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/

Understanding the Evidence Required to Obtain an Order of Protection in New York

Obtaining an order of protection can be a crucial step in ensuring your safety and well-being. An order of protection is a legal order issued by a court that prohibits an individual from engaging in harmful behavior towards another person, and it can provide vital protections for victims of domestic violence, harassment, stalking, or other forms of abuse.

First, it is important to understand the legal basis for obtaining an order of protection in New York. The Family Court Act provides for two types of orders of protection: an order of protection in the family court and a criminal court order of protection. Family court orders of protection are typically obtained in cases where there is no pending criminal case, or where the alleged conduct does not constitute a criminal offense.

In New York Family Court, the victim of abuse must file a Family Offense Petition, which alleges at least one of the available Family Offenses elaborated in the Family Court Act. If you are experiencing domestic violence or abuse in New York and need assistance obtaining an order of protection, please do not hesitate to reach out to our team of Manhattan family law attorneys at the Law Office of Richard Roman Shum. We are committed to advocating for victims of domestic violence and helping them obtain the legal protections they need to stay safe. Call us today at (646) 259-3416 to schedule a consultation.

What is a Family Offense?

Family offenses are defined in the Family Court Act as offenses committed between certain family or household members, including spouses, former spouses, persons related by blood or marriage, persons who have a child in common, and persons who are or have been in an intimate relationship. Family offenses include, but are not limited to:

• Disorderly conduct: This includes any behavior that is likely to cause a public disturbance or that is intended to provoke a fight or argument. Disorderly conduct can include physical violence, threatening behavior, or verbal abuse.
• Harassment: This offense involves any behavior that is intended to annoy, alarm, or harass another person. Harassment can include repeated phone calls, emails, or text messages, as well as following or stalking a person.
• Menacing: This offense involves threatening to cause physical harm to another person. Menacing can include brandishing a weapon or making verbal threats of violence.
• Assault: This offense involves causing physical harm to another person. Assault can include hitting, slapping, punching, or any other physical act that causes injury.
• Sexual assault: This offense involves any sexual act that is performed without the victim’s consent. Sexual assault can include rape, sexual abuse, or any other unwanted sexual act.

Types of Orders of Protection

When we have filed your Family Offense Petition describing how you have suffered one or more of the above Family Offenses, the Court may decide to hear from us Ex Parte, which means before having notified and without the participation of the alleged abuser. In cases of serious abuse, where the victim reasonably believes they are in danger of imminent harm, the Court may issue a Temporary Order of Protection to protect you. In those cases, the Court orders the Temporary Order of Protection and your Family Offense Petition be served upon the alleged abuser and sets a date for both parties to come to Court, in-person or virtually. Those papers may be served by a uniformed New York City Sheriff. 

Evidence Required to Obtain an Order of Protection

In the court appearances that follow, we will have to use evidence to convince the judge to grant a Permanent Order of Protection. Case law and the Family Court Act provide guidance on the evidence required to obtain an Order of Protection in New York. 

“To prevail on her family offense petition, petitioner bore the burden of establishing, by a fair preponderance of the evidence, that respondent committed one of the enumerated family offenses set forth in Family Ct Act § 821 (1) (a)” (Matter of Allen v Emery, 187 AD3d 1339, 1340 [2020] [citation omitted  ]; see Family Ct Act § 832; Matter of Marianna K. v David K., 145 AD3d at 1362; Matter of Elizabeth X. v Irving Y., 132 AD3d 1100, 1101 [2015]). “The question of whether a family offense has been committed presents a factual issue to be resolved by Family Court, and Family Court’s determinations regarding the credibility of witnesses are accorded great weight” (Matter of Allen v Emery, 187 AD3d at 1339 [citation omitted]; see Matter of Jasmin NN. v Jasmin C., 167 AD3d 1274, 1276 [2018]; Matter of Shana SS. v Jeremy TT., 111 AD3d 1090, 1091 [2013], lv denied 22 NY3d 862 [2014]).

