What Should a Woman Ask for in a Prenup in New York?

Divorce can be a complex and stressful process, especially when it comes to dividing assets and debts between spouses. In New York, prenuptial agreements can provide specific advantages for women, especially for those who are entrepreneurs or have significant assets. However, it’s crucial to understand the laws governing prenuptial agreements in your state, as well as the distinction between separate and marital property, before entering into a marriage. 

A prenuptial agreement can safeguard premarital assets, limit debt liability, and establish the amount and duration of spousal support in the event of a divorce. Moreover, it can minimize conflicts during the divorce process, saving both time and money. Understanding the specific regulations and requirements for prenuptial agreements in New York is essential to ensure that your contract is legally enforceable. 

At the Law Office of Richard Roman Shum, our team of experienced New York family law attorneys may be able to help you create an equitable prenuptial agreement that protects your financial interests and provides a fair outcome should you decide to separate. Contact us today at (646) 259-3416 to schedule a consultation.

Understanding Prenuptial Agreements

A prenuptial agreement, commonly known as a prenup, is a legally binding contract entered into by both individuals before their marriage. This agreement specifies the distribution of assets, liabilities, and financial obligations the couple will assume if the marriage ends in divorce, legal separation, or the death of one of the spouses.

Prenups can vary depending on the couple’s individual circumstances, financial situations, and personal preferences. The primary purpose of a prenuptial agreement is to protect each person’s separate property and define how joint assets will be divided in the event of separation. It can also address issues such as spousal support, financial responsibilities during the marriage, and inheritance rights for children from previous relationships.

Benefits of a Prenup

Prenuptial agreements can provide particular advantages for women, especially for those who are entrepreneurs or have significant assets. Some of the benefits include:

• Protection of premarital assets: A prenup allows couples to safeguard their premarital assets, such as business ownership, investments, or real estate, in the event of a divorce. This ensures that you retain control over your assets and prevent them from being divided during a divorce settlement.
• Limitation of debt liability: If your spouse has significant debt before the marriage or accumulates debt during the marriage, a prenuptial agreement can protect you from being responsible for these debts upon separation.
• Control over estate planning: Prenups can be used to outline inheritance rights for children from previous relationships, ensuring they receive their intended inheritance.
• Planning for financial stability: A prenuptial agreement can establish the amount and duration of spousal support, if any, which can provide financial security and stability for the spouse with lesser income in the case of a divorce.
• Facilitation of an efficient divorce process: By deciding the division of assets and property beforehand, a prenuptial agreement can minimize conflicts during the divorce process, saving both time and money.

New York’s Prenup Laws and Requirements

Each state in the United States has its own set of laws and requirements for prenuptial agreements. New York has strict regulations in place to ensure that these contracts are legally enforceable. Some of the key aspects of New York’s prenup laws include:

• Written agreement: The prenuptial agreement must be in writing and signed by both parties. Oral agreements are not legally binding in New York.
• Voluntary consent: Both parties must enter the agreement voluntarily, without coercion or duress. If a court finds that one party was forced to sign the prenup, it can be deemed unenforceable.
• Full disclosure of assets and liabilities: Both parties must provide a complete and accurate disclosure of their financial situation, including assets, liabilities, and income. Failure to disclose or misrepresentation of financial information can lead to the agreement being invalidated.
• Fairness: The terms of the prenuptial agreement must not be unconscionable or extremely unfair to either party. If a court finds that the agreement is excessively one-sided, it may be considered invalid.
• Proper execution: New York requires that prenuptial agreements be signed in the presence of a notary public, and both parties must have independent legal representation.

Understanding prenuptial agreements and the laws governing them in your state is essential for protecting your financial interests and ensuring a fair outcome should you decide to separate. It is advisable to consult with an attorney specializing in family law to prepare a legally enforceable and equitable prenuptial agreement.

Identifying Separate and Marital Property

Before dividing assets during a divorce, it’s crucial to classify them into two groups: separate and marital property. Separate property typically consists of assets that were owned by one spouse before the marriage, gifts or inheritances received during the marriage, and personal injury awards. Marital property, on the other hand, typically encompasses all assets acquired during the marriage, regardless of who earned or purchased them.

In some cases, separate property can become marital property if it’s mixed with marital assets to the point where it’s impossible to identify the original separate asset. For example, if a spouse inherits money and then deposits it into a joint bank account, it may be considered marital property. To prevent this inadvertent commingling, it’s crucial to maintain detailed records and keep separate property separate from marital assets.

