ARTICLE 1 Short Title; Definitions
Short title. This chapter shall be known as the "Domestic
Relations Law."
Definitions. A "minor" or "infant", as used in this chapter, is
a person under the age of eighteen years.
ARTICLE 2 Marriages
Incestuous and void marriages. A marriage is incestuous and void
whether the relatives are legitimate or illegitimate between either:
1. An ancestor and a descendant;
2. A brother and sister of either the whole or the half blood;
3. An uncle and niece or an aunt and nephew.
If a marriage prohibited by the foregoing provisions of this section
be solemnized it shall be void, and the parties thereto shall each be
fined not less than fifty nor more than one hundred dollars and may, in
the discretion of the court in addition to said fine, be imprisoned for
a term not exceeding six months. Any person who shall knowingly and
wilfully solemnize such marriage, or procure or aid in the solemnization
of the same, shall be deemed guilty of a misdemeanor and shall be fined
or imprisoned in like manner.
Void marriages. A marriage is absolutely void if contracted by a
person whose husband or wife by a former marriage is living, unless
either:
1. Such former marriage has been annulled or has been dissolved for a
cause other than the adultery of such person; provided, that if such
former marriage has been dissolved for the cause of the adultery of such
person, he or she may marry again in the cases provided for in section
eight of this chapter and such subsequent marriage shall be valid;
3. Such former marriage has been dissolved pursuant to section seven-a
of this chapter.
Voidable marriages. A marriage is void from the time its nullity
is declared by a court of competent jurisdiction if either party
thereto:
1. Is under the age of legal consent, which is eighteen years;
2. Is incapable of consenting to a marriage for want of understanding;
3. Is incapable of entering into the married state from physical
cause;
4. Consent to such marriage by reason of force, duress or fraud;
5. Has been incurably mentally ill for a period of five years or more.
Marriage after divorce. Whenever, and whether prior or subsequent
to September first, nineteen hundred sixty-seven, a marriage has been
dissolved by divorce, either party may marry again.
ARTICLE 3 Solemnization, Proof and Effect of Marriage
Marriage a civil contract. Marriage, so far as its validity in
law is concerned, continues to be a civil contract, to which the consent
of parties capable in law of making a contract is essential.
Parties to a marriage. 1. A marriage that is otherwise valid
shall be valid regardless of whether the parties to the marriage are of
the same or different sex.
2. No government treatment or legal status, effect, right, benefit,
privilege, protection or responsibility relating to marriage, whether
deriving from statute, administrative or court rule, public policy,
common law or any other source of law, shall differ based on the parties
to the marriage being or having been of the same sex rather than a
different sex. When necessary to implement the rights and
responsibilities of spouses under the law, all gender-specific language
or terms shall be construed in a gender-neutral manner in all such
sources of law.
Religious exception. 1. Notwithstanding any state, local or
municipal law, rule, regulation, ordinance, or other provision of law to
the contrary, a religious entity as defined under the education law or
section two of the religious corporations law, or a corporation
incorporated under the benevolent orders law or described in the
benevolent orders law but formed under any other law of this state, or a
not-for-profit corporation operated, supervised, or controlled by a
religious corporation, or any employee thereof, being managed, directed,
or supervised by or in conjunction with a religious corporation,
benevolent order, or a not-for-profit corporation as described in this
subdivision, shall not be required to provide services, accommodations,
advantages, facilities, goods, or privileges for the solemnization or
celebration of a marriage. Any such refusal to provide services,
accommodations, advantages, facilities, goods, or privileges shall not
create any civil claim or cause of action or result in any state or
local government action to penalize, withhold benefits, or discriminate
against such religious corporation, benevolent order, a not-for-profit
corporation operated, supervised, or controlled by a religious
corporation, or any employee thereof being managed, directed, or
supervised by or in conjunction with a religious corporation, benevolent
order, or a not-for-profit corporation.
2. Notwithstanding any state, local or municipal law or rule,
regulation, ordinance, or other provision of law to the contrary,
nothing in this article shall limit or diminish the right, pursuant to
subdivision eleven of section two hundred ninety-six of the executive
law, of any religious or denominational institution or organization, or
any organization operated for charitable or educational purposes, which
is operated, supervised or controlled by or in connection with a
religious organization, to limit employment or sales or rental of
housing accommodations or admission to or give preference to persons of
the same religion or denomination or from taking such action as is
calculated by such organization to promote the religious principles for
which it is established or maintained.
3. Nothing in this section shall be deemed or construed to limit the
protections and exemptions otherwise provided to religious organizations
under section three of article one of the constitution of the state of
New York.
By whom a marriage must be solemnized. No marriage shall be
valid unless solemnized by either:
1. A clergyman or minister of any religion, or by the senior leader,
or any of the other leaders, of The Society for Ethical Culture in the
city of New York, having its principal office in the borough of
Manhattan, or by the leader of The Brooklyn Society for Ethical Culture,
having its principal office in the borough of Brooklyn of the city of
New York, or of the Westchester Ethical Society, having its principal
office in Westchester county, or of the Ethical Culture Society of Long
Island, having its principal office in Nassau county, or of the
Riverdale-Yonkers Ethical Society having its principal office in Bronx
county, or by the leader of any other Ethical Culture Society affiliated
with the American Ethical Union; provided that no clergyman or minister
as defined in section two of the religious corporations law, or Society
for Ethical Culture leader shall be required to solemnize any marriage
when acting in his or her capacity under this subdivision.
1-a. A refusal by a clergyman or minister as defined in section two of
the religious corporations law, or Society for Ethical Culture leader to
solemnize any marriage under this subdivision shall not create a civil
claim or cause of action or result in any state or local government
action to penalize, withhold benefits or discriminate against such
clergyman or minister.
2. The current or a former governor, a mayor of a village, a county
executive of a county, or a mayor, recorder, city magistrate, police
justice or police magistrate of a city, a former mayor or the city clerk
of a city of the first class of over one million inhabitants or any of
his or her deputies or not more than four regular clerks, designated by
him or her for such purpose as provided in section eleven-a of this
article, except that in cities which contain more than one hundred
thousand and less than one million inhabitants, a marriage shall be
solemnized by the mayor, or police justice, and by no other officer of
such city, except as provided in subdivisions one and three of this
section.
2-a. A member of the New York state legislature, provided that such
person shall not charge or receive a fee.
3. A judge of the federal circuit court of appeals for the second
circuit, a judge of a federal district court for the northern, southern,
eastern or western district of New York, a judge of the United States
court of international trade, a federal administrative law judge
presiding in this state, a justice or judge of a court of the unified
court system, a housing judge of the civil court of the city of New
York, a retired justice or judge of the unified court system or a
retired housing judge of the civil court of the city of New York
certified pursuant to paragraph (k) of subdivision two of section two
hundred twelve of the judiciary law, the clerk of the appellate division
of the supreme court in each judicial department, a retired city clerk
who served for more than ten years in such capacity in a city having a
population of one million or more or a county clerk of a county wholly
within cities having a population of one million or more; or,
3-a. A judge or peacemaker judge of any Indian tribal court, a chief,
a headman, or any member of any tribal council or other governing body
of any nation, tribe or band of Indians in this state duly designated by
such body for the purpose of officiating at marriages, or any other
persons duly designated by such body, in keeping with the culture and
traditions of any such nation, tribe or band of Indians in this state,
to officiate at marriages.
3-b. A one-day marriage officiant, as designated by a town or city
clerk pursuant to section eleven-d of this article; or,
4. A written contract of marriage signed by both parties and at least
two witnesses, all of whom shall subscribe the same within this state,
stating the place of residence of each of the parties and witnesses and
the date and place of marriage, and acknowledged before a judge of a
court of record of this state by the parties and witnesses in the manner
required for the acknowledgment of a conveyance of real estate to
entitle the same to be recorded.
5. Notwithstanding any other provision of this article, where either
or both of the parties is under the age of eighteen years a marriage
shall be solemnized only by those authorized in subdivision one of this
section or by (1) the mayor of a city or village, or county executive of
a county, or by (2) a judge of the federal circuit court of appeals for
the second circuit, a judge of a federal district court for the
northern, southern, eastern or western district of New York, a judge of
the United States court of international trade, or a justice or a judge
of a court of the unified court system, or by (3) a housing judge of the
civil court of the city of New York, or by (4) a former mayor or the
clerk of a city of the first class of over one million inhabitants or
any of his or her deputies designated by him or her for such purposes as
provided in section eleven-a of this chapter.
6. Notwithstanding any other provisions of this article to the
contrary no marriage shall be solemnized by a public officer specified
in this section, other than a judge of a federal district court for the
northern, southern, eastern or western district of New York, a judge of
the United States court of international trade, a federal administrative
law judge presiding in this state, a judge or justice of the unified
court system of this state, a housing judge of the civil court of the
city of New York, or a retired judge or justice of the unified court
system or a retired housing judge of the civil court certified pursuant
to paragraph (k) of subdivision two of section two hundred twelve of the
judiciary law, nor by any of the persons specified in subdivision
three-a of this section, outside the territorial jurisdiction in which
he or she was elected, appointed or duly designated. Such a public
officer, however, elected or appointed within the city of New York may
solemnize a marriage anywhere within such city.
7. The term "clergyman" or "minister" when used in this article, shall
include those defined in section two of the religious corporations law.
The word "magistrate," when so used, includes any person referred to in
the second or third subdivision.
Duty of city clerk in certain cities of the first class;
facsimile signature of said clerk authorized. 1. a. The city clerk of a
city of the first class of over one million inhabitants may designate in
writing any or all of the deputy city clerks and from among the
permanent members of the city clerk's staff as many staff members as the
city clerk deems necessary to perform marriage ceremonies, which
designation shall be in writing and be filed in the office of such city
clerk. The day of such filing shall be endorsed on the designation. Any
such designation shall be and remain in effect for six months from the
filing thereof.
b. Whenever persons to whom the city clerk of any such city of the
first class shall have issued a marriage license shall request him to
solemnize the rites of matrimony between them and present to him such
license it shall be the duty of such clerk, either in person or by one
of his deputies or the permanent members of his staff so designated by
him to solemnize such marriage; provided, however, that nothing
contained either in this section or in subdivision two of section eleven
of this chapter shall be construed as empowering or requiring either the
said city clerk or any of his designated deputies or the permanent
members of his staff so designated to solemnize marriages at any place
other than at the office of such city clerk.
d. In all cases in which the city clerk of such city or one of his
deputies or the permanent members of his staff so designated shall
perform a marriage ceremony such official shall demand and be entitled
to collect therefor a fee to be fixed by the council of the city of New
York not exceeding twenty-five dollars, which sum shall be paid by the
contracting parties before or immediately upon the solemnization of the
marriage; and all such fees so received shall be paid over to the
commissioner of finance of the city.
2. The signature and seal of said clerk of cities of the first class
of over one million inhabitants upon the marriage license, certificate
of marriage, registration, and marriage search provided by this article
may be a facsimile imprinted, stamped, or engraved thereon.
3. The said clerk of cities of the first class of one million
inhabitants or more may designate among the permanent members of his
staff one or more individuals who shall be permitted to sign his name
and affix his official seal upon the marriage license, certificate of
marriage registration, and marriage search provided by this article
requiring the signature and seal of the city clerk.
Registration of persons performing marriage ceremonies in the
city of New York. Every person authorized by law to perform the
marriage ceremony, before performing any such ceremonies in the city of
New York, shall register his or her name and address in the office of
the city clerk of the city of New York. Every such person, before
performing any marriage ceremonies subsequent to a change in his or her
address, shall likewise register such change of address. Such city
clerk is hereby empowered to cancel the registration of any person so
registered upon satisfactory proof that the registration was fraudulent,
or upon satisfactory proof that such person is no longer entitled to
perform such ceremony.
Marriage officers. 1. Notwithstanding the provisions of
section eleven of this article or any other law, the governing body of
any village, town, or city may appoint one or more marriage officers who
shall have the authority to solemnize a marriage which marriage shall be
valid if performed in accordance with other provisions of law. Nothing
herein contained shall nullify the authority of other persons authorized
to solemnize marriages.
2. The number of such marriage officers appointed for a municipality
shall be determined by the governing body of the municipality. Such
marriage officers shall be eighteen years of age or over, and they shall
reside in the municipality by which they are appointed. A marriage
officer shall have the authority to solemnize a marriage within the
territory of the municipality which makes the appointment.
3. A marriage officer may receive a salary or wage in an amount to be
determined by the governing body of the municipality which appoints him
or her. In the event that a marriage officer receives a salary or wage,
he or she shall not receive any remuneration or consideration from any
other source for performing his or her duties. In the event that a
marriage officer does not receive a salary or wage, he or she may accept
and keep up to seventy-five dollars for each marriage at which he or she
officiates, paid by or on behalf of the persons married.
4. The term of office of a marriage officer shall be as determined by
the governing body which makes the appointment but shall not exceed four
years. A marriage officer shall serve at the pleasure of the appointing
authority and may be removed from office with or without cause on ten
days written notice filed with the clerk of the municipality and sent by
registered mail return receipt requested to the marriage officer.
One-day marriage officiant license. 1. A town or city clerk
shall issue a one-day marriage officiant license upon request. Such
one-day marriage officiant shall have the authority to solemnize a
marriage which marriage shall be valid if performed in accordance with
other provisions of law. Nothing herein contained shall nullify the
authority of other persons authorized to solemnize marriages.
2. Such one-day marriage officiant shall be eighteen years of age or
over and need not be a resident of the town or city to which they apply
or a resident of the state. A one-day marriage officiant shall have the
authority to solemnize a marriage anywhere in the state.
3. An applicant for a one-day marriage officiant license must apply
for such license in the same town or city clerk's office as the couple
to be married. Such applicant shall not be required to personally
appear.
4. A town or city clerk shall be entitled to a fee of twenty-five
dollars for issuing a one-day marriage officiant license. Such license
shall be issued only after payment of such fee and submission of a
completed application form.
5. The application form shall require the following information of the
applicant: name, date of birth, address, email address and telephone
number. The application form shall also require the following
information of the parties to be married: names, dates of birth, and
addresses as they appear on the application for a marriage license.
6. Such license shall only be valid for the parties to be married as
stated on the application and shall expire upon the earlier of either
completion of such solemnization or the expiration of the marriage
license.
7. One-day marriage officiants shall be exempt from registration as
required pursuant to section eleven-b of this article.
Marriage, how solemnized. No particular form or ceremony is
required when a marriage is solemnized as herein provided by a clergyman
or magistrate, or one-day marriage officiant as designated by a town or
city clerk pursuant to section eleven-d of this article, but the parties
must solemnly declare in the presence of a clergyman, magistrate, or
such one-day marriage officiant and the attending witness or witnesses
that they take each other as spouses. In every case, at least one
witness beside the clergyman, magistrate, or such one-day marriage
officiant must be present at the ceremony.