The evidence required may include, but are not limited to:

• Affidavits or sworn statements: The petitioner may submit affidavits or sworn statements describing the incidents of abuse or violence, including dates, times, and specific details of the incidents. Affidavits from witnesses who have firsthand knowledge of the abuse may also be submitted.
• Police reports: If the abuse or violence has been reported to law enforcement, police reports can serve as evidence of the incidents.
• Medical records: Medical records documenting injuries or medical treatment related to the abuse or violence can be presented as evidence.
• Photographs or videos: Photographs or videos of injuries, damage to property, or other evidence of abuse or violence can be powerful evidence in obtaining an order of protection.
• Other documentation: Any other relevant documentation, such as emails, text messages, social media posts, or recordings that support the allegations of abuse or violence, may also be presented as evidence.

Evidence	Description
Affidavits or sworn statements	Written statements from the petitioner or witnesses describing incidents of abuse or violence, including dates, times, and specific details.
Police reports	Reports filed with law enforcement documenting incidents of abuse or violence.
Medical records	Records documenting injuries or medical treatment related to the abuse or violence.
Photographs or videos	Visual evidence, such as photos or videos, of injuries, property damage, or other evidence of abuse or violence.
Other documentation	Any other relevant documentation, such as emails, text messages, social media posts, or recordings that support the allegations of abuse or violence.

It’s important to note that hearsay evidence, which is generally an out-of-court statement offered to prove the truth of the matter asserted, may be admissible in family court proceedings for orders of protection. However, the admissibility of hearsay evidence in family court is subject to certain limitations and requirements, as established by case law.

In conclusion, obtaining an order of protection in New York requires providing evidence of abuse or other family offenses. The Family Court Act provides for several types of family offenses that can be the basis for an order of protection. If you or someone you know is experiencing abuse or harassment, it is important to seek legal advice from an experienced family law attorney. At The Law Office of Richard Roman Shum, our team of New York family lawyers may be able to help you navigate the legal system and obtain the protection you need to stay safe. Contact us today at (646) 259-3416 to schedule a consultation.

If you or someone you know is experiencing domestic violence, harassment, or other forms of abuse, you can contact the National Domestic Violence Hotline at 1-800-799-SAFE (7233) for help and support.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/understanding-the-evidence-required-to-obtain-an-order-of-protection-in-new-york/

What is Spousal Support?

A marriage is a financial relationship as much as it is an emotional one. Spouses are expected to support each other financially while they are together. When a couple goes through a divorce, this relationship is also severed. When one spouse in a divorce is at a financial disadvantage, spousal support can be a way to allow them to get back on their feet with the help of their ex-spouse.

As is often the case in a divorce, deciding on matters such as whether to request spousal support or how much support to give can become contentious when emotions are running high. Getting the help of a New York attorney who can protect your best interests is crucial. At the Law Office of Richard Roman Shum, experienced New York spousal support attorney Richard Shum has dedicated his practice to providing individuals with skilled legal advice in navigating divorce. Call us today at (646) 259-3416 to schedule a free consultation.

The Purpose of Spousal Support

Spousal support or alimony is financial assistance one spouse pays to the other even after their marriage is terminated. It is meant to tide over any difficulties a financially dependent spouse may encounter while transitioning from a two-income to a one-income household. 

Spousal support has little to do with gender roles and everything to do with each spouse’s financial security after the divorce. Spousal support is also seen as a way to help spouses who worked in the home or postponed their careers to look after their family to look for a job that can support their existing standard of living.

As a no-fault divorce state, it is not necessary for a divorce to have fault-based grounds before a spouse can be awarded spousal support.

How is Spousal Support Awarded?

In New York, a couple who is divorcing may negotiate whether and how much spousal support is necessary. If they cannot reach an agreement, either spouse may file a spousal support petition in Family Court and seek the court’s intervention in deciding the matter of spousal support.

