediate stay on the divorce proceeding so you can't finalize it. Now it's not hard to get that stay lifted, but it generally will take at least a few weeks, and then the trustee at least is, you know, watching over the divorce to make sure you're not doing anything to prejudice the creditors that are part of the bankruptcy case. So, yeah, they can play games and stall it out, even if they don't qualify for bankruptcy. Just by filing it, they put a stay in place to prevent the divorce from being final.

Speaker 1:

Yeah, there are some nasty tricks out there that people do all the time. Let's talk about estate planning, because that was something that we talked about briefly and you and I talked about how important that was in the CLE and why that's so important. Jean, can you talk about that for a minute?

Speaker 2:

Yeah. So, particularly if you're about to be a single parent, you need to remember that if you don't have a spouse, who's going to be your next of kin to be making decisions for you? And the example that I use is my good friend who was she was a great planner, except somehow she didn't do her own final documents. And when she, at 49 years old, had a brain aneurysm, her children, who were 19, 18, and 13, were the ones standing by her bedside and they it was put on them to decide. Do you pull the plug? Do you organ donor? You know who's it was. It was horrible and luckily they did have aunts, uncles, grandparents who could help them, but they were the ones who actually had to sign the paperwork. And do you really want to do that to your kid, like, if you have your paperwork in order and your DNR signed and your medical power of attorney to you know your brother or parent at least it's not your kid that's making the decision. So getting those documents signed is super important.

Speaker 2:

The other piece of estate planning that we talked about was if you forget to change your beneficiaries because you have beneficiaries for your retirement accounts, your bank accounts, your life insurance and if you forget to change them after date of divorce, don't worry. If you still have your ex-spouse listed when it when you die, the money does not go to the ex-spouse. It's presumed that you forgot to change it and it would go to your heirs. Now, if you want to give it to your ex-spouse, if you do intend for them to have it some people stay very friendly after divorce you can do that. You just have to reaffirm it in writing after date of divorce to say no, I really meant to leave my ex-spouse as the beneficiary, and you can do that.

Speaker 1:

You know, that's really important too, because oftentimes in mediations, like in Arizona, we can't a court can't assign the ex-spouse as a beneficiary, but they can agree to it in a mediation, and so, you know, it's really important for attorneys to say listen, I understand that you guys are making this agreement, but there's, this is an action that needs to be taken to you know, ensure that your spouse stays on it. Because even if you just don't remove your spouse, it's important that you, you know, reaffirm it to make sure that they get that money.

Speaker 2:

We talk about too in military when we do military divorces the SBP, the Survivor Benefit Plan. So that is something that the military member has to elect at some point who is going to be their survivor, who's going to get the SBP. Now, once they've changed it, they can never, ever change it again. Military does not allow you to amend it or change it. So if you elected your spouse and then you're going to divorce your spouse, then your spouse is still going to get it and the military member has to pay for it.

Speaker 2:

There's a cost that goes along with it. It's like 300, 350 a month to have the survivor benefit plan. Because you can decline it, you don't have to have it. But if you choose it and you choose your survivor, you can never, ever change it. So just to be aware that that might be out there, because usually if I've got the military member I'll say, look, she's going to continue to get this benefit, she should be paying for it. So she should pay the 350 a month, not him. He's not getting any benefit from it. So you know, that's just something else to think about, to talk about.

Speaker 1:

Interesting what happens if they don't pay it. I guess if they're in the military they're going to get in trouble. It's going to come out automatically.

Speaker 2:

It comes out of their check anyway, they're not. It's not optional. The military withholds it.

Speaker 1:

That's incredible. I did not know that one. That's it. That's an interesting one and kind of a scary one, I'm sure, for a lot of military people, because I've done military divorces. But they were, they were short, they weren't, they weren't, you know, long we have, um, a military base not too far from here.

Speaker 2:

So we we do a bunch of military divorces and it's after you've been married more than 10 years where a lot of things really kick in less Less than 10 years. The military won't divide retirement, so you just have to rely on the fact that the person who's keeping it all will buy out the other spouse. But you can't get DFAS to actually write two checks like you can with other types of retirement.

Speaker 1:

Yeah, that's interesting. Well, maybe you can do one on military divorces. I think those are so important on so many levels, because there's so many federal laws that come into play with military, that you know our state laws are just we're at their mercy, right?

Speaker 2:

Yes, yeah, the state court can order anything they want, but a federal law overrides it.

Speaker 1:

I mean, deployments and things like that are so important. So yeah, that would be another great one to do.

Speaker 2:

Yeah and yeah, we talk. Yeah, definitely deployments and we have that in the family code and what happens if a parent is deployed and how does custody work for that, and yeah, all kinds of stuff.

Speaker 1:

And so we did talk about a couple of other ones. I just want to kind of go through them real quick. I know we're running a little short on time, but we talked about immigration law, which you talked about, criminal law, which you talked about a little bit, bankruptcy, which you talked about a little bit. We just talked about estate planning. There's civil law, which we have a whole other podcast on and a course specifically on that one. We'll have courses on all of these individually where we go more in depth. But tax law is a big one too, and you talk a little bit about the innocent spouse claim.

Speaker 2:

Yeah. So so the IRS looks at two people who are married as they owe the debt equally, and of course maybe they didn't incur the debt equally. Of course maybe they didn't incur the debt equally. So like if one spouse is self-employed and for years didn't properly report income, maybe didn't file tax returns, didn't pay the taxes, whatever it is, and then you get divorced and all of a sudden the IRS is trying to take from the other spouse and they say I had no idea what they were doing with their money, whether they were paying taxes, I didn't handle it, I have nothing to do with that. I didn't get any of the benefit of it either, because we were separated for years and they kept all that income.