The preceding provisions of this chapter, so far as they relate to the
manner of solemnizing marriages, shall not affect marriages among the
people called friends or quakers; nor marriages among the people of any
other denominations having as such any particular mode of solemnizing
marriages; but such marriages must be solemnized in the manner
heretofore used and practiced in their respective societies or
denominations, and marriages so solemnized shall be as valid as if this
article had not been enacted.
Marriage licenses. It shall be necessary for all persons
intended to be married in New York state to obtain a marriage license
from a town or city clerk in New York state and to deliver said license,
within sixty days, to the clergyman, magistrate, or one-day marriage
officiant as designated by a town or city clerk pursuant to section
eleven-d of this article who is to officiate before the marriage
ceremony may be performed. In case of a marriage contracted pursuant to
subdivision four of section eleven of this chapter, such license shall
be delivered to the judge of the court of record before whom the
acknowledgment is to be taken. If either party to the marriage resides
upon an island located not less than twenty-five miles from the office
or residence of the town clerk of the town of which such island is a
part, and if such office or residence is not on such island such license
may be obtained from any justice of the peace residing on such island,
and such justice, in respect to powers and duties relating to marriage
licenses, shall be subject to the provisions of this article governing
town clerks and shall file all statements or affidavits received by him
while acting under the provisions of this section with the town clerk of
such town. No application for a marriage license shall be denied on the
ground that the parties are of the same, or a different, sex.
Test to determine the presence of sickle cell anemia. 1. On
and after the effective date of this act, such test as may be necessary
shall be given to each applicant for a marriage license who is not of
the Caucasian, Indian or Oriental race for the purposes of discovering
the existence of sickle cell anemia and notifying the applicant of the
results of such test.
2. No application for a marriage license shall be denied solely on
the ground that such test proves positive, nor shall the absence of such
test invalidate a marriage.
3. The provisions of this section shall not apply to any person who
refuses to take such test because of his religious beliefs.
Time within which marriage may be solemnized. A marriage shall
not be solemnized within twenty-four hours after the issuance of the
marriage license, unless authorized by an order of a court of record as
hereinafter provided, nor shall it be solemnized after sixty days from
the date of the issuance of the marriage license unless authorized
pursuant to section ten of the veterans' services law. Every license to
marry hereafter issued by a town or city clerk, in addition to other
requirements specified by this chapter, must contain a statement of the
day and the hour the license is issued and the period during which the
marriage may be solemnized. It shall be the duty of the clergyman,
magistrate, or one-day marriage officiant, as designated by a town or
city clerk pursuant to section eleven-d of this article, performing the
marriage ceremony, or if the marriage is solemnized by written contract,
of the judge before whom the contract is acknowledged, to annex to or
endorse upon the marriage license the date and hour the marriage is
solemnized. A judge or justice of the supreme court of this state or the
county judge of the county in which either party to be married resides,
or the judge of the family court of such county, if it shall appear from
an examination of the license and any other proofs submitted by the
parties that one of the parties is in danger of imminent death, or by
reason of other emergency public interest will be promoted thereby, or
that such delay will work irreparable injury or great hardship upon the
contracting parties, or one of them, may, make an order authorizing the
immediate solemnization of the marriage and upon filing such order with
the clergyman, magistrate, or one-day marriage officiant performing the
marriage ceremony, or if the marriage is to be solemnized by written
contract, with the judge before whom the contract is acknowledged, such
clergyman, magistrate or such one-day marriage officiant may solemnize
such marriage, or such judge may take such acknowledgment as the case
may be, without waiting for such three day period and twenty-four hour
period to elapse. The clergyman, magistrate, judge, or such one-day
marriage officiant, as designated by a town or city clerk pursuant to
section eleven-d of this article, must file such order with the town or
city clerk who issued the license within five days after the marriage is
solemnized. Such town or city clerk must record and index the order in
the book required to be kept by him or her for recording affidavits,
statements, consents and licenses, and when so recorded the order shall
become a public record and available in any prosecution under this
section. A person who shall solemnize a marriage in violation of this
section shall be guilty of a misdemeanor and upon conviction thereof
shall be punished by a fine of fifty dollars for each offense, and in
addition thereto, his or her right to solemnize a marriage shall be
suspended for ninety days.
* § 13-c. Twenty-four hour provision waived in certain cases. 1.
Notwithstanding the provisions of section thirteen-b of this chapter or
any other provision of law, where either of the parties making
application for a marriage license pursuant to section thirteen of this
chapter, is a member of the armed forces of the United States the
marriage of the parties may be solemnized without waiting for the lapse
of the twenty-four hour period required by section thirteen-b of this
chapter. Proof that the applicant is a member of the armed forces of
the United States shall be furnished to the satisfaction of the official
issuing the marriage license. Every license to marry issued pursuant to
the provisions of this section must state the day and hour the license
is issued and shall contain a recital that it is issued pursuant to the
provisions of this section and that the parties named therein may be
married at any time after such day and hour and within sixty days
thereafter.
2. The provisions of this section shall remain in force and effect
only until July first, nineteen hundred seventy-three.
* NB Expired July 1, 1973
Duty of clerk issuing marriage license. 1. It shall be the
duty of each town and each city clerk or duly authorized deputy acting
in the clerk's stead, upon the issuance of a marriage license to display
to the parties a typed or printed statement containing substantially the
same following information:
"Rubella, also known as 'German measles', is a common childhood
disease. It is usually not serious to children who contract it
themselves, but can be a tragic crippler of unborn babies if transmitted
to pregnant women.
Rubella infection poses a grave threat to the unborn child, especially
during the first four months of pregnancy. It can lead to miscarriage,
stillbirth, or one or all of the tragic defects such as deafness,
blindness, crippling congenital heart disease, developmental disability
and muscular and bone defects.
In order to be immune to rubella, one must either receive the rubella
vaccine or actually have had the disease. To see whether you are
susceptible to rubella, you can get a blood test from your doctor. Even
more important is the availability of a rubella vaccine which will
prevent you from ever contracting the disease.
In order to protect yourself, your family, and your friends, please
take steps to prevent the tragic effects of rubella. Please contact your
family doctor, health care provider, public health facility or clinic
for further information."
2. It shall also be the duty of each town and city clerk or duly
authorized deputy acting in the clerk's stead to provide to each
applicant for a marriage license information regarding the Thalassemia
Trait. The department of health shall prepare information, including but
not limited to, the blood disorder Thalassemia Trait and other inherited
conditions affecting the population of New York state.
3. No cause of action for damages shall arise in favor of any person
or person yet to be born by reason of any failure to comply with the
provisions of this section.
Town and city clerks to issue marriage licenses; form. The town
or city clerk of each and every town or city in this state is hereby
empowered to issue marriage licenses to any parties applying for the
same who may be entitled under the laws of this state to apply therefor
and to contract matrimony, authorizing the marriage of such parties,
which license shall be substantially in the following form:
State of New York
County of ................
City or town of ..........
Know all men by this certificate that any person authorized by law to
perform marriage ceremonies within the state of New York to whom this
may come, he not knowing any lawful impediment thereto, is hereby
authorized and empowered to solemnize the rites of matrimony between
.............. of ........... in the county of ............. and state of
New York and .................. of ................... in the county of
.............. and state of New York and to certify the same to the said
parties or either of them under his hand and seal in his ministerial or
official capacity and thereupon he is required to return his certificate
in the form hereto annexed. The statements endorsed hereon or annexed
hereto, by me subscribed, contain a full and true abstract of all of the
facts concerning such parties disclosed by their affidavits or verified
statements presented to me upon the application for this license. This
certificate is to be returned addressed to the undersigned at
...................., ............................, .................
(Street) (City, Town, Village) (State)
In testimony whereof, I have hereunto set my hand and affixed the seal
of said town or city at .......... this ....... day of ........
nineteen ........, at........m. Seal.
The form of the certificate annexed to said license and therein
referred to shall be as follows:
I, .... a ....., residing at ......... in the county of ........ and
state of New York do hereby certify that I did on this ......... day of
..... in the year, nineteen ......... at .....m, at ....... in the county
of .......... and the state of New York, solemnize the rites of
matrimony between .... of ..... in the county of ........... and state
of New York, and .... of ..... in the county of ............. and state
of New York in the presence of ..... and ..... as witness, and the
license therefor is hereto annexed.
Witness my hand ...... in the county of ....... this ....... day of
......, nineteen .....
In the presence of
...............
...............
...............
There shall be endorsed upon the license or annexed thereto at the end
thereof, subscribed by the clerk, an abstract of the facts concerning
the parties as disclosed in their affidavits or verified statements at
the time of the application for the license made in conformity to the
provisions of section fifteen of this chapter.
There shall also be stated upon the license the exact period during
which the marriage may be solemnized.
The license issued, including the abstract of facts, and the
certificate duly signed by the person who shall have solemnized the
marriage therein authorized, shall be returned by him, and where the
marriage is solemnized by a written contract, the judge before whom
acknowledgment is made shall forward such contract and marriage license
to the office of the town or city clerk who issued the license within
five days succeeding the date of the solemnizing of the marriage therein
authorized and any person or persons who shall wilfully neglect to make
such return within the time above required shall be deemed guilty of a
misdemeanor and upon conviction thereof shall be punished by a fine of
not less than twenty-five dollars or more than fifty dollars for each
and every offense.
When a marriage is solemnized by a city, town or village justice
outside of the territorial jurisdiction in which such justice was
elected or appointed, as provided in subdivision six of section eleven
of this chapter, there shall be affixed to such license prior to filing,
the official or common seal of the court or of the municipality in which
such justice was elected or appointed.
Town and city clerks to issue certificates of marriage
registration; form. 1. Upon receipt of the return of the marriage
license, properly endorsed and completed by the person who shall have
solemnized a marriage as provided in this article, the town and city
clerks of each and every town or city in the state shall, after
abstracting, recording and indexing the statement of performance of
solemnization, issue to the couple within fifteen days after such
receipt or return of the completed marriage license a certificate of
marriage, which certificate shall be substantially in the following form
and contain the following facts:
Record No............of Year........
THIS IS TO CERTIFY
that ................................................................. ,
first name, premarriage middle and surname,
new middle and/or surname (if applicable)
residing at .......................................................... ,
who was born on ........................., at ........................ ,
date
and .................................................................. ,
first name, premarriage middle and
surname, new middle and/or
surname (if applicable)
residing at .......................................................... ,
who was born ........................, at ............................ ,
date
were married on.......................at ............................. ,
date
as shown by the duly registered license and certificate of
marriage of said persons on file in this office.
(SEAL) ......................................
Town or City Clerk
Dated at.................., N. Y.
.................................
No other facts contained in the affidavits, statements, consents or
licenses shall be certified by such town and city clerks, unless
expressly requested in writing by the man or woman named in such
affidavit, license, statement or record.
2. a. Such town and city clerks shall be entitled to a fee for such
certificate, payable at the time of issuance of the marriage license, in
a sum not exceeding ten dollars, to be fixed in the case of town clerks
by the town board, and in the case of city clerks by the common council
or governing body of such cities. The town and city clerks shall, upon
request of any applicant whose name appears thereon, issue a similar
certificate of marriage, as set forth above, and similarly expanded with
additional facts upon the express additional request, for all marriages
heretofore indexed and recorded in the office of the town or city
clerks. For such certificate of marriage, the town and city clerks shall
be entitled to a fee not exceeding ten dollars, to be fixed in the case
of town clerks by the town board, and in the case of city clerks by the
common council or governing body of such city.
b. In addition to the foregoing, upon request of any applicant whose
name appears thereon for a certificate of marriage, the town or city
clerk may issue a photograph, micro-photograph or photocopy of the
marriage record on file in the office of such clerk. Such photograph,
micro-photograph or photocopy, when certified by the town or city clerk,
shall be deemed an original record for all purposes, including
introduction in evidence in all courts or administrative agencies. For
such certificate of marriage and the certification thereof, the town or
city clerk shall be entitled to a fee not exceeding ten dollars, to be
fixed in the case of town clerks by the town board, and in the case of
city clerks by the common council or governing body of such city.
3. a. No fee shall be charged for any certificate when required by the
United States department of veterans affairs or by the department of
veterans' services of the state of New York to be used in determining
the eligibility of any person to participate in the benefits made
available by the United States department of veterans affairs or by the
state of New York.
b. A town or city may elect to waive the fee for a certificate when
either of the parties making application for such certificate is a
member of the armed forces of the United States on active duty.
4. A copy of the record of marriage registration when properly
certified by the city and town clerks or their duly authorized deputies,
as herein provided, shall be prima facie evidence of the facts therein
stated and in all actions, proceedings or applications, judicial,
administrative or otherwise, and any such certificate of registration of
marriage shall be accepted with the same force and effect with respect
to the facts therein stated as the original certificate of marriage or
certified copy thereof.
5. Upon request of any applicant whose name appears thereon for a
certificate of marriage, the town or city clerk shall be authorized to
correct any errors on such marriage certificate where:
a. such error was not the result of any intended fraud, deception or
attempt to avoid the effect of any valid law, regulation or statute; and
b. either party to the marriage provides proof, satisfactory to the
clerk, of the accuracy of the facts presented in support of correcting
the error.
To effectuate such correction and provide certified copies of the
amended certificate, the town or city clerk shall be entitled to a fee
not exceeding ten dollars to be fixed in the case of town clerks by the
town board, and in the case of city clerks by the common council or
governing body of such city. The clerk shall forward a copy of such
amended certificate to the commissioner of health.
Marriages of minors under eighteen years of age. Any marriage
in which either party is under the age of eighteen years is hereby
prohibited. Any town or city clerk who shall knowingly issue a marriage
license to any persons, one or both of whom shall be at the time of
their contemplated marriage actually under the age of eighteen years,
shall be guilty of a misdemeanor and on conviction thereof shall be
fined in the sum of one hundred dollars.
False statements and affidavits. Any person who shall in any
affidavit or statement required or provided for in this article wilfully
and falsely swear in regard to any material fact as to the competency of
any person for whose marriage the license in question or concerning the
procuring or issuing of which such affidavit or statement may be made
shall be deemed guilty of perjury and on conviction thereof shall be
punished as provided by the statutes of this state.
Clergyman or officer violating article; penalty. If any
clergyman or other person authorized by the laws of this state to
perform marriage ceremonies shall solemnize or presume to solemnize any
marriage between any parties without a license being presented to him or
them as herein provided or with knowledge that either party is legally
incompetent to contract matrimony as is provided for in this article he
shall be guilty of a misdemeanor and on conviction thereof shall be
punished by a fine not less than fifty dollars nor more than five
hundred dollars or by imprisonment for a term not exceeding one year.