When seeking a divorce, each couple’s financial records are submitted to the court. This information will be used in determining how much spousal support can be given. Spousal support payments can be a significant financial concern for the payor spouse. While no one gets into a marriage expecting a divorce, it is reasonable to speak about it with your spouse in advance or create legal safeguards that can protect you and your spouse from future issues.

Spousal support can be awarded before the divorce is finalized, and is usually given by the higher-earning spouse to the other. Temporary spousal support ends once the court has decided upon terms of spousal maintenance, usually when the divorce proceedings conclude.

Spousal support payments are different from child support. You can receive alimony even if you do not have a child with your ex-spouse, but the amount you will receive from your spouse if they are also paying for child support may be less.

The court uses baseline guidelines on how much spousal support, or maintenance, must be awarded but will factor in considerations such as the following:

• Each spouse’s income
• Any assets or property they own or received during the divorce
• Each spouse’s health and age
• Each spouse’s contributions to their household 
• Any parental obligations that caused a spouse to postpone their career
• Each spouse’s wage-earning capacity – any current or prior experience, academic achievements, etc.
• How long a couple has been married

In cases of high-net-worth individuals, the court may order a deviation in the spousal support computation. Prenuptial and postnuptial agreements will also be honored if a couple has previously discussed and agreed upon the subject of spousal support.

Spousal maintenance refers to post-divorce financial support a financially disadvantaged individual will receive from their ex-spouse. It can either be durational or non-durational. 

• Non-durational alimony effectively lasts until the receiving spouse gets remarried, or either spouse passes away. 
• Durational alimony lasts for a fixed amount of time depending on how long the couple has been married but may be terminated once the receiving spouse gets remarried or either spouse passes away.

Non-durational alimony is often given in cases where the spouses have been married for a long time and one of the spouses has not established a career due to taking care of the family or supporting the other spouse’s career. Awarding of non-durational alimony depends on whether the financially dependent spouse still has the capacity to earn a wage and build a career to support themselves.

It is crucial to follow a spousal support order once it is given by the court. While it is understandable that the payor spouse may have some qualms about providing for their ex-spouse, especially if the divorce has been difficult, purposefully ignoring a spousal support order or engaging in fraudulent behavior to avoid paying spousal support can result in dire legal consequences. 

Before you make any decisions about alimony, it is important to consult with an experienced New York spousal support attorney who can walk you through the processes involved. An attorney can represent your interests in alimony negotiations and also help you enforce a spousal support order, if necessary.

At the Law Office of Richard Roman Shum, we understand the financial impact of divorce and offer quality legal counsel and representation to individuals going through this difficult time. We provide assistance in filing spousal support petitions, whether temporary or post-divorce, and can also help in seeking spousal support order modifications. Our skilled New York spousal attorneys are ready to assist. Call us today at (646) 259-3416 to schedule a free consultation or fill out our online form.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/what-is-spousal-support/

How To Avoid Paying Alimony in New York

Alimony or spousal support is financial assistance provided by a person to their spouse. The amount and frequency of alimony payments are decided by either the couple themselves through negotiations or by a judge who has evaluated the couple’s case. 

If you earn more than your spouse, the court may be more likely to assign you the role of “monied spouse,” charged with providing your spouse with alimony. While this is not always the case, having to provide spousal maintenance can prevent you from fully moving on and building a new life after your divorce.

An experienced New York spousal support attorney may be able to help you learn more about your rights and your options on how to modify your alimony order or explore legal ways to stop paying it entirely. At the Law Office of Richard Roman Shum, skilled New York divorce attorney Richard Shum offers quality legal assistance in matters of spousal support and other aspects of divorce. To learn more about how we can help you modify an alimony order, call us today at (646) 259-3416 to schedule a free consultation.