Real Estate and Properties

Real estate holdings, such as your primary residence, vacation homes, and rental properties, also need to be assessed and divided during the divorce proceedings. In many cases, determining the value of these properties might require a professional appraisal. When dividing real estate, the couple can either agree upon a property’s value or require the courts to decide. Factors such as the purchase date, appreciation in value, and any associated mortgage or loan balances come into play when identifying real estate as marital or separate property.

When dividing the marital residence, some couples choose to sell the home and split the proceeds, while others might buy out the other spouse’s share of the property. Some even maintain their home as a joint investment or choose to defer the sale until a later time when the market is more favorable. Each couple’s circumstances and future plans will determine which option works best for them.

Bank Accounts, Stocks, and Investments

Bank accounts, stock portfolios, and other investment vehicles must also be divided during the divorce process. In many cases, joint accounts are simply divided equitably between the two parties. However, situations with individual accounts that have both separate and marital funds can become more complicated. To fairly distribute such assets, a detailed examination and tracking of deposits, withdrawals, and fund sources may be necessary.

In addition, couples often have joint stock holdings, business interests, or investment accounts that must be assessed and divided. There may be tax implications and other financial consequences for closing or dividing these accounts, which necessitates expertise from financial and legal professionals.

Retirement Accounts and Benefits

Retirement accounts are often some of the most significant assets in a marriage, and dividing them can be both financially and emotionally challenging. The process of dividing retirement accounts varies based on the type of account (e.g., 401(k), IRA, pension) and the jurisdiction’s specific laws. In many cases, a Qualified Domestic Relations Order (QDRO) is required to authorize the division of retirement accounts without incurring tax penalties. Collaborating with a skilled attorney and financial advisor can help ensure that your retirement assets are divided fairly and with minimal tax consequences.

Inheritance and Gifts

Generally, inheritance received by one spouse during the marriage is considered separate property, as are gifts given specifically to one spouse. However, as mentioned earlier, if inheritance or gifts are commingled with marital property, they can become marital assets. Additionally, if a gift is given to both spouses, such as wedding gifts or joint gifts received during the marriage, those assets are typically considered marital property and, thus, subject to division.

In conclusion, dividing personal and financial assets during a divorce can be a complex and contentious process. Collaborating with experienced legal and financial professionals, and understanding the distinction between separate and marital property, can help ensure a fair and equitable division of your assets while minimizing conflict and stress.

Division of Premarital and Marital Debts

Entering into marriage is an exciting and monumental life event. To ensure that both parties are protected and well-prepared, it’s essential to consider a prenuptial agreement. This legal document helps outline the division of assets and debts, should the marriage end in divorce. In states like New York, the equitable distribution principle governs the allocation of both marital assets and liabilities. By establishing a prenuptial agreement, couples can proactively address potential financial concerns and create a clear understanding of their financial responsibilities during the course of the marriage.

Marital debt in New York includes all debts accumulated during the marriage, regardless of which spouse incurred them. This encompasses credit card debt, mortgages, car loans, medical bills, and advanced degree educational loans.

Separate debt, on the other hand, isn’t subject to equitable distribution by the courts. This type of debt usually includes debt incurred by one spouse before the marriage, as long as it hasn’t been converted into marital debt. However, certain debts may be excluded from distribution by the New York courts, such as those incurred during the marriage without the other spouse’s knowledge, debts resulting from extramarital affairs, or debts solely attributable to one spouse and unrelated to marital expenses.

If a couple demonstrates clear intent to pay down a spouse’s premarital debt, separate debt can become marital debt. For example, if a spouse enters the marriage with $15,000 in credit card debt and the couple uses a joint account to reduce the balance, the debt may be considered marital debt.

The division of debts can be a complicated process with significant financial consequences for both parties after the divorce. An experienced family law attorney can assess your specific circumstances and help you understand your rights and obligations, whether through negotiation or litigation.

Income Disclosure and Maintenance

Full and accurate disclosure of each party’s income and assets is essential for crafting a fair and enforceable prenuptial agreement, which can help determine the appropriate division of property and spousal support in the event of a divorce. Both parties must provide comprehensive financial information, including sources of income, assets, liabilities, expenses, and investments.

It is often necessary for experts to assess the earning capacity of each partner, particularly if one has been out of the workforce for an extended period due to child-rearing or other caregiving responsibilities. Factors that could influence future earnings, such as age, health, education, and employment history, should also be considered in drafting a prenuptial agreement.