Speaker 2:

So the IRS can say okay, you're an innocent spouse, I'm not going to put this on you, because the IRS just wants its money. They don't really care who incurred it or what they see. You've got money in a bank account, they're going to lean it and take it. And then you can say wait, wait, wait, wait. It's not my debt, it's his debt. So but you have to prove that and in a lot of families you know one person's running the business, the other is managing the financial accounts. Well, you might not have been running the business, but you still knew what was going on and you know. So you're going to have to go through a lot with the IRS, but if you really didn't know and didn't get the benefit of it, then you can get the innocent spouse exemption.

Speaker 1:

Well, I don't think they like to give that away very often. Yeah, but again, also, if you signed it right, they're like, oh, I just he put it in front of me and I signed it. I hear that a lot, but again, you signed it.

Speaker 2:

So you know, I think the presumption is the presumption is that you knew, but if you can prove that you didn't, then maybe they'll let you off the hook. The other stuff we talked about in tax law that was alimony used to be deductible to the payor and taxable income to the receiver, and it's not anymore. It's non-taxable event, so whoever's paying it can't deduct it. Whoever receives it doesn't pay income tax on it, and you can't use it as a bargaining chip and mediation anymore.

Speaker 1:

No, it used to be, or you remember you probably did this too where you would put a little more in child support, because child support wasn't tax deductible for the receiver either.

Speaker 2:

so you'd you'd maybe put a little more there and a little off here and you could sort of balance it to get, like the benefit that somebody needed, um with the least tax burden, um, in some cases, do it as, like you know, if you're going to buy somebody out of the equity in the house that you're keeping or out of the business that you're keeping, you know I owe the other person, you know $200,000. Well, instead of transferring $200,000, I'll pay, you know, $220,000, but I get the deduction, the tax you know, as alimony. I get the tax deduction. She has to pay the income tax on it, but her tax bracket's lower. She has to pay the income tax on it, but her tax bracket's lower. Let's just do it that way. Yeah, that went away. It's gone.

Speaker 1:

Yeah, that was an interesting one, I guess it. I think it did end up creating more money, right, I mean, I think it did end up creating a bigger increase in taxes received, because the income splitting that it was achieving before wasn't working when you started making the high earner pay the taxes on it with the higher rate.

Speaker 2:

Yeah, yeah, yeah. And then the exemptions went away to the per child exemptions went away and now we just have head of household, which is great when you've got two kids, because they can each claim one kid and they can each get the head of household exemption.

Speaker 1:

But when there's only one kid, we can by agreement of course state court can override federal law, but by agreement they can take turns claiming head of household each you know, every other year, uh and share the benefit which we, we do that this is so interesting and because in arizona they do make orders that say that, that say you know, even if, even if one parent say parent a has the kids 80 of the time and parent b has them 20 of the time, but they're paying child support, um, they get the child in the percentage. They get to claim the child in the percentage, or at least they did in the percentage that they were earning.

Speaker 1:

Huh um so that, and again contrary to yeah the irs code. Yeah, yeah it's interesting, get away's interesting you know, I think people just they just do it. I, you know, I mean, um, that's just they get to claim. You know, this year and this year and this year now again, I I haven't had a family law case now in since 2018. So, um, I don't know what they're, what they're doing now with that law change, but yeah, that was that had to, because we used to be able to trade off the exemptions every year things like that.

Speaker 2:

But now it's not a per child exemption, it's a if you have one. If you have 10, doesn't matter, same deduction.

Speaker 1:

Yeah, that's interesting. So another, another tax issue. You know that's difficult, and then you talk a little bit about real estate and juvenile, which was very different between the states, and so that that's something that will. She talked a little bit more in the CLE, but something that we'll have separate classes on also. So thank you so much for being here. I appreciate it. I think these are really really interesting subjects where you have to know the other areas of law or you can really get in trouble and you can pass them off.

Speaker 2:

Look, I've had clients where I would say, yeah, you need to talk to a criminal attorney having a really good network of other professionals so that when someone comes in they say, am I going to qualify to refinance this note, I can pick up the phone and call my friend who's a mortgage lender. You know, where should I invest this money that I'm going to get from the house? Let me call my financial. You know, I have all these people in my world, in my network, because you have to admit you can't, you can't know it all. And there's family law. There's so many areas that it touches on. You know, I learned all this stuff because I've been doing it so long and I've dealt with all these other professionals. But if I have an immigration question, I pick up the phone and call an expert, because I'm not an expert.

Speaker 1:

No, but you sure know a lot which we found out in the CLA. That was a lot of information that I honestly had no idea about, so it's very interesting. I definitely think we need to come up with a cheat sheet for family law attorneys things that they need to understand, especially if the people getting divorced are in a tech city, like you are. You're in Austin, right, or San Francisco, or Seattle, or wherever the techie people are. I mean, I think we have some techie people in Arizona, but I have to say I never really I came across the immigration stuff on a whole different level, because you know we are in Arizona and we have a lot of people come in that are undocumented, that that can be. You know that's a whole separate problem and so, yeah, so that's a lot of moving pieces in immigration law. So we definitely have to do a course on that and I know we're planning on it. So thank you so much for being here and I'll be talking to you soon, all right, thank you, bye-bye.