How To Determine Who Qualifies for Spousal Support

In New York, the court usually assigns spousal support depending on the financial capability of each spouse. The court will prioritize giving alimony to a spouse who can demonstrate that they have a financial need for support. The court initially only order alimony on a temporary basis depending on the time the court determines would be enough for the payee spouse to get back on their feet. 

There are three types of alimony in New York:

• Temporary spousal support
• Post-divorce alimony
• Permanent or “non-durational” alimony

Temporary Alimony in New York

Temporary alimony in New York lasts during the duration of the divorce proceedings themselves. New York courts have a formula they use to calculate the suggested amount of temporary alimony. If the court determines the baseline support determined by the calculator to be unjust or inappropriate, a judge can increase or decrease the amount as they see fit.

The amount of temporary alimony is determined by each party’s income (up to $203,000 of the spouses’ net income) and whether the payor spouse will also have to pay child support on top of paying alimony. Temporary alimony does not affect the court’s decision regarding the awarding of post-divorce spousal maintenance. 

Temporary alimony ends when the divorce is final or either spouse passes away.

Post-divorce Alimony

Post-divorce alimony or spousal maintenance can either be durational or non-durational. Durational alimony lasts for a fixed amount of time depending on how long the couple has been married:

• 15% – 30% of the time married for couples married for less than or equal to 15 years
• 30% – 40% of the time married for couples married for more than 15 years but less than 20 years
• 35% – 50% of the time married for couples married for more than 20 years

The calculation based on the duration of the marriage can be treated by a judge as a jumping-off point when deciding the duration of alimony. A judge can also use other factors (N.Y. Dom. Rel. Law § 236(6)(e) (2022)) to determine how long they can award alimony:

• Age and health of each spouse
• Each spouse’s present and future earning capacity
• Any child support award on top of spousal support
• Wasteful or unjust use of marital property
• Whether the spouses were living together before marriage or living separately before the divorce
• Any acts committed by one spouse to the other that prevented them from obtaining meaningful employment such as financial abuse or domestic violence
• Whether the spouses have medical insurance
• Whether a spouse was prevented from continuing a career due to care for children or other family members
• Tax consequences to each spouse
• The couple’s standard of living during the marriage
• Whether a payee spouse gave up or delayed further education or career opportunities in favor of the marriage
• Distribution of marital assets and whether each spouse can get any income from the properties
• Contributions or services of a payee spouse to the payor such as taking care of the household so that the payor can focus on their career
• Any factor the court believes is justifiable to take into consideration

For high-earners, any amount above the $203,000 previously considered would not affect the baseline calculation unless the judge determines that following the baseline is unjust or inappropriate. If the court decides that a deviation from the baseline is in order, the new amount will be put in writing including the reasoning and the factors the court used to come to that determination.

A post-divorce award lasts until the term of the alimony runs its course, the award is modified, either spouse dies, or the payee spouse remarries. In some cases, it may be changed when a payee spouse starts cohabitating with another person. (N.Y. Dom. Rel. § 236B(a))

Permanent Alimony in New York

In cases where the couple has been married for a long time and one of the spouses has never had the opportunity to build a career to take care of the family or because the other spouse had a high income. The court can also award non-durational alimony under the following circumstances:

• Age – If the payee spouse was not able to support themselves due to stopping their career to take care of the house or children, and they are at an age wherein it would be difficult to reenter the workforce, they may be awarded alimony. Permanent alimony can also be awarded if the judge decides that the assets the payee spouse would get in the divorce would not be enough to support them financially.
• Medical need – If a payee spouse has a severe medical condition or has a disability that prevents them from being self-sufficient, the court can award them permanent alimony
• Financial dependence – If the judge determines that the payee spouse does not have the ability to become financially independent for any reason, the court can award them permanent alimony

Non-durational alimony in New York will end if either spouse dies or the payee spouse remarries. It can also end if there are changes in the quality of life of either the payor or the payee spouse.