Any attempts to conceal assets or income can lead to severe consequences, including legal and financial penalties. Both parties must be transparent about their financial situation to avoid complications in the future.

Prenuptial agreements may also address maintenance, the ongoing financial support one spouse might be required to provide to the other in case of a divorce. This is distinct from alimony, which typically covers a specified period. Maintenance can be included in a prenuptial agreement under certain circumstances, such as when one partner has been financially dependent on the other, or when one spouse requires financial assistance to maintain their standard of living.

Spousal Support (Alimony)

In the case of a divorce, a prenuptial agreement can deal with spousal support, which is also known as alimony. While both spouses generally have the right to claim alimony, they are not obligated to do so. If the spouses agree to forego spousal support, they can state this in the prenuptial agreement. However, the agreement must be fair and enforceable, as determined by a judge.

The prenuptial agreement can address alimony by specifying the amount, form, and timing of payments, or by agreeing to waive spousal support altogether. This can save the couple from a long and expensive legal battle over spousal support. However, if waiving alimony would create significant financial hardship for one spouse, the provision may be considered unfair and invalidated.

This is particularly true if one spouse made significant sacrifices, such as putting their career on hold to start a family, which impacts their earning potential. In this case, enforcing the alimony provision would be considered unjust, and the provision may be nullified.

Negotiating and Drafting the Prenup

Once you have chosen your family law attorney, the process of negotiating and drafting your prenuptial agreement begins. Some key steps include:

• Identify your goals. Before drafting the agreement, it’s essential to have a clear understanding of your financial situation and what you hope to achieve through the prenup.
• Full disclosure. Both parties must provide a full and accurate disclosure of their assets and liabilities to ensure that the agreement is fair and legally enforceable.
• Identify the terms. The agreement should outline the division of property and debts, as well as any spousal support or maintenance provisions.
• Draft the agreement. Your attorney will work with you to draft an agreement that is tailored to your specific needs while also complying with New York law.
• Negotiate any necessary changes. Both parties may need to negotiate and compromise on certain terms to ensure a fair agreement.

Reviewing and Finalizing the Prenup

Once your attorney has drafted your prenuptial agreement, it is essential to review it carefully to ensure that it reflects your intentions and complies with the law. This may involve incorporating changes suggested by your attorney or addressing any concerns raised during negotiation.

It is crucial that both parties have independent legal counsel review the document to ensure that no undue influence or coercion has occurred. This will help preserve the enforceability of the prenup.

Lastly, the prenuptial agreement must be signed by both parties in the presence of a witness and notarized. Keep in mind that ideally, the agreement should be executed well before the wedding date to avoid any potential legal challenges arguing that the agreement was entered into under duress.

Once the agreement is signed, it becomes legally enforceable and will govern how your property, debts, and assets are divided in the event of a divorce or separation. While it may not be a romantic notion, having a prenuptial agreement in place can provide important financial protections and peace of mind for both parties.

Prenup Modifications and Termination

A prenuptial agreement, commonly known as a prenup, is a legal contract entered into by two individuals before getting married. The main purpose of a prenup is to establish the property and financial rights of each spouse in the event of a divorce. Although a prenup is created with the intention of being in force throughout the marriage, situations may arise that necessitate its modification or termination. 

Couples may want to amend their prenup for various reasons. Some common grounds for modifying a prenuptial agreement include:

1. Change in financial circumstances: A significant change in the financial situation of one or both spouses may necessitate a revision of the original prenup. For example, if one spouse starts a successful business or receives a substantial inheritance, the couple may decide to update the prenup to reflect these new circumstances.
2. Addition or subtraction of assets: If the couple acquires significant assets during the marriage, such as real estate or investments, the prenup may need to be amended to include these items. Conversely, if certain assets are sold or disposed of, the agreement may need to be modified to remove them.
3. Children: If a couple has children after signing the prenup, they may wish to modify the agreement to address issues related to child custody, support, and visitation.
4. Clarification of terms: If certain terms or provisions of the prenup are unclear or ambiguous, it may be in the best interest of both parties to revise the agreement to provide greater clarity and certainty.
5. Mutual consent: The couple may simply decide, at some point during their marriage, that they wish to alter the terms of their prenup to better suit their current needs and goals.

It should be noted that changes to the terms are not possible for a separated couple or those undergoing divorce proceedings. Modifications can only be made prior to or during the marriage.