Clergymen or officer, when protected. Any such clergymen or
officer as aforesaid to whom any such license duly issued may come and
not having personal knowledge of the incompetency of either party
therein named to contract matrimony, may lawfully solemnize matrimony
between them.
Marriages on vessels; reports and records. The master, chief
officer, ship's surgeon, or the company, corporation, charterer, or
person having the management and control of any vessel which shall
arrive at the port of New York, shall report, in writing, to the city
clerk of the city of New York within three days after the arrival of
such vessel the marriage of any resident of such city occurring thereon
at sea, and shall file with such clerk a transcript of the entry made in
the log book of such vessel in respect to any such marriage.
Certified transcripts of records; state commissioner of health
may furnish. The state commissioner of health or person authorized by
him shall, upon request, supply to any applicant a certified transcript
of any marriage registered under the provisions of this article, unless
he is satisfied that the same does not appear to be necessary or
required for judicial or other proper purposes. Any transcript of the
record of a marriage, when properly certified by the state commissioner
of health or person authorized to act for him, shall be prima facie
evidence in all courts and places of the facts therein stated. For any
search of the files and records conducted for authorized research
purposes, the state commissioner of health shall be entitled to a fee of
twenty dollars for each hour or fractional part of an hour of time of
search, together with a fee of two dollars for each uncertified copy or
abstract of such marriage record requested by the applicant, said fees
to be paid by the applicant. Each applicant for a certified transcript
of a marriage record shall remit to the state commissioner of health a
fee of thirty dollars in payment for the search of the files and records
and the furnishing of a certified copy if such record is found or for a
certification that a search discloses no record of a marriage.
Certification of marriage; state commissioner of health may
furnish. 1. The state commissioner of health or person authorized by him
shall, upon request, issue to any applicant a certification of any
marriage registered under the provisions of this article, unless he is
satisfied that the same does not appear to be necessary or required for
judicial or other proper purposes. Any such certification of marriage
made by such commissioner or person authorized to act for him shall be
prima facie evidence in all courts and places of the facts therein
stated.
2. Such certification shall contain a statement of the respective
names, dates and places of birth and places of the then residence of
each of the parties to such marriage and the date and place thereof.
3. Each applicant for a certification of marriage shall remit to the
commissioner with such application a fee of thirty dollars in payment
for the search of the files and records and the furnishing of such
certification if a record thereof is found or for a certification that a
search discloses no record of a marriage.
4. The federal agency in charge of vital statistics may obtain, at a
fee acceptable to the commissioner, information from marriage records
for use solely as statistical data.
Certification of marriage; new certificate in case of
subsequent change of name or gender. 1. A new marriage certificate shall
be issued by the town or city clerk where the marriage license and
certificate was issued, upon receipt of proper proof of a change of name
or gender designation. Proper proof shall consist of: (a) a judgment,
order or decree affirming a change of name or gender designation of
either party to a marriage; (b) an amended birth certificate
demonstrating a change of name or gender designation; (c) in the case of
a change of gender designation, a notarized affidavit from the
individual attesting to their change of gender designation; or (d) such
other proof as may be established by the commissioner of health.
2. When a new marriage certificate is made pursuant to this section,
the town or city clerk shall substitute such new certificate for the
marriage certificate then on file, if any, and shall send the state
commissioner of health a digital copy of the new marriage certificate in
a format prescribed by the commissioner, with the exception of the city
clerk of New York who shall retain their copy. The town or city clerk
shall make a copy of the new marriage certificate for the local record
and hold the contents of the original marriage certificate confidential
along with all supporting documentation, papers and copies pertaining
thereto. It shall not be released or otherwise divulged except by order
of a court of competent jurisdiction.
3. The town or city clerk shall be entitled to a fee of ten dollars
for the amendment and certified copy of any marriage certificate in
accordance with the provisions of this section.
4. The state commissioner of health may, in their discretion, report
to the attorney general any town or city clerk that, without cause,
fails to issue a new marriage certificate upon receipt of proper proof
of a change of name or gender designation in accordance with this
section. The attorney general shall thereupon, in the name of the state
commissioner of health or the people of the state, institute such action
or proceeding as may be necessary to compel the issuance of such new
marriage certificate.
Forms and books to be furnished. The proper books for
registration, blank forms for marriage licenses, certificates,
statements and affidavits and such other blanks as shall be necessary to
comply with the provisions of this article, shall be prepared by the
state department of health and shall be furnished by said department at
the expense of the state to the town and city clerks filing records with
the state department of health in such quantities as their necessities
shall require.
Penalty for violation. Any town or city clerk who shall violate
any of the provisions of this article or shall fail to comply therewith
shall be deemed guilty of a misdemeanor and shall pay a fine not
exceeding the sum of one hundred dollars on conviction thereof.
Supervision of and inspection of town and city clerks' records
by state commissioner of health. The registration and recording of all
marriages outside the city of New York shall be under the supervision of
the state commissioner of health. The commissioner, either personally or
by an accredited representative, may at any time inspect the record and
index of marriage licenses issued by any town or city clerk and
promulgate rules and regulations for insuring complete registration.
When he shall deem it necessary, he shall report cases of violation of
any of the provisions of this article to the district attorney of the
county, with a statement of the facts and circumstances; and when any
such case is reported to him by the state commissioner of health, the
prosecuting attorney shall forthwith initiate and promptly follow up the
necessary court proceedings against the person or persons responsible
for the alleged violation of law. Upon request of the state commissioner
of health, the attorney-general shall assist in the enforcement of the
provisions of this article.
Effect of marriage on legitimacy of children. 1. A child
heretofore or hereafter born of parents who prior or subsequent to the
birth of such child shall have entered into a civil or religious
marriage, or shall have consummated a common-law marriage where such
marriage is recognized as valid, in the manner authorized by the law of
the place where such marriage takes place, is the legitimate child of
both birth parents notwithstanding that such marriage is void or
voidable or has been or shall hereafter be annulled or judicially
declared void.
2. Nothing herein contained shall be deemed to affect the construction
of any will or other instrument executed before the time this act shall
take effect or any right or interest in property or right of action
vested or accrued before the time this act shall take effect, or to
limit the operation of any judicial determination heretofore made
containing express provision with respect to the legitimacy, maintenance
or custody of any child, or to affect any adoption proceeding heretofore
commenced, or limit the effect of any order or orders entered in such
adoption proceeding.
License, when to be obtained. The provisions of this article
pertaining to the granting of the licenses before a marriage can be
lawfully celebrated apply to all persons who assume the marriage
relation in accordance with subdivision four of section eleven of this
chapter. Nothing in this article contained shall be construed to render
void by reason of a failure to procure a marriage license any marriage
solemnized between persons of full age.
ARTICLE 4 Certain Rights and Liabilities of Husband and Wife
Property of married woman. Property, real or personal, now owned
by a married woman, or hereafter owned by a woman at the time of her
marriage, or acquired by her as prescribed in this chapter, and the
rents, issues, proceeds and profits thereof, shall continue to be her
sole and separate property as if she were unmarried, and shall not be
subject to her husband's control or disposal nor liable for his debts.
Insurance of married person's life. The right of a married
person to cause the life of his or her spouse or any other person to be
insured and to dispose of any interest such married person may have in a
policy of insurance on the life of the other spouse or of any other
person shall be governed by the insurance law and by statutes and rules
of law governing rights of a married person in respect to property and
the acquisition, use, enjoyment and disposition thereof.
Pardon not to restore marital rights. A pardon granted to a
person sentenced to imprisonment for life within this state does not
restore that person to the rights of a previous marriage or to the
guardianship of a child, the issue of such a marriage.
Married person's domicile. The domicile of a married man or
woman shall be established for all purposes without regard to sex.
ARTICLE 5 The Custody and Wages of Children
Habeas corpus for child detained by parent. (a) Where a minor
child is residing within this state, either parent may apply to the
supreme court for a writ of habeas corpus to have such minor child
brought before such court; and on the return thereof, the court, on due
consideration, may award the natural guardianship, charge and custody of
such child to either parent for such time, under such regulations and
restrictions, and with such provisions and directions, as the case may
require, and may at any time thereafter vacate or modify such order. In
all cases there shall be no prima facie right to the custody of the
child in either parent, but the court shall determine solely what is for
the best interest of the child, and what will best promote its welfare
and happiness, and make award accordingly.
(b) Any order under this section which applies to rights of visitation
with a child remanded or placed in the care of a person, official,
agency or institution pursuant to article ten of the family court act or
pursuant to an instrument approved under section three hundred
fifty-eight-a of the social services law, shall be enforceable pursuant
to the provisions of part eight of article ten of such act, sections
three hundred fifty-eight-a and three hundred eighty-four-a of the
social services law and other applicable provisions of law against any
person or official having care and custody, or temporary care and
custody, of such child.
Special proceeding or habeas corpus to obtain visitation rights
in respect to certain infant siblings. Where circumstances show that
conditions exist which equity would see fit to intervene, a brother or
sister or, if he or she be a minor, a proper person on his or her behalf
of a child, whether by half or whole blood, may apply to the supreme
court by commencing a special proceeding or for a writ of habeas corpus
to have such child brought before such court, or may apply to the family
court pursuant to subdivision (b) of section six hundred fifty-one of
the family court act; and on the return thereof, the court, by order,
after due notice to the parent or any other person or party having the
care, custody, and control of such child, to be given in such manner as
the court shall prescribe, may make such directions as the best interest
of the child may require, for visitation rights for such brother or
sister in respect to such child.
Special proceeding or habeas corpus to obtain visitation rights
or custody in respect to certain infant grandchildren. 1. Where either
or both of the parents of a minor child, residing within this state, is
or are deceased, or where circumstances show that conditions exist which
equity would see fit to intervene, a grandparent or the grandparents of
such child may apply to the supreme court by commencing a special
proceeding or for a writ of habeas corpus to have such child brought
before such court, or may apply to the family court pursuant to
subdivision (b) of section six hundred fifty-one of the family court
act; and on the return thereof, the court, by order, after due notice to
the parent or any other person or party having the care, custody, and
control of such child, to be given in such manner as the court shall
prescribe, may make such directions as the best interest of the child
may require, for visitation rights for such grandparent or grandparents
in respect to such child.
2. (a) Where a grandparent or the grandparents of a minor child,
residing within this state, can demonstrate to the satisfaction of the
court the existence of extraordinary circumstances, such grandparent or
grandparents of such child may apply to the supreme court by commencing
a special proceeding or for a writ of habeas corpus to have such child
brought before such court, or may apply to family court pursuant to
subdivision (b) of section six hundred fifty-one of the family court
act; and on the return thereof, the court, by order, after due notice to
the parent or any other person or party having the care, custody, and
control of such child, to be given in such manner as the court shall
prescribe, may make such directions as the best interests of the child
may require, for custody rights for such grandparent or grandparents in
respect to such child. An extended disruption of custody, as such term
is defined in this section, shall constitute an extraordinary
circumstance.
(b) For the purposes of this section "extended disruption of custody"
shall include, but not be limited to, a prolonged separation of the
respondent parent and the child for at least twenty-four continuous
months during which the parent voluntarily relinquished care and control
of the child and the child resided in the household of the petitioner
grandparent or grandparents, provided, however, that the court may find
that extraordinary circumstances exist should the prolonged separation
have lasted for less than twenty-four months.
(c) Nothing in this section shall limit the ability of parties to
enter into consensual custody agreements absent the existence of
extraordinary circumstances.
ARTICLE 5-A Uniform Child Custody Jurisdiction and Enforcement Act
TITLE 2 Jurisdiction
TITLE 3 Enforcement
TITLE 4 Miscellaneous Provisions
ARTICLE 6 Guardians
Appointment of guardians by parent. A married woman is a joint
guardian of her children with her husband, with equal powers, rights and
duties in regard to them. Upon the death of either father or mother, the
surviving parent, whether of full age or a minor, of a child likely to
be born, or of any living child under the age of eighteen years and
unmarried, may, by deed or last will, duly executed, dispose of the
custody and tuition of such child during its minority or for any less
time, to any person or persons. Such surviving parent may appoint a
guardian or guardians of the person and of the property of the infant
and in making such appointment shall not be limited to the appointment
of the same person or persons in both capacities. Either the father or
mother may in the life-time of them both, by last will duly executed,
appoint the other the guardian of the person and property of such child,
during its minority. Either the father or mother may in the life-time
of them both by last will duly executed, and with the written consent of
the other duly acknowledged, appoint the other and a third person to be
the guardians of the person and property of such child during its
minority, and in making such appointment shall not be limited to the
appointment of the same person or persons in both capacities. Such
consent must have as part thereof a sworn statement that the consenting
parent in so consenting, is motivated solely by the welfare of the child
or children, the guardianship of whom is the subject of such consent,
and that such consenting parent has not received and will not receive
any consideration for such consent, and such consent may be revoked by
such consenting parent at any time prior to the death of the other, by
filing in the office of the county clerk of the county in which said
other then resides, a written revocation of such consent, subscribed and
acknowledged by the person so revoking, with proof of service of a copy
thereof on such other parent in the manner provided for service of a
summons. An appointment of a guardian of the person and property of an
infant made by duly executed last will of his father or mother shall be
valid and effective if at the time the will is admitted to probate the
other parent shall have died or the surviving parent be an adjudicated
incompetent. If both parents die under circumstances which render it
difficult or impossible to determine which of them died first and both
of them left last wills appointing the same person as guardian, the
appointment shall be valid and effective. If both parents die under
circumstances which render it difficult or impossible to determine which
of them died first, leaving last wills appointing different persons as
guardians, the surrogate's court shall determine which of the
appointments will best serve the welfare of the child and issue letters
of guardianship accordingly. If at any time during the minority of the
infant the surviving parent becomes competent to serve as guardian, he
may apply to the court which issued letters of guardianship to the
guardian appointed by will for a decree revoking such letters and the
court shall on such application make such order or decree as justice
requires. A person appointed guardian in pursuance of this section
shall not exercise the power of authority thereof unless such will is
admitted to probate, or such deed executed and recorded as provided by
SCPA 1710.
Powers and duties of such guardians. Every such disposition,
from the time it takes effect, shall vest in the person to whom made, if
he accepts the appointment, all the rights and powers, and subject him
to all the duties and obligations of a guardian of such minor, and shall
be valid and effectual against every other person claiming the custody
and tuition of such minor, as guardian in socage or otherwise. He may
take the custody and charge of the tuition of such minor, and may
maintain all proper actions for the wrongful taking or detention of the
minor, and shall recover damages in such actions for the benefit of his
ward. He shall also take the custody and management of the personal
estate of such minor and the profits of his real estate, during the time
for which such disposition shall have been made, and may bring such
actions in relation thereto as a guardian in socage might by law.