How Is Alimony Paid in New York?

New York courts typically order spousal support to be paid in a monthly fashion. Depending on the spouses’ agreement, they can arrange a monthly direct deposit payment without interference from the court. In cases where the spouses cannot agree on the schedule and the method of payments, the court can instead arrange an income withholding order from the payor spouse’s account to ensure the collection of alimony payments.

Should a payor spouse miss payments, the payee spouse can file a formal complaint with the court and request an order to collect the missed payments. 

Lump sum payments of alimony can also be awarded subject to a court order or the spouses’ agreement. Before choosing to pay a lump sum for your alimony payment, you should consider the tax implications of doing so. Your spouse may also remarry before the ordered duration of the alimony payments are due, forfeiting the alimony. Before you make any decisions, it is important to seek the help of an experienced New York spousal support attorney. 

At the Law Office of Richard Roman Shum, our attorneys work hard to provide quality legal support and representation to clients involved in matters of family law. Our skilled New York spousal support attorneys may be able to guide you through the roles and responsibilities of being a payor spouse in an alimony case. Call us today at (646) 259-3416 to schedule a free consultation.

How To Avoid Paying Alimony

Paying alimony can be a considerable financial strain to the payor spouse. If the divorce is highly contentious, having to pay spousal support or maintenance may feel like rubbing salt into the wound. However, not paying alimony after being ordered to by the court can result in devastating consequences. 

Approaching the matter of avoiding alimony should be done with careful consideration of the factors surrounding your divorce. There are also some practical and legal methods you can utilize to avoid having to pay spousal support or maintenance in New York.

Creating a Prenuptial or Postnuptial Agreement

A prenuptial agreement can explicitly establish the assets and liabilities each spouse will bring into the marriage. A prenuptial agreement can also include a financial statement from each spouse and lay out exactly which asset belongs to which spouse. 

If you have already finalized your marriage, you can also create a postnuptial agreement. A postnuptial contains essentially the same information as a prenuptial agreement, but is created after the marriage.

You should consider having a skilled New York marital agreement attorney draft your documents to make sure they will be enforced by a judge. Having the help of an experienced attorney can ensure that your best interests are protected in the agreement and that it is legally binding.

Give Your Spouse Assets Instead of Spousal Support

If the possibility of creating a prenuptial or a postnuptial agreement is moot due to disagreements with your spouse, you may consider negotiating with your spouse and giving them a larger share of the marital assets, assets that give off income, your marital home, or a bigger chunk of any retirement funds you share.

The court may also decide more favorably on your behalf if you keep friendly communication with your spouse as it shows your willingness to cooperate and negotiate on the specifics of your divorce.

Request a Vocational Evaluation From the Court

If you have reason to believe that your spouse is remaining as a stay-at-home parent even if it is not strictly necessary, you may be able to request the court to conduct a vocational evaluation. A vocational evaluation carefully considers your spouse’s wage-earning capacity and whether they can reenter the workplace with ease after the divorce. 

There is still a chance that the court will require you to pay temporary alimony until the divorce is finalized. While this may feel like a personal offense, especially if the divorce is contentious, it is important to remember that alimony payments are intended to help your spouse get back on their feet and allow themselves to be financially independent. Short-term alimony is a small price to pay, especially if your spouse gave up or postponed career opportunities to help establish your family or advance your career.

Submit Proof That Your Spouse Does Not Require Spousal Maintenance

There are cases in which an ex-spouse would only use obtaining spousal maintenance payments to get back to their ex meaning they don’t require the money to maintain their standard of living. Perhaps your spouse has access to a large inheritance or savings account, or perhaps a trust fund with a large stock portfolio. If this is the case, you may be able to seek legal assistance to declare your and your spouse’s complete financial statements and remove any doubt that your spouse can manage even without spousal maintenance.