Grounds for Pre-nup Modification	Brief Explanation
Change in financial circumstances	Significant financial changes may require revising the prenup, such as if one spouse starts a successful business or receives a substantial inheritance.
Addition or subtraction of assets	If significant assets are acquired or sold during the marriage, the prenup may need to be amended accordingly to include or remove these assets.
Children	Modifying the prenup to address child-related matters becomes necessary if the couple has children after signing the agreement.
Clarification of terms	Revision may be needed to provide better clarity and certainty if certain terms or provisions of the prenup are unclear or ambiguous.
Mutual consent	The couple may decide to alter the prenup’s terms during their marriage to better suit their current needs and goals.

Seeking the Legal Assistance of a Skilled New York Family Law Attorney

Hiring a family law attorney is essential when drafting a prenuptial agreement to ensure that the terms are clear, enforceable, and legally sound. A prenuptial agreement, also known as a prenup, is a legal document that outlines how assets and liabilities will be divided in the event of a divorce or separation. This agreement can help protect the interests of both parties and can save time, money, and emotional distress in the future should the relationship come to an end.

At the Law Office of Richard Roman Shum, our experienced New York family law attorney can help you understand the legal implications and consequences of the decisions you make during the drafting process, allowing you to make informed choices about your financial future. This is particularly crucial in situations involving complex assets, inheritances, or business interests, as well as for individuals entering subsequent marriages or those with children from previous relationships. Contact us today at (646) 259-3416 to schedule a consultation.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/what-should-a-woman-ask-for-in-a-prenup-in-new-york/

What Can Be Used Against You in a New York Divorce

Navigating the complex and often emotionally charged world of divorce proceedings is never easy. In New York, divorces can be long and often involve a myriad of potentially damaging factors, whether psychologically, socially, or financially. As a result, individuals facing the prospect of divorce in New York need to be aware of the various circumstances that can be used against them in order to protect their interests and ensure a fair resolution to their case.

Understanding the legal landscape of divorce in New York is a vital first step in safeguarding your future. However, the skilled help of a knowledgeable New York divorce lawyer can be invaluable in navigating this complicated process. At the Law Office of Richard Roman Shum, our experienced divorce attorney is well-versed in the intricacies of New York divorce law and can help you identify the circumstances that may be used against you in your case, while also advocating for your rights and interests. Contact us today at (646) 259-3416 to schedule a consultation and learn more about how we can help you through this challenging time.

Fault-Based Divorce Grounds

In New York, divorce can be granted based on both fault-based grounds and no-fault grounds. Fault-based grounds require one party to prove that the other spouse engaged in certain behaviors that caused the breakdown of the marriage. Some fault-based grounds for divorce in New York include:

1. Cruel and Inhuman Treatment: This ground pertains to physical or mental cruelty by one spouse to the other, making it unsafe or inappropriate for the spouses to continue living together. This may involve verbal abuse, physical violence, or psychological mistreatment. To prove this ground, the accusing spouse must provide clear evidence of the cruel treatment and show that it occurred during the last five years.
2. Abandonment: This ground refers to when one spouse has abandoned the other without reason or consent for a continuous period of at least one year. Consent to separation is not considered abandonment, and the spouse seeking divorce must prove that the other spouse left without any intention of returning. Abandonment can also be constructive if a spouse refuses to engage in sexual relations without any valid reason or justification during the same time frame of one continuous year.
3. Adultery: In this case, one spouse accuses the other of engaging in extramarital sexual relationships. However, proving adultery in court can be challenging, as direct evidence of the infidelity is often required, such as photographs, videos, or witness testimony. There are various defenses to adultery, including forgiveness, voluntary separation, and consent or encouragement by the accuser.
4. Imprisonment: This ground for divorce can be used if one spouse has been imprisoned for three or more consecutive years during the marriage. The accusing spouse can file the divorce action after three years but before returning from imprisonment.

No-Fault Divorce Grounds

No-fault divorce allows couples to end their marriage without placing blame on either party. The spouse filing for divorce must state that the marriage has irretrievably broken down for at least six months. The court will not grant a divorce until the couple has resolved all other issues, such as property division, spousal support, child custody, and visitation rights.

Procedure for Filing for Divorce in New York

Filing for divorce in New York involves a series of steps, which include preparing and submitting legal documents, serving the divorce papers to the other spouse (or their attorney), and attending court proceedings.