Duties and liabilities of all general guardians. A general
guardian or guardian in socage shall safely keep the property of his
ward that shall come into his custody, and shall not make or suffer any
waste, sale or destruction of such property or inheritance, but shall
keep in repair and maintain the houses, gardens and other appurtenances
to the lands of his ward, by and with the issues and profits thereof, or
with such other moneys belonging to his ward as shall be in his
possession; and shall deliver the same to his ward, when he comes to
full age, in at least as good condition as such guardian received the
same, inevitable decay and injury only excepted; and shall answer to his
ward for the issues and profits of the real estate, received by him, by
a lawful account, to be settled before any court, judge or surrogate
having authority to settle the accounts of general and testamentary
guardians; and any order, judgment or decree in any action or proceeding
to settle such accounts may be enforced to the same extent, and in like
manner as in the case of general and testamentary guardians. If any
guardian shall make or suffer any waste, sale or destruction of the
inheritance of his ward, he shall lose the custody of the same, and of
such ward, and shall be liable to the ward for any damage caused
thereby.
Investment of trust funds by guardian. A guardian holding funds
for investment has the powers provided by section twenty-one of the
personal property law and must not invest the funds in any other
securities or manner.
ARTICLE 7 Adoption
TITLE 1 Adoptions Generally
TITLE 2 Adoption From an Authorized Agency
TITLE 3 Private-placement Adoption
TITLE 4 Effect of Adoption From an Authorized Agency, of Private-placement Adoption, and Abrogations Thereof
ARTICLE 8 Genetic Surrogate Parenting Contracts
Definitions. When used in this article, unless the context or
subject matter manifestly requires a different interpretation:
1. "Genetic surrogate" shall mean a person who gives birth to a child
who is the person's genetic child pursuant to a genetic surrogate
parenting agreement.
2. "Genetic surrogate parenting agreement" shall mean any agreement,
oral or written, in which:
(a) a genetic surrogate agrees either to be inseminated with the sperm
of a person who is not their spouse or to be impregnated with an embryo
that is the product of the genetic surrogate's ovum fertilized with the
sperm of a person who is not their spouse; and
(b) the genetic surrogate agrees to, or intends to, surrender or
consent to the adoption of the child born as a result of such
insemination or impregnation.
Public policy. Genetic surrogate parenting agreements are
hereby declared contrary to the public policy of this state, and are
void and unenforceable.
Prohibitions and penalties. 1. No person or other entity shall
knowingly request, accept, receive, pay or give any fee, compensation or
other remuneration, directly or indirectly, in connection with any
genetic surrogate parenting agreement, or induce, arrange or otherwise
assist in arranging a genetic surrogate parenting agreement for a fee,
compensation or other remuneration, except for:
(a) payments in connection with the adoption of a child permitted by
subdivision six of section three hundred seventy-four of the social
services law and disclosed pursuant to subdivision eight of section one
hundred fifteen of this chapter; or
(b) payments for reasonable and actual medical fees and hospital
expenses for artificial insemination or in vitro fertilization services
incurred by the genetic surrogate in connection with the birth of the
child.
2. (a) Any party to a genetic surrogate parenting agreement or the
spouse of any party to a genetic surrogate parenting agreement who
violates this section shall be subject to a civil penalty not to exceed
five hundred dollars.
(b) Any other person or entity who or which induces, arranges or
otherwise assists in the formation of a genetic surrogate parenting
contract for a fee, compensation or other remuneration or otherwise
violates this section shall be subject to a civil penalty not to exceed
ten thousand dollars and forfeiture to the state of any such fee,
compensation or remuneration in accordance with the provisions of
subdivision (a) of section seven thousand two hundred one of the civil
practice law and rules, for the first such offense. Any person or entity
who or which induces, arranges or otherwise assists in the formation of
a genetic surrogate parenting contract for a fee, compensation or other
remuneration or otherwise violates this section, after having been once
subject to a civil penalty for violating this section, shall be guilty
of a felony.
Proceedings regarding parental rights, status or obligations.
In any action or proceeding involving a purported genetic surrogacy
parenting agreement, the parentage of the child will be determined based
on the laws of New York state and:
1. the court shall not consider the genetic surrogate's participation
in a genetic surrogate parenting agreement as adverse to their parental
rights, status, or obligations; and
2. the court, having regard to the circumstances of the case and of
the respective parties including the parties' relative ability to pay
such fees and expenses, in its discretion and in the interests of
justice, may award to either party reasonable and actual counsel fees
and legal expenses incurred in connection with such action or
proceeding. Such award may be made in the order or judgment by which the
particular action or proceeding is finally determined, or by one or more
orders from time to time before the final order or judgment, or by both
such order or orders and the final order or judgment; provided, however,
that in any dispute involving a genetic surrogate who has executed a
valid surrender or consent to the adoption, nothing in this section
shall empower a court to make any award that it would not otherwise be
empowered to direct.
ARTICLE 9 Action to Annul a Marriage or Declare It Void
Action for judgment declaring nullity of void marriages or
annulling voidable marriage. (a) Former husband or wife living. An
action to declare the nullity of a void marriage upon the ground that
the former husband or wife of one of the parties was living, the former
marriage being in force, may be maintained by either of the parties
during the life-time of the other, or by the former husband or wife.
(b) Party under age of consent. An action to annul a marriage on the
ground that one or both of the parties had not attained the age of legal
consent may be maintained by the infant, or by either parent of the
infant, or by the guardian of the infant's person; or the court may
allow the action to be maintained by any person as the next friend of
the infant. But a marriage shall not be annulled under this subdivision
at the suit of a party who was of the age of legal consent when it was
contracted, or by a party who for any time after he or she attained that
age freely cohabited with the other party as husband or wife.
(c) Party a person with a developmental illness or person with a
mental illness. An action to annul a marriage on the ground that one of
the parties thereto was a person with a developmental disability may be
maintained at any time during the life-time of either party by any
relative of a person with a developmental disability, who has an
interest to avoid the marriage. An action to annul a marriage on the
ground that one of the parties thereto was a person with a mental
illness may be maintained at any time during the continuance of the
mental illness, or, after the death of the person with a mental illness
in that condition, and during the life of the other party to the
marriage, by any relative of the person with a mental illness who has an
interest to avoid the marriage. Such an action may also be maintained by
the person with a mental illness at any time after restoration to a
sound mind; but in that case, the marriage should not be annulled if it
appears that the parties freely cohabited as husband and wife after the
person with a mental illness was restored to a sound mind. Where one of
the parties to a marriage was a person with a mental illness at the time
of the marriage, an action may also be maintained by the other party at
any time during the continuance of the mental illness, provided the
plaintiff did not know of the mental illness at the time of the
marriage. Where no relative of the person with a developmental
disability or person with a mental illness brings an action to annul the
marriage and the person with a mental illness is not restored to sound
mind, the court may allow an action for that purpose to be maintained at
any time during the life-time of both the parties to the marriage, by
any person as the next friend of the person with a mental illness or
person with a developmental disability.
(d) Physical incapacity. An action to annul a marriage on the ground
that one of the parties was physically incapable of entering into the
marriage state may be maintained by the injured party against the party
whose incapacity is alleged; or such an action may be maintained by the
party who was incapable against the other party, provided the incapable
party was unaware of the incapacity at the time of marriage, or if aware
of such incapacity, did not know it was incurable. Such an action can be
maintained only where an incapacity continues and is incurable, and must
be commenced before five years have expired since the marriage.
(e) Consent by force, duress or fraud. An action to annul a marriage
on the ground that the consent of one of the parties thereto was
obtained by force or duress may be maintained at any time by the party
whose consent was so obtained. An action to annul a marriage on the
ground that the consent of one of the parties thereto was obtained by
fraud may be maintained by the party whose consent was so obtained
within the limitations of time for enforcing a civil remedy of the civil
practice law and rules. Any such action may also be maintained during
the life-time of the other party by the parent, or the guardian of the
person of the party whose consent was so obtained, or by any relative of
that party who has an interest to avoid the marriage, provided that in
an action to annul a marriage on the ground of fraud the limitation
prescribed in the civil practice law and rules has not run. But a
marriage shall not be annulled on the ground of force or duress if it
appears that, at any time before the commencement of the action, the
parties thereto voluntarily cohabited as husband and wife; or on the
ground of fraud, if it appears that, at any time before the commencement
thereof, the parties voluntarily cohabited as husband and wife, with a
full knowledge of the facts constituting the fraud.
(f) Incurable mental illness for five years. An action to annul a
marriage upon the ground that one of the parties has been incurably
mentally ill for a period of five years or more may be maintained by or
on behalf of either of the parties to such marriage.
Action to annul marriage on ground of incurable mental illness
for five years; procedure; support. 1. If the marriage be annulled on
the ground of the mental illness of a spouse, the court may include in
the judgment an order providing for his or her suitable support, care
and maintenance during life from the property or income of the other
spouse. The court shall specify the amount of such support, care and
maintenance and, before rendering judgment, may exact security for such
support, care and maintenance during life and shall order the filing and
recording of the instrument creating such security in the office of the
clerk of the county in which the action is brought and the filing of two
certified copies thereof with the office of mental health at its Albany
office. The provisions of the judgment relating to support, care and
maintenance of the spouse with a mental illness during his or her life
and to security therefor may be modified or amended at any time by the
court upon due notice to the other party and other interested parties as
the court may direct and in proper case the value of the suitable
support, care and maintenance to such spouse during the balance of his
or her life based upon appropriate mortality tables may be adjudged and
determined by the court in which the estate of a deceased spouse is
being administered and the same may be recovered on behalf of the spouse
with a mental illness from the estate of the deceased spouse. If the
spouse with a mental illness is maintained in an institution or
otherwise under the jurisdiction of the office of mental health, the
suitable support, care and maintenance as required in the judgment,
unless otherwise directed by the court, shall be the charge established
by the commissioner of mental health and such charge may be recovered in
the manner provided by law. Such amount shall continue to be so required
for the support of the spouse with a mental illness in the event of his
or her removal from the custody of the office of mental health unless
thereafter otherwise directed by the court. Any security exacted for the
suitable support, care and maintenance during life of the spouse with a
mental illness shall be available to that spouse or any person on his or
her behalf or to any person or agency providing support, care and
maintenance for such spouse in the event that the required payments for
such support, care and maintenance have not been made and upon
application to the court the other spouse shall be ordered and directed
to provide additional or further security.
2. Judgment annulling a marriage on such ground shall not be rendered
until, in addition to any other proofs in the case, a thorough
examination of the alleged party with a mental illness shall have been
made by three physicians who are recognized authorities on mental
disease, to be appointed by the court, all of whom shall have agreed
that such party has an incurable mental illness and shall have so
reported to the court. In such action, the testimony of a physician
attached to a state hospital in the department of mental hygiene as to
information which he acquired in attending a patient in a professional
capacity at such hospital, shall be taken before a referee appointed by
a judge of the court in which such action is pending if the court in its
discretion shall determine that the distance such physician must travel
to attend the trial would be a great inconvenience to him or the
hospital, or that other sufficient reason exists for the appointment of
a referee for such purpose; provided, however, that any judge of such
court at any time in his discretion, notwithstanding such deposition,
may order that a subpoena issue for the attendance and examination of
such physician upon the trial of the action. In such case a copy of the
order shall be served together with the subpoena.
3. Except as provided in paragraph five of this section, when the
person alleged to have an incurable mental illness is confined in a
state hospital for persons with a mental illness of this state, one, and
one only, of the physicians so appointed shall be a member of the
resident medical staff of such hospital designated by the director
thereof. If the alleged incurably person with a mental illness is not
confined in a state hospital for persons with a mental illness of this
state, one of the examining physicians named in pursuance of this
section shall be the director of a state hospital for persons with a
mental illness if the alleged person with a mental illness is within
this state, or the superintendent or comparable officer of a state
hospital for persons with a mental illness of the state or country where
the alleged person with a mental illness is present if the alleged
person with a mental illness is outside of this state. The report of
such superintendent or comparable officer of a state hospital for
persons with a mental illness of such other state or country shall not
be received in evidence or considered by the court unless he shall be a
well educated physician with at least five years of training and
experience in the care and treatment of persons suffering from mental
disorders.
4. When the plaintiff has been permitted to bring such action or
prosecute the same as a poor person and the alleged incurably defendant
with a mental illness is present within this state, the court shall
appoint three physicians who are examining physicians, as defined by
section 1.05 of the mental hygiene law, in the employment of the
department of mental hygiene. If the alleged person with a mental
illness be outside of this state, the court may, upon proof thereof,
appoint three examining physicians who are qualified under the laws or
regulations of the foreign state or country where the alleged person
with a mental illness is present and who have qualifications comparable
to those specified in section 1.05 of the mental hygiene law of the
state, provided, however, that one of such examining physicians shall be
the superintendent or comparable officer of a state hospital for persons
with a mental illness of such foreign state or country with
qualifications as specified in paragraph four. Such examiners shall make
the examination of the alleged party with a mental illness present in
this state and file with the court a verified report of their findings
and conclusions without costs to such plaintiff when the plaintiff is a
poor person. Examination of an alleged party with a mental illness
present outside of this state shall be made at the expense of the
plaintiff. Such report shall be received in evidence upon the trial of
the action without the personal appearance or testimony of such
examiners. If the court shall deem it necessary that the testimony of
any such examiners be taken, the court may order the taking of such
testimony by deposition only. The examiners so appointed by the court
may be members of the resident medical staff of any state hospital,
whether or not the alleged person with a mental illness is being
confined there.
Dismissal of complaint in action by next friend to annul a
marriage. Where the next friend of an infant, person with a
developmental disability or person with a mental illness maintains an
action annulling a marriage, the court may dismiss the complaint if
justice so requires, although, in a like case, the party to the
marriage, if plaintiff, would be entitled to judgment.
Jury trial. In an action to annul a marriage, except where it
is founded upon an allegation of the physical incapacity of one of the
parties thereto, there is a right to trial by a jury of all the issues
of fact.
Proof required. 1. In an action to annul a marriage, a final
judgment annulling the marriage shall not be rendered by default for
want of an appearance or pleading, or by consent, or upon a trial of an
issue, without proof of the facts upon which the allegation of nullity
is founded. Plaintiff shall prove that there has been no such
cohabitation between the parties as would bar a judgment except that in
an action under subdivision (c) of section one hundred forty the
plaintiff may prove instead that the mental illness still continues.
2. In any action, whether or not contested, brought to annul a
marriage, the declaration or confession of either party to the marriage
is not alone sufficient as proof, but other satisfactory evidence of the
facts must be produced.
Judgment, how far conclusive. A final judgment, annulling a
marriage rendered during the lifetime of both the parties is conclusive
evidence of the invalidity of the marriage in every court of record or
not of record, in any action or special proceeding, civil or criminal.
Such a judgment rendered after the death of either party to the marriage
is conclusive only as against the parties to the action and those
claiming under them.