Reduce Your Spending Where Possible

Given that getting a divorce can be a financially intensive process, it’s likely that you have already made a lot of lifestyle changes to accommodate that cost. It may be a good idea to evaluate your expenses, making sure to live within your means. If your spouse petitions the court for alimony, your monthly expenses and income will be among the factors considered by the judge in determining whether to award spousal support or maintenance.

Another important factor to consider is to never waste marital assets while in the process of finalizing your divorce. While you may feel like it is within your right to spend your marital funds as a result of the divorce, financially irresponsible acts can count as a demerit against you when the court is evaluating whether to award alimony to your spouse.

File Your Divorce Sooner Rather Than Later

It can be ridiculous to think of divorce as the solution to a disagreement, compared to working things through. However, dragging your feet in filing a divorce can cause you more heartache and a longer duration of alimony payments, given that the length of a marriage is a factor in determining the duration of alimony. If you feel that your marriage is not going to last, it may be best to file for a divorce as soon as you can.

Stay Informed About Your Spouse’s Relationships

You will no longer be required to pay spousal maintenance if your ex-spouse has remarried. If your spouse has begun cohabitating with a new partner, you may be able to stop paying as well. You should get the advice of your New York divorce attorney to determine whether you are required to continue paying spousal maintenance after your ex-spouse has begun living together with a new partner.

File a Fault Divorce

New York laws allow the filing of fault divorces, meaning a spousal act was the reason for the breakdown of the marriage. If you are a victim of spousal abuse or if your spouse was adulterous, you can file a fault divorce to lessen the chances of them being awarded alimony. You will need to provide proof of the wrongdoing to support your claim. The judge will also be the one to decide whether the fault-based grounds for the divorce have merit. 

Working with an experienced New York contested divorce attorney who can protect your best interests and help you understand your rights under the law is essential. New York contested divorce attorney Richard Shum may be able to walk you through the process of filing a fault-based divorce. Our attorneys at the Law Office of Richard Roman Shum provide quality legal counsel and aggressive representation in the interest of protecting our clients’ rights. Call us today at (646) 259-3416 to schedule a free consultation.

How Do I Modify an Alimony Order or Stop Paying if I Have Already Been Ordered by the Court?

The main purpose of alimony and spousal maintenance is to help your spouse get back on their feet after a divorce. In most cases, awarding alimony is not meant to be a punishment to the payor spouse. You have the right to petition the court to modify the spousal support originally awarded to your spouse if:

• You experience financial hardship as a result of a lifestyle change
  • You retire
  • You lose your job or make less money than you did before the divorce was finalized
• Your spouse has gotten a job and become financially independent 
• Your spouse remarries
• You contract an illness or sustain a disability that keeps you from working

These grounds may be useful, especially if the court has awarded permanent alimony to your spouse. However, if your financial hardship is self-induced, meaning you quit your job and became unemployed just to avoid paying alimony, the court may disregard your petition and order you to continue paying the same amount of spousal support or maintenance. 

Get the Help of an Experienced New York Spousal Support Attorney

Stopping the payment of alimony out of the blue can have enormous legal repercussions. Without a valid reason and without following the appropriate legal processes to modify your spousal support order, the court can order your wages to be garnished and use it to pay your outstanding payments. Any tax refund you receive may also be seized to pay for spousal support. In the worst-case scenario, a judge can hold you in contempt of court and sentence you to jail.

Richard Shum, a top-rated New York spousal support attorney, may be able to help you petition a modification of your spousal support order. At the Law Office of Richard Roman Shum, we understand the importance of being able to start anew after a divorce. This can be challenging if you are experiencing a financial strain in the form of having to pay spousal support.

Our skilled attorneys can help determine the legal options available for you to avoid paying a large amount of money for alimony or avoid paying it entirely. To schedule a complimentary consultation with one of our experienced New York spousal support attorneys, call us today at (646) 259-3416.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/how-to-avoid-paying-alimony-in-new-york/

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