Preparing and Filing Divorce Papers

The first step in the divorce process is to prepare the necessary paperwork. The person filing for divorce (the plaintiff) must complete several forms, including a Summons and Complaint or a Summons with Notice. These documents explain the grounds for divorce, provide the necessary demographic information, and outline the desired terms for asset division, child custody, alimony, and other matters.

The plaintiff must then file the divorce papers with the appropriate County Clerk in the county where they or their spouse resides. There is a filing fee associated with this process, which varies depending on the county.

Serving Divorce Papers

After filing the paperwork, the plaintiff must serve the divorce papers to the other spouse (the defendant) within a specific time frame, usually 120 days. The service must be carried out by someone other than the plaintiff, such as a professional process server, a friend, or a family member over 18 years old.

The defendant must then respond to the divorce papers within 20 or 30 days, depending on the method of service. The response can be an answer, which contests the terms and grounds of the divorce or an acknowledgment in case an agreement has been reached.

Attending Court Proceedings

If the couple cannot reach a settlement through negotiation, mediation, or collaborative law, the case will proceed to trial. In court, both spouses, along with their attorneys, will present their evidence and arguments before a judge, who will then make the final decisions regarding divorce terms, such as property division, spousal support, child custody, and visitation rights.

It is essential to acknowledge that the divorce process in New York can be a complex and emotionally challenging experience. Seeking the guidance of a qualified divorce attorney can minimize stress, facilitate an amicable settlement, and help protect your rights and interests during the process.

Requirements for a No-Fault Divorce

The criteria for a no-fault divorce vary from state to state, but some common requirements may include:

• Residency: Most states have residency requirements before a no-fault divorce will be granted. This means that at least one spouse must have lived in the state for a specified length of time before filing for divorce. The residency period typically ranges from 3 months to a year.
• Grounds for divorce: In a no-fault divorce, the grounds for divorce are usually “irreconcilable differences” or “irretrievable breakdown of the marriage.” The spouse filing for divorce simply has to state that the marriage is over and that there is no chance for reconciliation.
• Waiting period: In some states, there is a waiting period from the time a no-fault divorce is filed until it is finalized. Waiting periods vary by state but can range from a few weeks to several months.
• Spousal agreement: In many cases, both spouses must agree to the terms of the divorce, such as division of property, alimony, and child custody. This is referred to as an uncontested no-fault divorce. If the spouses do not agree, they may need to go through a contested divorce, which can be more time-consuming and costly.

Impact of Adultery on Grounds for Divorce

In New York, adultery is considered a ground for divorce but it can be challenging to prove in court. To succeed in claiming adultery as a justification for divorce, you must provide substantial evidence that your spouse engaged in sexual relations with another person during your marriage. This evidence must be clear and convincing, as suspicions or allegations are not enough.

Gathering Evidence

There are several ways in which an individual can gather evidence to prove that their spouse has engaged in adultery. Some common methods include:

1. Hiring a private investigator: Many people choose to retain a private investigator to gather evidence of their spouse’s infidelity. A professional investigator can conduct surveillance, take photographs or videos, and document other activities that could support an adultery claim.
2. Obtaining witness testimonies: Witness statements from individuals who have seen or heard about the adulterous behavior can serve as crucial evidence in court. These statements can involve friends, family members, coworkers, or any other person with knowledge of the affair.
3. Presenting concrete proof: Concrete proof of adultery can include photographs, videos, or recorded conversations between your spouse and their lover. Text messages or emails exchanged between your spouse and the person with whom they had an affair can also serve as evidence of adultery.
4. Uncovering financial evidence: Bank statements, credit card bills, or other financial documents that demonstrate an expenditure related to the affair may be considered evidence of adultery. For example, hotel room charges, restaurant bills, or gifts purchased for the lover could serve as proof in court.

Methods of Gathering Evidence to Prove Adultery	Description
Hiring a private investigator	Retaining a professional investigator to conduct surveillance, capture photographs or videos, and document activities related to the adulterous behavior.
Obtaining witness testimonies	Collecting statements from individuals who have witnessed or have knowledge of the affair, such as friends, family members, coworkers, etc.
Presenting concrete proof	Providing photographic evidence, videos, recorded conversations, text messages, emails, or any other tangible evidence that proves the occurrence of adultery.
Uncovering financial evidence	Gathering bank statements, credit card bills, or other financial documents that indicate expenditures related to the affair, such as hotel charges, restaurant bills, or gifts for the lover.