ARTICLE 10 Action For Divorce
Action for divorce. An action for divorce may be maintained by
a husband or wife to procure a judgment divorcing the parties and
dissolving the marriage on any of the following grounds:
(1) The cruel and inhuman treatment of the plaintiff by the defendant
such that the conduct of the defendant so endangers the physical or
mental well being of the plaintiff as renders it unsafe or improper for
the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of
one or more years.
(3) The confinement of the defendant in prison for a period of three
or more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for
the purposes of articles ten, eleven, and eleven-A of this chapter, is
hereby defined as the commission of an act of vaginal sexual contact,
oral sexual contact or anal sexual contact, voluntarily performed by the
defendant, with a person other than the plaintiff after the marriage of
plaintiff and defendant. Oral sexual contact and anal sexual contact
include, but are not limited to, sexual conduct as defined in
subdivision two of section 130.00 and subdivision four of section 130.20
of the penal law.
(5) The spouses have lived apart pursuant to a decree or judgment of
separation for a period of six months or more after the granting of such
decree or judgment, and satisfactory proof has been submitted by the
plaintiff that such plaintiff has substantially performed all the terms
and conditions of such decree or judgment.
(6) The spouses have lived separate and apart pursuant to a written
agreement of separation, subscribed by the parties thereto and
acknowledged or proved in the form required to entitle a deed to be
recorded, for a period of six months or more after the execution of such
agreement and satisfactory proof has been submitted by the plaintiff
that such plaintiff has substantially performed all the terms and
conditions of such agreement. Such agreement shall be filed in the
office of the clerk of the county wherein either party resides. In lieu
of filing such agreement, either party to such agreement may file a
memorandum of such agreement, which memorandum shall be similarly
subscribed and acknowledged or proved as was the agreement of separation
and shall contain the following information: (a) the names and addresses
of each of the parties, (b) the date of marriage of the parties, (c) the
date of the agreement of separation and (d) the date of this
subscription and acknowledgment or proof of such agreement of
separation.
(7) The relationship between husband and wife has broken down
irretrievably for a period of at least six months, provided that one
party has so stated under oath. No judgment of divorce shall be granted
under this subdivision unless and until the economic issues of equitable
distribution of marital property, the payment or waiver of spousal
support, the payment of child support, the payment of counsel and
experts' fees and expenses as well as the custody and visitation with
the infant children of the marriage have been resolved by the parties,
or determined by the court and incorporated into the judgment of
divorce.
Special action. a. A spouse against whom a decree of divorce
has been obtained under the provisions of subdivision five or six of
section one hundred seventy of this chapter, where the decree, judgment
or agreement of separation was obtained or entered into prior to January
twenty-first, nineteen hundred seventy, may institute an action in which
there shall be recoverable, in addition to any rights under this or any
other provisions of law, an amount equivalent to the value of any
economic and property rights of which the spouse was deprived by virtue
of such decree, except where the grounds for the separation judgment
would have excluded recovery of economic and property rights.
b. In determining the value of the economic and property rights
described in subdivision a hereof, the plaintiff's interest shall be
calculated as though the defendant died intestate and as if the death of
the defendant had immediately antedated the divorce.
c. If the defendant shall establish that intervening circumstances
have rendered an award described in subdivision a hereof inequitable,
the court may award to the plaintiff such portion of such economic and
property rights as justice may require.
d. If the defendant shall establish that the plaintiff has expressly
or impliedly waived all or some portion of the aforesaid economic or
property rights, the court shall deny recovery of all such rights, or
deny recovery of the portion of such rights as justice may require.
e. Actions under this subdivision may be brought:
(i) Within two years of the enactment of this section, or
(ii) Within two years of the obtainment of the subject divorce,
whichever is later.
When divorce denied, although adultery proved. In either of the
following cases, the plaintiff is not entitled to a divorce, although
the adultery is established:
1. Where the offense was committed by the procurement or with the
connivance of the plaintiff.
2. Where the offense charged has been forgiven by the plaintiff. The
forgiveness may be proven, either affirmatively, or by the voluntary
cohabitation of the parties with the knowledge of the fact.
3. Where there has been no express forgiveness, and no voluntary
cohabitation of the parties, but the action was not commenced within
five years after the discovery by the plaintiff of the offense charged.
4. Where the plaintiff has also been guilty of adultery under such
circumstances that the defendant would have been entitled, if innocent,
to a divorce.
Co-respondent as party. 1. In an action brought to obtain a
divorce on the ground of adultery the plaintiff or defendant may serve a
copy of his pleading on a co-respondent named therein. At any time
within twenty days after such service, the co-respondent may appear to
defend such action so far as the issues affect him. If no such service
be made, then at any time before the entry of judgment a co-respondent
named in any of the pleadings may make a written demand on any party for
a copy of a summons and a pleading served by such party, which must be
served within ten days thereafter, and he may appear to defend such
action so far as the issues affect him.
2. In an action for divorce where a co-respondent has appeared and
defended, in case no one of the allegations of adultery controverted by
such co-respondent shall be proven, such co-respondent shall be entitled
to a bill of costs against the person naming him as such co-respondent,
which bill of costs shall consist only of the sum now allowed by law as
a trial fee, and disbursements.
Jury trial. In an action for divorce there is a right to trial
by jury of the issues of the grounds for granting the divorce.
Legitimacy of children. 1. Where the action for divorce is
brought by the wife, the legitimacy of any child of the parties, born or
begotten before the commencement of the action, is not affected by the
judgment dissolving the marriage.
2. Where the action for divorce is brought by the husband, the
legitimacy of a child born or begotten before the commission of the
offense charged is not affected by a judgment dissolving the marriage;
but the legitimacy of any other child of the wife may be determined as
one of the issues in the action. In the absence of proof to the
contrary, the legitimacy of all the children begotten before the
commencement of the action must be presumed.
ARTICLE 11 Action For Separation
Action for separation. An action may be maintained by a husband
or wife against the other party to the marriage to procure a judgment
separating the parties from bed and board, forever, or for a limited
time, for any of the following causes:
1. The cruel and inhuman treatment of the plaintiff by the defendant
such that the conduct of the defendant so endangers the physical or
mental well being of the plaintiff as renders it unsafe or improper for
the plaintiff to cohabit with the defendant.
2. The abandonment of the plaintiff by the defendant.
3. The neglect or refusal of the defendant-spouse to provide for the
support of the plaintiff-spouse where the defendant-spouse is chargeable
with such support under the provisions of section thirty-two of this
chapter or of section four hundred twelve of the family court act.
4. The commission of an act of adultery by the defendant; except where
such offense is committed by the procurement or with the connivance of
the plaintiff or where there is voluntary cohabitation of the parties
with the knowledge of the offense or where action was not commenced
within five years after the discovery by the plaintiff of the offense
charged or where the plaintiff has also been guilty of adultery under
such circumstances that the defendant would have been entitled, if
innocent, to a divorce, provided that adultery for the purposes of this
subdivision is hereby defined as the commission of an act of vaginal
sexual contact, oral sexual contact or anal sexual contact, voluntarily
performed by the defendant, with a person other than the plaintiff after
the marriage of plaintiff and defendant. Oral sexual contact and anal
sexual contact include, but are not limited to, sexual conduct as
defined in subdivision two of section 130.00 and subdivision four of
section 130.20 of the penal law.
5. The confinement of the defendant in prison for a period of three or
more consecutive years after the marriage of plaintiff and defendant.
6. The relationship between the spouses has broken down irretrievably
for a period of at least six months, provided that one party has so
stated under oath. No judgment for separation shall be granted under
this subdivision unless and until any applicable, timely and relevant
economic issues, which may include the payment or waiver of spousal
support, the payment of child support, the payment of counsel and
experts' fees and expenses as well as the custody and visitation with
the infant children of the marriage, have been resolved by the parties,
or determined by the court and incorporated into the action.
Defense of justification. The defendant in an action for
separation from bed and board may set up, in justification, the
misconduct of the plaintiff; and if that defense is established to the
satisfaction of the court, the defendant is entitled to judgment.
Judgment for separation revocable. Upon the joint application
of the parties, accompanied with satisfactory evidence of their
reconciliation, a judgment for a separation, forever, or for a limited
period, rendered as prescribed in this article, may be revoked at any
time by the court which rendered it, subject to such regulations and
restrictions as the court thinks fit to impose.
ARTICLE 11-A Special Provisions Relating to Divorce and Separation
Limitations on actions for divorce and separation. No action
for divorce or separation may be maintained on a ground which arose more
than five years before the date of the commencement of that action for
divorce or separation except where:
(a) In an action for divorce, the grounds therefor are one of those
specified in subdivision (2), (4), (5) or (6) of section one hundred
seventy of this chapter, or
(b) In an action for separation, the grounds therefor are one of those
specified in subdivision 2 or 4 of section two hundred of this chapter.
Pleadings, proof and motions. A matrimonial action shall be
commenced by the filing of a summons with the notice designated in
section two hundred thirty-two of this chapter, or a summons and
verified complaint as provided in section three hundred four of the
civil practice law and rules. A final judgment shall be entered by
default for want of appearance or pleading, or by consent, only upon
competent oral proof or upon written proof that may be considered on a
motion for summary judgment. Where a complaint or counterclaim in an
action for divorce or separation charges adultery, the answer or reply
thereto may be made without verifying it, except that an answer
containing a counterclaim must be verified as to that counterclaim. All
other pleadings in a matrimonial action shall be verified.
ARTICLE 12 Dissolution of Marriage On Ground of Absence
Special proceeding to dissolve marriage on the ground of
absence. A special proceeding to dissolve a marriage on the ground of
absence may be maintained in either of the following cases:
1. Where the petitioner is a resident of this state and has been a
resident thereof for one year immediately preceding the commencement of
the special proceeding.
2. Where the matrimonial domicile at the time of the disappearance of
the absent spouse was within the state.
Procedure. The petition shall allege that the husband or wife
of such party has absented himself or herself for five successive years
then last past without being known to such party to be living during
that time; that such party believes such husband or wife to be dead; and
that a diligent search has been made to discover evidence showing that
such husband or wife is living, and no such evidence has been found. The
court shall thereupon by order require notice of the presentation and
object of such petition to be published in a newspaper in the English
language designated in the order as most likely to give notice to such
absent husband or wife once each week for three successive weeks; such
notice shall be directed to the husband or wife who has so absented
himself or herself and shall state the time and place of the hearing
upon such petition, which time shall be not less than forty days after
the completion of the publication of such notice; said notice must be
subscribed with the name of the petitioner and with the name of the
petitioner's attorney and with his office address, specifying a place
within the state where there is a post-office. If in a city, said notice
must also set forth the street and street number, if any, of such
attorney's office address or other suitable designation of the
particular locality in which said office address is located. In addition
to the foregoing requirements said notice must be in substantially the
following form, the blanks being properly filled: "Supreme court,
...........county. In the matter of the application of..........for
dissolution of his or her marriage with........ To................: Take
notice that a petition has been presented to this court
by..............., your husband or wife, for the dissolution of your
marriage on the ground that you have absented yourself for five
successive years last past without being known to him or her to be
living and that he or she believes you to be dead, and that pursuant to
an order of said court, entered the ......day of .........., 19....., a
hearing will be had upon said petition at the said supreme court,
............term part..........., in the ...............county court
house, in the.......... state of New York, on the................. day
of .............., 19...., at ........ o'clock in the ..........noon.
Dated............;" and if the court, after the filing of proof of the
proper publication of said notice and after a hearing and proof taken,
is satisfied of the truth of all the allegations contained in the
petition, it may make a final order dissolving such marriage.
ARTICLE 13 Provisions Applicable to More Than One Type of Matrimonial Action
Required residence of parties. An action to annul a marriage,
or to declare the nullity of a void marriage, or for divorce or
separation may be maintained only when:
1. The parties were married in the state and either party is a
resident thereof when the action is commenced and has been a resident
for a continuous period of one year immediately preceding, or
2. The parties have resided in this state as husband and wife and
either party is a resident thereof when the action is commenced and has
been a resident for a continuous period of one year immediately
preceding, or
3. The cause occurred in the state and either party has been a
resident thereof for a continuous period of at least one year
immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are residents
thereof at the time of the commencement of the action, or
5. Either party has been a resident of the state for a continuous
period of at least two years immediately preceding the commencement of
the action.
Residence of married persons. If a married person dwells within
the state when he or she commences an action against his or her spouse
for divorce, annulment or separation, such person is deemed a resident
thereof, although his or her spouse resides elsewhere.
Notice of nature of matrimonial action; proof of service. a. In
an action to annul a marriage or for divorce or for separation, if the
complaint is not personally served with the summons, the summons shall
have legibly written or printed upon the face thereof: "Action to annul
a marriage", "Action to declare the nullity of a void marriage", "Action
for a divorce", or "Action for a separation", as the case may be, and
shall specify the nature of any ancillary relief demanded. A judgment
shall not be rendered in favor of the plaintiff upon the defendant's
default in appearing or pleading, unless either (1) the summons and a
copy of the complaint were personally delivered to the defendant; or (2)
the copy of the summons (a) personally delivered to the defendant, or
(b) served on the defendant pursuant to an order directing the method of
service of the summons in accordance with the provisions of section
three hundred eight or three hundred fifteen of the civil practice law
and rules, shall contain such notice.
b. An affidavit or certificate proving service shall state
affirmatively in the body thereof that the required notice was written
or printed on the face of the copy of the summons delivered to the
defendant and what knowledge the affiant or officer who executed the
certificate had that he was the defendant named and how he acquired such
knowledge. The court may require the affiant or officer who executed the
affidavit or certificate to appear in court and be examined in respect
thereto.
Sequestration of defendant's property in action for divorce,
separation or annulment where defendant cannot be personally served.
Where in an action for divorce, separation, annulment or declaration of
nullity of a void marriage it appears to the court that the defendant is
not within the state, or cannot be found therein, or is concealing
himself or herself therein, so that process cannot be personally served
upon the defendant, the court may at any time and from time to time make
any order or orders without notice directing the sequestration of his or
her property, both real and personal and whether tangible or intangible,
within the state, and may appoint a receiver thereof, or by injunction
or otherwise take the same into its possession and control. The property
thus sequestered and the income therefrom may be applied in whole or in
part and from time to time, under the direction of the court and as
justice may require, to the payment of such sum or sums as the court may
deem it proper to award, by order or judgment as the case may be, and
during the pendency of the action or at the termination thereof, for the
education or maintenance of any of the children of a marriage, or for
the support of a spouse, or for his or her expenses in bringing and
carrying on said action and the proceedings incidental thereto or
connected therewith; and if the rents and profits of the real estate,
together with the other property so sequestered, be insufficient to pay
the sums of money required, the court, upon such terms and conditions as
it may prescribe, may direct the mortgage or sale of sufficient of said
real estate to pay such sums. The court may appoint the plaintiff spouse
receiver or sequestrator in such cases. The court may authorize such
spouse to use and occupy, free of any liability for rent or use and
occupation or otherwise, any house or other suitable property of the
defendant spouse as a dwelling for himself or herself with or without
the children of the marriage, and may likewise turn over to the
plaintiff spouse for the use of such spouse with or without the children
of the marriage any chattel or chattels of the defendant spouse. The
relief herein provided for is in addition to any and every other remedy
to which a spouse may be entitled under the law.
Title to or occupancy and possession of property. In any action
for divorce, for a separation, for an annulment or to declare the
nullity of a void marriage, the court may (1) determine any question as
to the title to property arising between the parties, and (2) make such
direction, between the parties, concerning the possession of property,
as in the court's discretion justice requires having regard to the
circumstances of the case and of the respective parties. Such direction
may be made in the final judgment, or by one or more orders from time to
time before or subsequent to final judgment, or by both such order or
orders and final judgment. Where the title to real property is affected,
a copy of such judgment, order or decree, duly certified by the clerk of
the court wherein said judgement was rendered, shall be recorded in the
office of the recording officer of the county in which such property is
situated, as provided by section two hundred ninety-seven-b of the real
property law.
Information as to details of matrimonial actions or
proceedings. 1. An officer of the court with whom the proceedings in a
matrimonial action or a written agreement of separation or an action or
proceeding for custody, visitation or maintenance of a child are filed,
or before whom the testimony is taken, or his clerk, either before or
after the termination of the suit, shall not permit a copy of any of the
pleadings, affidavits, findings of fact, conclusions of law, judgment of
dissolution, written agreement of separation or memorandum thereof, or
testimony, or any examination or perusal thereof, to be taken by any
other person than a party, or the attorney or counsel of a party, except
by order of the court.
2. If the evidence on the trial of such an action or proceeding be
such that public interest requires that the examination of the witnesses
should not be public, the court or referee may exclude all persons from
the room except the parties to the action and their counsel, and in such
case may order the evidence, when filed with the clerk, sealed up, to be
exhibited only to the parties to the action or proceeding or someone
interested, on order of the court.
3. Upon the application of any person to the county clerk or other
officer in charge of public records within a county for evidence of the
disposition, judgment or order with respect to a matrimonial action, the
clerk or other such officer shall issue a "certificate of disposition",
duly certifying the nature and effect of such disposition, judgment or
order and shall in no manner evidence the subject matter of the
pleadings, testimony, findings of fact, conclusions of law or judgment
of dissolution derived in any such action.
4. Any county, city, town or village clerk or other municipal official
issuing marriage licenses shall be required to accept, as evidence of
dissolution of marriage, such "certificate of disposition" in lieu of a
complete copy of the findings of fact, conclusions of law and judgment
of dissolution.
5. The limitations of subdivisions one, two and three of this section
in relation to confidentiality shall cease to apply one hundred years
after date of filing, and such records shall thereupon be public records
available to public inspection.
Special controlling provisions; prior actions or proceedings;
new actions or proceedings. Except as otherwise expressly provided in
this section, the provisions of part A shall be controlling with respect
to any action or proceeding commenced prior to the date on which the
provisions of this section as amended become effective and the
provisions of part B shall be controlling with respect to any action or
proceeding commenced on or after such effective date. Any reference to
this section or the provisions hereof in any action, proceeding,
judgment, order, rule or agreement shall be deemed and construed to
refer to either the provisions of part A or part B respectively and
exclusively, determined as provided in this paragraph any inconsistent
provision of law notwithstanding.
PART A
PRIOR ACTIONS OR PROCEEDINGS
Alimony, temporary and permanent. 1. Alimony. In any action or
proceeding brought (1) during the lifetime of both parties to the
marriage to annul a marriage or declare the nullity of a void marriage,
or (2) for a separation, or (3) for a divorce, the court may direct
either spouse to provide suitably for the support of the other as, in
the court's discretion, justice requires, having regard to the length of
time of the marriage, the ability of each spouse to be self supporting,
the circumstances of the case and of the respective parties. Such
direction may require the payment of a sum or sums of money either
directly to either spouse or to third persons for real and personal
property and services furnished to either spouse, or for the rental of
or mortgage amortization or interest payments, insurance, taxes, repairs
or other carrying charges on premises occupied by either spouse, or for
both payments to either spouse and to such third persons. Such direction
shall be effective as of the date of the application therefor, and any
retroactive amount of alimony due shall be paid in one sum or periodic
sums, as the court shall direct, taking into account any amount of
temporary alimony which has been paid. Such direction may be made in the
final judgment in such action or proceeding, or by one or more orders
from time to time before or subsequent to final judgment, or by both
such order or orders and the final judgment. Such direction may be made
notwithstanding that the parties continue to reside in the same abode
and notwithstanding that the court refuses to grant the relief requested
by either spouse (1) by reason of a finding by the court that a divorce,
annulment or judgment declaring the marriage a nullity had previously
been granted to either spouse in an action in which jurisdiction over
the person of the other spouse was not obtained, or (2) by reason of the
misconduct of the other spouse, unless such misconduct would itself
constitute grounds for separation or divorce, or (3) by reason of a
failure of proof of the grounds of either spouse's action or
counterclaim. Any order or judgment made as in this section provided may
combine in one lump sum any amount payable to either spouse under this
section with any amount payable to either spouse under section two
hundred forty of this chapter. Upon the application of either spouse,
upon such notice to the other party and given in such manner as the
court shall direct, the court may annul or modify any such direction,
whether made by order or by final judgment, or in case no such direction
shall have been made in the final judgment may, with respect to any
judgment of annulment or declaring the nullity of a void marriage
rendered on or after September first, nineteen hundred forty or any
judgment of separation or divorce whenever rendered, amend the judgment
by inserting such direction. Subject to the provisions of section two
hundred forty-four of this chapter, no such modification or annulment
shall reduce or annul arrears accrued prior to the making of such
application unless the defaulting party shows good cause for failure to
make application for relief from the judgment or order directing such
payment prior to the accrual of such arrears. Such modification may
increase such support nunc pro tunc based on newly discovered evidence.
2. Compulsory financial disclosure. In all matrimonial actions and
proceedings commenced on or after September first, nineteen hundred
seventy-five in supreme court in which alimony, maintenance or support
is in issue and all support proceedings in family court, there shall be
compulsory disclosure by both parties of their respective financial
states. No showing of special circumstances shall be required before
such disclosure is ordered. A sworn statement of net worth shall be
provided upon receipt of a notice in writing demanding the same, within
twenty days after the receipt thereof. In the event said statement is
not demanded, it shall be filed by each party, within ten days after
joinder of issue, in the court in which the procedure is pending. As
used in this section, the term net worth shall mean the amount by which
total assets including income exceed total liabilities including fixed
financial obligations. It shall include all income and assets of
whatsoever kind and nature and wherever situated and shall include a
list of all assets transferred in any manner during the preceding three
years, or the length of the marriage, whichever is shorter; provided,
however that transfers in the routine course of business which resulted
in an exchange of assets of substantially equivalent value need not be
specifically disclosed where such assets are otherwise identified in the
statement of net worth. Noncompliance shall be punishable by any or all
of the penalties prescribed in section thirty-one hundred twenty-six of
the civil practice law and rules, in examination before or during trial.
PART B
NEW ACTIONS OR PROCEEDINGS
Maintenance and distributive award. 1. Definitions. Whenever used in
this part, the following terms shall have the respective meanings
hereinafter set forth or indicated:
a. The term "maintenance" shall mean payments provided for in a valid
agreement between the parties or awarded by the court in accordance with
the provisions of subdivisions five-a and six of this part, to be paid
at fixed intervals for a definite or indefinite period of time, but an
award of maintenance shall terminate upon the death of either party or
upon the payee's valid or invalid marriage, or upon modification
pursuant to paragraph b of subdivision nine of this part or section two
hundred forty-eight of this chapter.
b. The term "distributive award" shall mean payments provided for in a
valid agreement between the parties or awarded by the court, in lieu of
or to supplement, facilitate or effectuate the division or distribution
of property where authorized in a matrimonial action, and payable either
in a lump sum or over a period of time in fixed amounts. Distributive
awards shall not include payments which are treated as ordinary income
to the recipient under the provisions of the United States Internal
Revenue Code.
c. The term "marital property" shall mean all property acquired by
either or both spouses during the marriage and before the execution of a
separation agreement or the commencement of a matrimonial action,
regardless of the form in which title is held, except as otherwise
provided in agreement pursuant to subdivision three of this part.
Marital property shall not include separate property as hereinafter
defined.
d. The term separate property shall mean:
(1) property acquired before marriage or property acquired by bequest,
devise, or descent, or gift from a party other than the spouse;
(2) compensation for personal injuries;
(3) property acquired in exchange for or the increase in value of
separate property, except to the extent that such appreciation is due in
part to the contributions or efforts of the other spouse;
(4) property described as separate property by written agreement of
the parties pursuant to subdivision three of this part.
e. The term "custodial parent" shall mean a parent to whom custody of
a child or children is granted by a valid agreement between the parties
or by an order or decree of a court.
f. The term "child support" shall mean a sum paid pursuant to court
order or decree by either or both parents or pursuant to a valid
agreement between the parties for care, maintenance and education of any
unemancipated child under the age of twenty-one years.
2. Matrimonial actions. a. Except as provided in subdivision five of
this part, the provisions of this part shall be applicable to actions
for an annulment or dissolution of a marriage, for a divorce, for a
separation, for a declaration of the nullity of a void marriage, for a
declaration of the validity or nullity of a foreign judgment of divorce,
for a declaration of the validity or nullity of a marriage, and to
proceedings to obtain maintenance or a distribution of marital property
following a foreign judgment of divorce, commenced on and after the
effective date of this part. Any application which seeks a modification
of a judgment, order or decree made in an action commenced prior to the
effective date of this part shall be heard and determined in accordance
with the provisions of part A of this section.
b. With respect to matrimonial actions which commence on or after the
effective date of this paragraph, the plaintiff shall cause to be served
upon the defendant, simultaneous with the service of the summons, a copy
of the automatic orders set forth in this paragraph. The automatic
orders shall take effect and be binding upon the plaintiff in a
matrimonial action immediately upon the filing of the summons, or
summons and complaint, and shall be binding upon the defendant
immediately upon the service of the automatic orders with the summons.
Each automatic order shall remain in full force and effect until the
judgment of divorce is entered or the action is dismissed, discontinued
or stayed, whichever shall occur first, unless the order is terminated,
modified or amended by further order of the court upon motion of either
of the parties or upon written agreement between the parties duly
executed and acknowledged. The automatic orders are as follows:
(1) Neither party shall sell, transfer, encumber, conceal, assign,
remove or in any way dispose of, without the consent of the other party
in writing, or by order of the court, any property (including, but not
limited to, real estate, personal property, cash accounts, stocks,
mutual funds, bank accounts, cars and boats) individually or jointly
held by the parties, except in the usual course of business, for
customary and usual household expenses or for reasonable attorney's fees
in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw
or in any way dispose of any tax deferred funds, stocks or other assets
held in any individual retirement accounts, 401K accounts, profit
sharing plans, Keogh accounts, or any other pension or retirement
account, and the parties shall further refrain from applying for or
requesting the payment of retirement benefits or annuity payments of any
kind, without the consent of the other party in writing, or upon further
order of the court; except that any party who is already in pay status
may continue to receive such payments thereunder.
(3) Neither party shall incur unreasonable debts hereafter, including,
but not limited to further borrowing against any credit line secured by
the family residence, further encumbrancing any assets, or unreasonably
using credit cards or cash advances against credit cards, except in the
usual course of business or for customary or usual household expenses,
or for reasonable attorney's fees in connection with this action.
(4) Neither party shall cause the other party or the children of the
marriage to be removed from any existing medical, hospital and dental
insurance coverage, and each party shall maintain the existing medical,
hospital and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life
insurance policies, and each party shall maintain the existing life
insurance, automobile insurance, homeowners and renters insurance
policies in full force and effect.
(6) If either party receives notice of a tax lien, foreclosure,
bankruptcy, or litigation, or the filing of same, or of the lifting of a
stay in bankruptcy, that could adversely affect the marital estate, that
party shall, within ten days after receiving such notice, send written
notice of such event to the other party.
3. Agreement of the parties. An agreement by the parties, made before
or during the marriage, shall be valid and enforceable in a matrimonial
action if such agreement is in writing, subscribed by the parties, and
acknowledged or proven in the manner required to entitle a deed to be
recorded. Notwithstanding any other provision of law, an acknowledgment
of an agreement made before marriage may be executed before any person
authorized to solemnize a marriage pursuant to subdivisions one, two and
three of section eleven of this chapter. Such an agreement may include
(1) a contract to make a testamentary provision of any kind, or a waiver
of any right to elect against the provisions of a will; (2) provision
for the ownership, division or distribution of separate and marital
property; (3) provision for the amount and duration of maintenance or
other terms and conditions of the marriage relationship, subject to the
provisions of section 5-311 of the general obligations law, and provided
that such terms were fair and reasonable at the time of the making of
the agreement and are not unconscionable at the time of entry of final
judgment; and (4) provision for the custody, care, education and
maintenance of any child of the parties, subject to the provisions of
section two hundred forty of this article. Nothing in this subdivision
shall be deemed to affect the validity of any agreement made prior to
the effective date of this subdivision.
4. Compulsory financial disclosure. a. In all matrimonial actions and
proceedings in which alimony, maintenance or support is in issue, there
shall be compulsory disclosure by both parties of their respective
financial states. No showing of special circumstances shall be required
before such disclosure is ordered. A sworn statement of net worth shall
be provided upon receipt of a notice in writing demanding the same,
within twenty days after the receipt thereof. In the event said
statement is not demanded, it shall be filed with the clerk of the court
by each party, within ten days after joinder of issue, in the court in
which the proceeding is pending. As used in this part, the term "net
worth" shall mean the amount by which total assets including income
exceed total liabilities including fixed financial obligations. It shall
include all income and assets of whatsoever kind and nature and wherever
situated and shall include a list of all assets transferred in any
manner during the preceding three years, or the length of the marriage,
whichever is shorter; provided, however that transfers in the routine
course of business which resulted in an exchange of assets of
substantially equivalent value need not be specifically disclosed where
such assets are otherwise identified in the statement of net worth. All
such sworn statements of net worth shall be accompanied by a current and
representative paycheck stub and the most recently filed state and
federal income tax returns including a copy of the W-2(s) wage and tax
statement(s) submitted with the returns. In addition, both parties shall
provide information relating to any and all group health plans available
to them for the provision of care or other medical benefits by insurance
or otherwise for the benefit of the child or children for whom support
is sought, including all such information as may be required to be
included in a qualified medical child support order as defined in
section six hundred nine of the employee retirement income security act
of 1974 (29 USC 1169) including, but not limited to: (i) the name and
last known mailing address of each party and of each dependent to be
covered by the order; (ii) the identification and a description of each
group health plan available for the benefit or coverage of the
disclosing party and the child or children for whom support is sought;
(iii) a detailed description of the type of coverage available from each
group health plan for the potential benefit of each such dependent; (iv)
the identification of the plan administrator for each such group health
plan and the address of such administrator; (v) the identification
numbers for each such group health plan; and (vi) such other information
as may be required by the court. Noncompliance shall be punishable by
any or all of the penalties prescribed in section thirty-one hundred
twenty-six of the civil practice law and rules, in examination before or
during trial.
b. As soon as practicable after a matrimonial action has been
commenced, the court shall set the date or dates the parties shall use
for the valuation of each asset. The valuation date or dates may be
anytime from the date of commencement of the action to the date of
trial.