Challenges in Proving Adultery

It is important to note that even if you are successful in obtaining evidence of your spouse’s adultery, corroborating these findings in court can be difficult. New York law requires that adultery be proven through “clear and convincing” evidence, which is a high standard to meet.

Additionally, proving adultery can involve revealing sensitive or embarrassing information about your personal life, which can be emotionally challenging. Due to the difficulties associated with proving adultery in New York, many people choose to file for a no-fault divorce, citing “irreconcilable differences” as their basis for seeking the dissolution of their marriage.

Navigating the Divorce Process in a Domestic Violence Situation

For those who are involved in a case of domestic violence and are seeking to file for divorce, having a support system and legal representation when navigating the divorce process is important. The following steps can help in increasing the chances of a favorable outcome:

1. Seek legal advice: Hire an experienced attorney well-versed in family law and domestic violence cases. They can help protect the victim’s rights and provide guidance throughout the process.
2. Collect evidence: Gather and document any evidence related to domestic violence, such as photos of injuries, threatening messages or emails, medical records, and witness statements.
3. Develop a safety plan: Work with the attorney, friends, family, or a support organization to develop a safety plan that includes a safe place to stay, financial resources, and emergency contacts.
4. File for a protective order: Based on the attorney’s guidance and the state’s laws, a victim should file for a restraining or protective order against the abusive spouse to ensure their safety during the divorce process.
5. Advocacy and support: Find local resources such as domestic violence shelters, counseling services, and support groups that can offer practical and emotional support throughout the divorce process.

Establishing Substance Abuse or Mental Health as a Factor in Divorce

For substance abuse or mental health issues to impact divorce proceedings, the existence of these issues must be established and presented as evidence in the case. This may involve obtaining records of substance abuse treatment, medical records documenting mental health treatment, or testimony from witnesses who can attest to the problems.

In some cases, expert witnesses, such as substance abuse counselors or mental health professionals, may be called upon to testify about the nature of the issues and their impact on the individual and the marriage. It’s essential for individuals involved in divorce proceedings with these concerns to seek experienced legal counsel who can help them navigate the process and present relevant evidence to the court.

Working with Your Divorce Lawyer

Once you have hired a divorce lawyer, there are several steps to take to ensure a productive working relationship:

• Be Honest: To allow your lawyer to represent your best interests, you must be completely honest about all aspects of your case. This includes providing full disclosure of assets, debts, and any other relevant information.
• Communicate: Maintain open lines of communication with your divorce lawyer. Inform them of any changes in your situation or concerns you may have. If you don’t understand something, don’t hesitate to ask for clarification.
• Be Organized: Gather all relevant documents, including financial records, real estate documents, and custody agreements. This will help your divorce lawyer develop a strong case on your behalf.
• Be Patient: Understand that the divorce process can be lengthy and may not always go as planned. Be patient with your lawyer and trust their expertise as they navigate the legal system on your behalf.

By taking the time to find the right divorce lawyer, promptly providing them with all necessary information, and maintaining open communication, you can help ensure a fair and efficient divorce process in New York.

Getting the Legal Help of an Experienced New York Divorce Lawyer

Going through the complexities of New York divorce law can be an overwhelming and emotionally charged process. There are various factors to consider, including fault-based grounds, evidence requirements, and the difficulties of proving adultery or establishing mental health and substance abuse issues. It is crucial to be well-informed and prepared. Having the support of a skilled New York divorce lawyer can make a significant difference in achieving a fair and just outcome for your case.

At the Law Office of Richard Roman Shum, we can provide the guidance necessary to navigate the intricacies of divorce in New York. Our experienced divorce attorney is dedicated to helping you understand and address the factors that may impact your case. You don’t have to go through this challenging journey alone. Contact us at (646) 259-3416 to schedule a consultation and let us guide you toward a more secure and positive future.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/what-can-be-used-against-you-in-a-new-york-divorce/

Do Both Parents Need to be Present for Their Child’s Passport Application in New York?

Navigating the complexities of child passport applications can be a challenging and time-consuming process, especially when it comes to understanding the importance of both parents’ involvement and the legal requirements for parental consent. In this article, we delve into the critical aspects of the child passport application process in New York, including the necessary documents, submission procedures, and situations where both parents are not required for completing the application.