5. Disposition of property in certain matrimonial actions. a. Except
where the parties have provided in an agreement for the disposition of
their property pursuant to subdivision three of this part, the court, in
an action wherein all or part of the relief granted is divorce, or the
dissolution, annulment or declaration of the nullity of a marriage, and
in proceedings to obtain a distribution of marital property following a
foreign judgment of divorce, shall determine the respective rights of
the parties in their separate or marital property, and shall provide for
the disposition thereof in the final judgment.
b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the
parties, considering the circumstances of the case and of the respective
parties.
d. In determining an equitable disposition of property under paragraph
c, the court shall consider:
(1) the income and property of each party at the time of marriage, and
at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both
parties;
(3) the need of a custodial parent to occupy or own the marital
residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the
marriage as of the date of dissolution;
(5) the loss of health insurance benefits upon dissolution of the
marriage;
(6) any award of maintenance under subdivision six of this part;
(7) any equitable claim to, interest in, or direct or indirect
contribution made to the acquisition of such marital property by the
party not having title, including joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and
homemaker, and to the career or career potential of the other party. The
court shall not consider as marital property subject to distribution the
value of a spouse's enhanced earning capacity arising from a license,
degree, celebrity goodwill, or career enhancement. However, in arriving
at an equitable division of marital property, the court shall consider
the direct or indirect contributions to the development during the
marriage of the enhanced earning capacity of the other spouse;
(8) the liquid or non-liquid character of all marital property;
(9) the probable future financial circumstances of each party;
(10) the impossibility or difficulty of evaluating any component asset
or any interest in a business, corporation or profession, and the
economic desirability of retaining such asset or interest intact and
free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
(14) whether either party has committed an act or acts of domestic
violence, as described in subdivision one of section four hundred
fifty-nine-a of the social services law, against the other party and the
nature, extent, duration and impact of such act or acts;
(15) in awarding the possession of a companion animal, the court shall
consider the best interest of such animal. "Companion animal", as used
in this subparagraph, shall have the same meaning as in subdivision five
of section three hundred fifty of the agriculture and markets law; and
(16) any other factor which the court shall expressly find to be just
and proper.
e. In any action in which the court shall determine that an equitable
distribution is appropriate but would be impractical or burdensome or
where the distribution of an interest in a business, corporation or
profession would be contrary to law, the court in lieu of such equitable
distribution shall make a distributive award in order to achieve equity
between the parties. The court in its discretion, also may make a
distributive award to supplement, facilitate or effectuate a
distribution of marital property.
f. In addition to the disposition of property as set forth above, the
court may make such order regarding the use and occupancy of the marital
home and its household effects as provided in section two hundred
thirty-four of this chapter, without regard to the form of ownership of
such property.
g. In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
h. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph d of this subdivision.
5-a. Temporary maintenance awards. a. Except where the parties have
entered into an agreement providing for maintenance pursuant to
subdivision three of this part, in any matrimonial action the court,
upon application by a party, shall make its award for temporary
maintenance pursuant to the provisions of this subdivision.
b. For purposes of this subdivision, the following definitions shall
be used:
(1) "Payor" shall mean the spouse with the higher income.
(2) "Payee" shall mean the spouse with the lower income.
(3) "Length of marriage" shall mean the period from the date of
marriage until the date of commencement of action.
(4) "Income" shall mean income as defined in the child support
standards act and codified in section two hundred forty of this article
and section four hundred thirteen of the family court act without
subtracting alimony or maintenance actually paid or to be paid to a
spouse that is a party to the instant action pursuant to subclause (C)
of clause (vii) of subparagraph five of paragraph (b) of subdivision
one-b of section two hundred forty of this article and subclause (C) of
clause (vii) of subparagraph five of paragraph (b) of subdivision one of
section four hundred thirteen of the family court act and without
subtracting spousal support paid pursuant to section four hundred twelve
of such act.
(5) "Income cap" shall mean up to and including one hundred
eighty-four thousand dollars of the payor's annual income; provided,
however, beginning March first, two thousand twenty and every two years
thereafter, the income cap amount shall increase by the sum of the
average annual percentage changes in the consumer price index for all
urban consumers (CPI-U) as published by the United States department of
labor bureau of labor statistics for the prior two years multiplied by
the then income cap and then rounded to the nearest one thousand
dollars. The office of court administration shall determine and publish
the income cap.
(6) "Guideline amount of temporary maintenance" shall mean the dollar
amount derived by the application of paragraph c or d of this
subdivision.
(7) "Self-support reserve" shall mean the self-support reserve as
defined in the child support standards act and codified in section two
hundred forty of this article and section four hundred thirteen of the
family court act.
(8) "Agreement" shall have the same meaning as provided in subdivision
three of this part.
c. Where the payor's income is lower than or equal to the income cap,
the court shall determine the guideline amount of temporary maintenance
as follows:
(1) Where child support will be paid for children of the marriage and
where the payor as defined in this subdivision is also the non-custodial
parent pursuant to the child support standards act:
(a) the court shall subtract twenty-five percent of the payee's income
from twenty percent of the payor's income.
(b) the court shall then multiply the sum of the payor's income and
the payee's income by forty percent.
(c) the court shall subtract the payee's income from the amount
derived from clause (b) of this subparagraph.
(d) the court shall determine the lower of the two amounts derived by
clauses (a) and (c) of this subparagraph.
(e) the guideline amount of temporary maintenance shall be the amount
determined by clause (d) of this subparagraph except that, if the amount
determined by clause (d) of this subparagraph is less than or equal to
zero, the guideline amount of temporary maintenance shall be zero
dollars.
(f) temporary maintenance shall be calculated prior to child support
because the amount of temporary maintenance shall be subtracted from the
payor's income and added to the payee's income as part of the
calculation of the child support obligation.
(2) Where child support will not be paid for children of the marriage,
or where child support will be paid for children of the marriage but the
payor as defined in this subdivision is the custodial parent pursuant to
the child support standards act:
(a) the court shall subtract twenty percent of the payee's income from
thirty percent of the payor's income.
(b) the court shall then multiply the sum of the payor's income and
the payee's income by forty percent.
(c) the court shall subtract the payee's income from the amount
derived from clause (b) of this subparagraph.
(d) the court shall determine the lower of the two amounts derived by
clauses (a) and (c) of this subparagraph.
(e) the guideline amount of temporary maintenance shall be the amount
determined by clause (d) of this subparagraph except that, if the amount
determined by clause (d) of this subparagraph is less than or equal to
zero, the guideline amount of temporary maintenance shall be zero
dollars.
(f) if child support will be paid for children of the marriage but the
payor as defined in this subdivision is the custodial parent pursuant to
the child support standards act, temporary maintenance shall be
calculated prior to child support because the amount of temporary
maintenance shall be subtracted from the payor's income pursuant to this
subdivision and added to the payee's income pursuant to this subdivision
as part of the calculation of the child support obligation.
d. Where the payor's income exceeds the income cap, the court shall
determine the guideline amount of temporary maintenance as follows:
(1) the court shall perform the calculations set forth in paragraph c
of this subdivision for the income of the payor up to and including the
income cap; and
(2) for income exceeding the cap, the amount of additional maintenance
awarded, if any, shall be within the discretion of the court which shall
take into consideration any one or more of the factors set forth in
subparagraph one of paragraph h of this subdivision; and
(3) the court shall set forth the factors it considered and the
reasons for its decision in writing or on the record. Such decision,
whether in writing or on the record, may not be waived by either party
or counsel.
e. Notwithstanding the provisions of this subdivision, where the
guideline amount of temporary maintenance would reduce the payor's
income below the self-support reserve for a single person, the guideline
amount of temporary maintenance shall be the difference between the
payor's income and the self-support reserve. If the payor's income is
below the self-support reserve, there shall be a rebuttable presumption
that no temporary maintenance is awarded.
f. The court shall determine the duration of temporary maintenance by
considering the length of the marriage.
g. Temporary maintenance shall terminate no later than the issuance of
the judgment of divorce or the death of either party, whichever occurs
first.
h. (1) The court shall order the guideline amount of temporary
maintenance up to the income cap in accordance with paragraph c of this
subdivision, unless the court finds that the guideline amount of
temporary maintenance is unjust or inappropriate, which finding shall be
based upon consideration of any one or more of the following factors,
and adjusts the guideline amount of temporary maintenance accordingly
based upon such consideration:
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a
history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award during the pendency of
the temporary maintenance award when the calculation of temporary
maintenance was based upon child support being awarded and which
resulted in a maintenance award lower than it would have been had child
support not been awarded;
(e) the wasteful dissipation of marital property, including transfers
or encumbrances made in contemplation of a matrimonial action without
fair consideration;
(f) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(g) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children or stepchildren, disabled adult children or
stepchildren, elderly parents or in-laws provided during the marriage
that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the
marriage;
(l) the reduced or lost earning capacity of the payee as a result of
having forgone or delayed education, training, employment or career
opportunities during the marriage; and
(m) any other factor which the court shall expressly find to be just
and proper.
(2) Where the court finds that the guideline amount of temporary
maintenance is unjust or inappropriate and the court adjusts the
guideline amount of temporary maintenance pursuant to this paragraph,
the court shall set forth, in a written decision or on the record, the
guideline amount of temporary maintenance, the factors it considered,
and the reasons that the court adjusted the guideline amount of
temporary maintenance. Such decision, whether in writing or on the
record, shall not be waived by either party or counsel.
(3) Where either or both parties are unrepresented, the court shall
not enter a temporary maintenance order unless the court informs the
unrepresented party or parties of the guideline amount of temporary
maintenance.
i. Nothing contained in this subdivision shall be construed to alter
the rights of the parties to voluntarily enter into agreements or
stipulations as defined in subdivision three of this part which deviate
from the presumptive award of temporary maintenance.
j. When a payor has defaulted and/or the court is otherwise presented
with insufficient evidence to determine income, the court shall order
the temporary maintenance award based upon the needs of the payee or the
standard of living of the parties prior to commencement of the divorce
action, whichever is greater. Such order may be retroactively modified
upward without a showing of change in circumstances upon a showing of
newly discovered evidence.
k. In any action or proceeding for modification of an order of
maintenance or alimony existing prior to the effective date of this
subdivision, brought pursuant to this article, the temporary maintenance
guidelines set forth in this subdivision shall not constitute a change
of circumstances warranting modification of such support order.
l. In any action or proceeding for modification where the parties have
entered into an agreement providing for maintenance pursuant to
subdivision three of this part entered into prior to the effective date
of this subdivision, brought pursuant to this article, the temporary
maintenance guidelines set forth in this subdivision shall not
constitute a change of circumstances warranting modification of such
support order.
m. In determining temporary maintenance, the court shall consider and
allocate, where appropriate, the responsibilities of the respective
spouses for the family's expenses during the pendency of the proceeding.
n. The temporary maintenance order shall not prejudice the rights of
either party regarding a post-divorce maintenance award.
6. Post-divorce maintenance awards. a. Except where the parties have
entered into an agreement pursuant to subdivision three of this part
providing for maintenance, in any matrimonial action, the court, upon
application by a party, shall make its award for post-divorce
maintenance pursuant to the provisions of this subdivision.
b. For purposes of this subdivision, the following definitions shall
be used:
(1) "Payor" shall mean the spouse with the higher income.
(2) "Payee" shall mean the spouse with the lower income.
(3) "Income" shall mean:
(a) income as defined in the child support standards act and codified
in section two hundred forty of this article and section four hundred
thirteen of the family court act, without subtracting alimony or
maintenance actually paid or to be paid to a spouse that is a party to
the instant action pursuant to subclause (C) of clause (vii) of
subparagraph five of paragraph (b) of subdivision one-b of section two
hundred forty of this article and subclause (C) of clause (vii) of
subparagraph five of paragraph (b) of subdivision one of section four
hundred thirteen of the family court act and without subtracting spousal
support paid pursuant to section four hundred twelve of such act; and
(b) income from income-producing property distributed or to be
distributed pursuant to subdivision five of this part.
(4) "Income cap" shall mean up to and including one hundred
eighty-four thousand dollars of the payor's annual income; provided,
however, beginning March first, two thousand twenty and every two years
thereafter, the income cap amount shall increase by the sum of the
average annual percentage changes in the consumer price index for all
urban consumers (CPI-U) as published by the United States department of
labor bureau of labor statistics for the prior two years multiplied by
the then income cap and then rounded to the nearest one thousand
dollars. The office of court administration shall determine and publish
the income cap.
(5) "Guideline amount of post-divorce maintenance" shall mean the
dollar amount derived by the application of paragraph c or d of this
subdivision.
(6) "Guideline duration of post-divorce maintenance" shall mean the
durational period determined by the application of paragraph f of this
subdivision.
(7) "Post-divorce maintenance guideline obligation" shall mean the
guideline amount of post-divorce maintenance and the guideline duration
of post-divorce maintenance.
(8) "Length of marriage" shall mean the period from the date of
marriage until the date of commencement of the action.
(9) "Self-support reserve" shall mean the self-support reserve as
defined in the child support standards act and codified in section two
hundred forty of this article and section four hundred thirteen of the
family court act.
(10) "Agreement" shall have the same meaning as provided in
subdivision three of this part.
c. Where the payor's income is lower than or equal to the income cap,
the court shall determine the guideline amount of post-divorce
maintenance as follows:
(1) Where child support will be paid for children of the marriage and
where the payor as defined in this subdivision is also the non-custodial
parent pursuant to the child support standards act:
(a) the court shall subtract twenty-five percent of the payee's income
from twenty percent of the payor's income.
(b) the court shall then multiply the sum of the payor's income and
the payee's income by forty percent.
(c) the court shall subtract the payee's income from the amount
derived from clause (b) of this subparagraph.
(d) the court shall determine the lower of the two amounts derived by
clauses (a) and (c) of this subparagraph.