Having the guidance of a skilled New York family lawyer can make a world of difference in understanding and addressing any potential legal issues surrounding the application process, ensuring that your child’s best interests are protected. Call the Law Office of Richard Roman Shum today at (646) 259-3416 to learn more about how our team of experienced New York family law attorneys can help you navigate the child passport application process smoothly and efficiently.

Importance of Both Parents in a Child’s Passport Application

The involvement and consent of both parents during a child’s passport application process is crucial for various reasons. Both parents are considered legal guardians of their children, meaning that both parties have equal say in making decisions relating to their child’s wellbeing. This includes travel permissions and passport applications, which require legal consent from both parents to ensure the child’s safety and prevent parental child abduction.

Legal Requirements for Parental Consent

In New York, passport applications for minors require the consent of both parents or legal guardians. This legal requirement ensures that both parents are aware of, and agree to, their child traveling abroad with a passport. Parental consent is especially important when a child is traveling alone or with only one parent.

For instance, in the United States, both parents must provide consent for a child under 16 years of age to obtain a passport. If one parent cannot be present during the passport application process, they must submit a notarized consent form (Form DS-3053) granting permission for the child to obtain a passport. In cases where one parent has sole legal custody, that parent must submit documents proving their custodial rights.

The Two-Parent Consent Law

The Two-Parent Consent Law was established in response to increased international parental child abductions. The law requires both parents to provide consent for a child’s passport application to ensure that children are not wrongfully removed from their home country by a single parent.

The law states that both parents must appear in person at a passport acceptance facility with the necessary identification, passport photos, and evidence of their relationship to the child. In cases where one or both parents cannot attend, a signed and notarized consent form or court documents granting one parent sole custody and authority to apply for the child’s passport must be provided.

The Two-Parent Consent Law creates a system of checks and balances to reduce the risk of international child abductions and ensures both parents have a say in their child’s international travel.

Child Passport Application Process in New York

Applying for a child’s passport in New York may seem like a daunting task, but following the proper steps and gathering the required documents can make the process smooth and efficient. We cover the important aspects of the child passport application process in New York, including the required documents, where to submit the application, and situations where both parents are not needed to complete the application.

Required documents for application

To apply for a child passport in New York, you will need to gather several documents before proceeding with the application process. Here’s a list of documents that you will need:

• Form DS-11: This is the standard passport application form for the United States. You can download it from the U.S. Department of State’s website, sign it at the time of submission, and provide all the details about the child, such as name, date of birth, place of birth, and social security number.
• Proof of citizenship: To apply for a child’s passport, you must provide proof of U.S. citizenship. Acceptable documentation includes a certified copy of the child’s U.S. birth certificate or a previous U.S. passport. Wait until you get a certified copy of the child’s birth certificate before applying for the passport.
• Proof of relationship: You also need to provide documentation proving a relationship between the child and parents. Typically, the child’s U.S. birth certificate, including the names of both parents, will serve as sufficient proof. If the child was born outside the United States, you can provide a foreign birth certificate, adoption decree, or court order establishing custody or guardianship.
• Parental identification: Parents must present valid identification when submitting the child’s passport application. This could include a U.S. passport, driver’s license, military ID, or government employee ID. Parents also need to submit photocopies of the front and back of their identification along with the application.
• Passport photos: You must submit 2×2-sized passport photos of the child, taken within six months of the application date. 
• Payment: The child passport application fee must be paid at the time of submission, which currently stands at $115 for a minor passport book.

Required Documents for Child Passport Application	Details
Form DS-11	Standard passport application form for the United States.
Proof of citizenship	Certified copy of the child’s U.S. birth certificate or previous U.S. passport.
Proof of relationship	Child’s U.S. birth certificate, foreign birth certificate, adoption decree, or court order.
Parental identification	Valid identification of both parents, such as U.S. passport, driver’s license, or military ID.
Passport photos	Two 2×2-sized passport photos of the child, taken within six months of the application date.

Where to submit the application

In New York, you can submit a child passport application at a U.S. Passport Acceptance Facility. There are many locations throughout the state, including post offices, courthouses, and public libraries. Some facilities require appointments, while others allow walk-ins. Visit the U.S. Department of State’s website to find the closest facility and verify their hours and appointment requirements.

In case of urgent travel plans, you may apply for an expedited service by providing proof of imminent international travel. This service has an additional fee, and you must apply in person at a U.S. Passport Agency or Center. The nearest location in New York is the New York Passport Agency, located at 376 Hudson St, New York, NY 10014.

Parental Exceptions and Special Circumstances

In most cases, both parents should be present when submitting the child’s passport application. However, there are circumstances where only one parent is needed. These include:

Sole Legal Custody

In case you are the sole custodian of your child and need to provide supporting paperwork for your child’s passport application, there are various types of documents you can use. These documents may include:

• a complete court order that grants you full legal custody, like a divorce decree or any other custody order. 
• a detailed court order that specifically allows you to apply for your child’s passport (a photocopy is acceptable) can serve as evidence. 
• a certified copy of your child’s birth certificate that lists you as the only parent
• a certified copy of an adoption decree with you as the sole parent.
• a certified copy of the judicial declaration of incompetence for the other parent who cannot appear in person, or 
• a certified copy of the death certificate of the parent who cannot be present.

One Parent Unable to Appear

In cases where a child’s passport application cannot be accompanied by one of their parents or guardians, the absent party can grant consent by filling out Form DS-3053, known as the “Statement of Consent.” 

To proceed, the parent or guardian who is unable to attend must:

• Sign and date Form DS-3053 while in the presence of a certified notary public, and
• Include a photocopy of both the front and back sides of the identification they presented to the notary public along with Form DS-3053.

Other Parent Cannot be Located

In instances where the other parent cannot be reached or located, form DS-5525, known as the “Statement of Exigent/Special Family Circumstances,” must be submitted.

• Make sure to provide as much information as possible on the form.
• Additional evidence will be required, such as a custody order, incarceration order, or restraining order to prevent international parental child abduction.
• If the non-applying parent is on military deployment, they should generally be able to supply a notarized Form DS-3053. However, in the rare instance that they are unreachable, you must either provide military orders and a Form DS-5525, which indicates that the non-applying parent is on a special assignment for over 30 days outside their duty station and cannot be contacted, or submit a signed statement from the non-applying parent’s commanding officer stating that they are unavailable.

Neither Parent Able to Appear

To obtain a child’s passport, a third party can submit a Form DS-3053, also known as a “Statement of Consent,” or a notarized statement from both parents/guardians granting permission for the third party to apply for the passport on behalf of the child. The statement should include a copy of the parents/guardians’ identification. However, if the statement is provided by only one parent/guardian, the third party must provide proof of sole custody of the consenting parent/guardian.

Keeping Track of Application Status

To ensure your child’s passport application runs smoothly, it is recommended to check the status regularly. You can track the progress of the application online or by phone. Be sure to have your child’s full name, date of birth, and the last four digits of their Social Security number handy when checking the application status.

Additionally, it’s essential to keep in mind that processing times for passports can vary depending on factors like application volume and the time of year. Remember to plan accordingly and apply well in advance of any planned international travel.

Renewing a Child’s Passport

All minor passports have a validity of five years, so it is necessary to renew your child’s passport when it expires. A child under 16, accompanied by both parents, must be present to renew their passport.

If the child’s last passport was issued when they were under 5, provide 1-2 photos per year from the issuance date to the present, demonstrating how their appearance has changed (casual or family photos are acceptable).

To renew the passport, follow these steps:

• Schedule an ACS appointment.
• Complete the DS-11 form online and bring it to the interview.
• Bring the child’s current U.S. Passport (original and a copy of the front page).
• Provide proof of U.S. citizenship (original and a copy): U.S. Birth Certificate or CRBA.
• Present the parent’s proof of identity (original and a copy of the front page): a valid government-issued ID, such as a foreign passport, driver’s license, or ID card.
• Bring one photo.
• Include the child’s SSN on the application. If they don’t have one, you would need to fill out a form with a specific statement indicating that they have never been issued an SSN.
• Pay the required passport services fee.

Obtaining a child’s passport in New York requires careful consideration of various legal requirements, including the involvement and consent of both parents. The Two-Parent Consent Law, in particular, plays a vital role in ensuring the child’s safety and preventing international child abductions. By understanding the necessary documents, submission procedures, and exceptions for parental involvement, parents can navigate the child passport application process with relative ease. 

Enlisting the help of a skilled New York family lawyer can provide invaluable assistance in navigating the complexities of the passport application process. At the Law Office of Richard Roman Shum, our team of skilled New York family law attorneys may be able to help ensure that your passport application is handled smoothly and efficiently, allowing you to obtain the necessary travel documents without unnecessary delay or frustration. Contact us today at (646) 259-3416 to schedule a consultation.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/do-both-parents-need-to-be-present-for-their-childs-passport-application-in-new-york/