(e) the guideline amount of post-divorce maintenance shall be the
amount determined by clause (d) of this subparagraph except that, if the
amount determined by clause (d) of this subparagraph is less than or
equal to zero, the guideline amount of post-divorce maintenance shall be
zero dollars.
(f) notwithstanding the provisions of this subdivision, where the
guideline amount of post-divorce maintenance would reduce the payor's
income below the self-support reserve for a single person, the guideline
amount of post-divorce maintenance shall be the difference between the
payor's income and the self-support reserve. If the payor's income is
below the self-support reserve, there shall be a rebuttable presumption
that no post-divorce maintenance is awarded.
(g) maintenance shall be calculated prior to child support because the
amount of maintenance shall be subtracted from the payor's income and
added to the payee's income as part of the calculation of the child
support obligation.
(2) Where child support will not be paid for children of the marriage,
or where child support will be paid for children of the marriage but the
payor as defined in this subdivision is the custodial parent pursuant to
the child support standards act:
(a) the court shall subtract twenty percent of the payee's income from
thirty percent of the payor's income.
(b) the court shall then multiply the sum of the payor's income and
the payee's income by forty percent.
(c) the court shall subtract the payee's income from the amount
derived from clause (b) of this subparagraph.
(d) the court shall determine the lower of the two amounts derived by
clauses (a) and (c) of this subparagraph.
(e) the guideline amount of post-divorce maintenance shall be the
amount determined by clause (d) of this subparagraph except that, if the
amount determined by clause (d) of this subparagraph is less than or
equal to zero, the guideline amount of post-divorce maintenance shall be
zero dollars.
(f) if child support will be paid for children of the marriage but the
payor as defined in this subdivision is the custodial parent pursuant to
the child support standards act, post-divorce maintenance shall be
calculated prior to child support because the amount of post-divorce
maintenance shall be subtracted from the payor's income pursuant to this
subdivision and added to the payee's income pursuant to this subdivision
as part of the calculation of the child support obligation.
(g) notwithstanding the provisions of this subdivision, where the
guideline amount of post-divorce maintenance would reduce the payor's
income below the self-support reserve for a single person, the guideline
amount of post-divorce maintenance shall be the difference between the
payor's income and the self-support reserve. If the payor's income is
below the self-support reserve, there shall be a rebuttable presumption
that no post-divorce maintenance is awarded.
d. Where the payor's income exceeds the income cap, the court shall
determine the guideline amount of post-divorce maintenance as follows:
(1) the court shall perform the calculations set forth in paragraph c
of this subdivision for the income of payor up to and including the
income cap; and
(2) for income exceeding the cap, the amount of additional maintenance
awarded, if any, shall be within the discretion of the court which shall
take into consideration any one or more of the factors set forth in
subparagraph one of paragraph e of this subdivision; and
(3) the court shall set forth the factors it considered and the
reasons for its decision in writing or on the record. Such decision,
whether in writing or on the record, may not be waived by either party
or counsel.
e. (1) The court shall order the post-divorce maintenance guideline
obligation up to the income cap in accordance with paragraph c of this
subdivision, unless the court finds that the post-divorce maintenance
guideline obligation is unjust or inappropriate, which finding shall be
based upon consideration of any one or more of the following factors,
and adjusts the post-divorce maintenance guideline obligation
accordingly based upon such consideration:
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a
history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award before the termination of
the maintenance award when the calculation of maintenance was based upon
child support being awarded which resulted in a maintenance award lower
than it would have been had child support not been awarded;
(e) the wasteful dissipation of marital property, including transfers
or encumbrances made in contemplation of a matrimonial action without
fair consideration;
(f) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;
(g) acts by one party against another that have inhibited or continue
to inhibit a party's earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic
violence as provided in section four hundred fifty-nine-a of the social
services law;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children or stepchildren, disabled adult children or
stepchildren, elderly parents or in-laws provided during the marriage
that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the
marriage;
(l) the reduced or lost earning capacity of the payee as a result of
having forgone or delayed education, training, employment or career
opportunities during the marriage;
(m) the equitable distribution of marital property and the income or
imputed income on the assets so distributed;
(n) the contributions and services of the payee as a spouse, parent,
wage earner and homemaker and to the career or career potential of the
other party; and
(o) any other factor which the court shall expressly find to be just
and proper.
(2) Where the court finds that the post-divorce maintenance guideline
obligation is unjust or inappropriate and the court adjusts the
post-divorce maintenance guideline obligation pursuant to this
paragraph, the court shall set forth, in a written decision or on the
record, the unadjusted post-divorce maintenance guideline obligation,
the factors it considered, and the reasons that the court adjusted the
post-divorce maintenance obligation. Such decision shall not be waived
by either party or counsel.
f. The duration of post-divorce maintenance may be determined as
follows:
(1) The court may determine the duration of post-divorce maintenance
in accordance with the following advisory schedule:
Length of the marriage Percent of the length of the
marriage for which
maintenance will be payable
0 up to and including 15 years 15% - 30%
More than 15 up to and including 30% - 40%
20 years
More than 20 years 35% - 50%
(2) In determining the duration of post-divorce maintenance, whether
or not the court utilizes the advisory schedule, it shall consider the
factors listed in subparagraph one of paragraph e of this subdivision
and shall set forth, in a written decision or on the record, the factors
it considered. Such decision shall not be waived by either party or
counsel. Nothing herein shall prevent the court from awarding
non-durational maintenance in an appropriate case.
(3) Notwithstanding the provisions of subparagraph one of this
paragraph, post-divorce maintenance shall terminate upon the death of
either party or upon the payee's valid or invalid marriage, or upon
modification pursuant to paragraph b of subdivision nine of this part or
section two hundred forty-eight of this article.
(4) Notwithstanding the provisions of subparagraph one of this
paragraph, when determining duration of post-divorce maintenance, the
court shall take into consideration anticipated retirement assets,
benefits, and retirement eligibility age of both parties if
ascertainable at the time of decision. If not ascertainable at the time
of decision, the actual full or partial retirement of the payor with
substantial diminution of income shall be a basis for a modification of
the award.
g. Where either or both parties are unrepresented, the court shall not
enter a maintenance order or judgment unless the court informs the
unrepresented party or parties of the post-divorce maintenance guideline
obligation.
h. Nothing contained in this subdivision shall be construed to alter
the rights of the parties to voluntarily enter into validly executed
agreements or stipulations which deviate from the post-divorce
maintenance guideline obligation.
i. When a payor has defaulted and/or the court makes a finding at the
time of trial that it was presented with insufficient evidence to
determine income, the court shall order the post-divorce maintenance
based upon the needs of the payee or the standard of living of the
parties prior to commencement of the divorce action, whichever is
greater. Such order may be retroactively modified upward without a
showing of change in circumstances upon a showing of substantial newly
discovered evidence.
j. Post-divorce maintenance may be modified pursuant to paragraph b of
subdivision nine of this part.
k. In any action or proceeding for modification of an order of
maintenance or alimony existing prior to the effective date of the
chapter of the laws of two thousand fifteen which amended this
subdivision, brought pursuant to this article, the guidelines for
post-divorce maintenance set forth in this subdivision shall not
constitute a change of circumstances warranting modification of such
support order.
l. In any action or proceeding for modification where the parties have
entered into an agreement providing for maintenance pursuant to
subdivision three of this part entered into prior to the effective date
of the chapter of the laws of two thousand fifteen which amended this
subdivision, brought pursuant to this article, the guidelines for
post-divorce maintenance set forth in this subdivision shall not
constitute a change of circumstances warranting modification of such
agreement.
m. In any action or proceeding for modification of an order of
maintenance or alimony existing prior to the effective date of the
chapter of the laws of two thousand fifteen which amended this
subdivision, brought pursuant to this article, the guidelines for
post-divorce maintenance set forth in paragraphs c, d and e of this
subdivision shall not apply.
n. In any action or proceeding for modification where the parties have
entered into an agreement providing for maintenance pursuant to
subdivision three of this part entered into prior to the effective date
of the chapter of the laws of two thousand fifteen which amended this
subdivision, brought pursuant to this article, the guidelines for
post-divorce maintenance set forth in paragraphs c, d and e of this
subdivision shall not apply.
o. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph e of this subdivision.
6-a. Law revision commission study. a. The legislature hereby finds
and declares it to be the policy of the state that it is necessary to
achieve equitable outcomes when families divorce and it is important to
ensure that the economic consequences of a divorce are fairly shared by
divorcing couples. Serious concerns have been raised that the
implementation of New York state's maintenance laws have not resulted in
equitable results. Maintenance is often not granted and where it is
granted, the results are inconsistent and unpredictable. This raises
serious concerns about the ability of our current maintenance laws to
achieve equitable and fair outcomes.
The legislature further finds a comprehensive review of the provisions
of our state's maintenance laws should be undertaken. It has been thirty
years since the legislature significantly reformed our state's divorce
laws by enacting equitable distribution of marital property and
introduced the concept of maintenance to replace alimony. Concerns that
the implementation of our maintenance laws have not resulted in
equitable results compel the need for a review of these laws.
b. The law revision commission is hereby directed to:
(1) review and assess the economic consequences of divorce on the
parties;
(2) review the maintenance laws of the state, including the way in
which they are administered to determine the impact of these laws on
post marital economic disparities, and the effectiveness of such laws
and their administration in achieving the state's policy goals and
objectives of ensuring that the economic consequences of a divorce are
fairly and equitably shared by the divorcing couple; and
(3) make recommendations to the legislature, including such proposed
revisions of such laws as it determines necessary to achieve these goals
and objectives.
c. The law revision commission shall make a preliminary report to the
legislature and the governor of its findings, conclusions, and any
recommendations not later than nine months from the effective date of
this subdivision, and a final report of its findings, conclusions and
recommendations not later than December thirty-first, two thousand
eleven.
7. Child support. a. In any matrimonial action, or in an independent
action for child support, the court as provided in section two hundred
forty of this chapter shall order either or both parents to pay
temporary child support or child support without requiring a showing of
immediate or emergency need. The court shall make an order for temporary
child support notwithstanding that information with respect to income
and assets of either or both parents may be unavailable. Where such
information is available, the court may make an order for temporary
child support pursuant to section two hundred forty of this article.
Such order shall, except as provided for herein, be effective as of the
date of the application therefor, and any retroactive amount of child
support due shall be support arrears/past due support and shall be paid
in one sum or periodic sums, as the court shall direct, taking into
account any amount of temporary child support which has been paid. In
addition, such retroactive child support shall be enforceable in any
manner provided by law including, but not limited to, an execution for
support enforcement pursuant to subdivision (b) of section fifty-two
hundred forty-one of the civil practice law and rules. When a child
receiving support is a public assistance recipient, or the order of
support is being enforced or is to be enforced pursuant to section one
hundred eleven-g of the social services law, the court shall establish
the amount of retroactive child support and notify the parties that such
amount shall be enforced by the support collection unit pursuant to an
execution for support enforcement as provided for in subdivision (b) of
section fifty-two hundred forty-one of the civil practice law and rules,
or in such periodic payments as would have been authorized had such an
execution been issued. In such case, the court shall not direct the
schedule of repayment of retroactive support. The court shall not
consider the misconduct of either party but shall make its award for
child support pursuant to section two hundred forty of this article.
b. Notwithstanding any other provision of law, any written application
or motion to the court for the establishment of a child support
obligation for persons not in receipt of family assistance must contain
either a request for child support enforcement services which would
authorize the collection of the support obligation by the immediate
issuance of an income execution for support enforcement as provided for
by this chapter, completed in the manner specified in section one
hundred eleven-g of the social services law; or a statement that the
applicant has applied for or is in receipt of such services; or a
statement that the applicant knows of the availability of such services,
has declined them at this time and where support enforcement services
pursuant to section one hundred eleven-g of the social services law have
been declined that the applicant understands that an income deduction
order may be issued pursuant to subdivision (c) of section five thousand
two hundred forty-two of the civil practice law and rules without other
child support enforcement services and that payment of an administrative
fee may be required. The court shall provide a copy of any such request
for child support enforcement services to the support collection unit of
the appropriate social services district any time it directs payments to
be made to such support collection unit. Additionally, the copy of any
such request shall be accompanied by the name, address and social
security number of the parties; the date and place of the parties'
marriage; the name and date of birth of the child or children; and the
name and address of the employers and income payors of the party from
whom child support is sought. Unless the party receiving child support
has applied for or is receiving such services, the court shall not
direct such payments to be made to the support collection unit, as
established in section one hundred eleven-h of the social services law.
c. The court shall direct that a copy of any child support or combined
child and spousal support order issued by the court on or after the
first day of October, nineteen hundred ninety-eight, in any proceeding
under this section be provided promptly to the state case registry
established pursuant to subdivision four-a of section one hundred
eleven-b of the social services law.
d. Any child support order made by the court in any proceeding under
the provisions of this section shall include, on its face, a notice
printed or typewritten in a size equal to at least eight point bold type
informing the parties of their right to seek a modification of the child
support order upon a showing of:
(i) a substantial change in circumstances; or
(ii) that three years have passed since the order was entered, last
modified or adjusted; or
(iii) there has been a change in either party's gross income by
fifteen percent or more since the order was entered, last modified, or
adjusted;
however, if the parties have specifically opted out of subparagraph (ii)
or (iii) of this paragraph in a validly executed agreement or
stipulation, then that basis to seek modification does not apply.
8. Special relief in matrimonial actions. a. In any matrimonial
action the court may order a party to purchase, maintain or assign a
policy of insurance providing benefits for health and hospital care and
related services for either spouse or children of the marriage not to
exceed such period of time as such party shall be obligated to provide
maintenance, child support or make payments of a distributive award. The
court may also order a party to purchase, maintain or assign a policy of
accident insurance or insurance on the life of either spouse, and to
designate in the case of life insurance, either spouse or children of
the marriage, or in the case of accident insurance, the insured spouse
as irrevocable beneficiaries during a period of time fixed by the court.
The obligation to provide such insurance shall cease upon the
termination of the spouse's duty to provide maintenance, child support
or a distributive award. A copy of such order shall be served, by
registered mail, on the home office of the insurer specifying the name
and mailing address of the spouse or children, provided that failure to
so serve the insurer shall not affect the validity of the order.
b. In any action where the court has ordered temporary maintenance,
maintenance, distributive award or child support, the court may direct
that a payment be made directly to the other spouse or a third person
for real and personal property and services furnished to the other
spouse, or for the rental or mortgage amortization or interest payments,
insurances, taxes, repairs or other carrying charges on premises
occupied by the other spouse, or for both payments to the other spouse
and to such third persons. Such direction may be made notwithstanding
that the parties continue to reside in the same abode and
notwithstanding that the court refuses to grant the relief requested by
the other spouse.
c. Any order or judgment made as in this section provided may combine
any amount payable to either spouse under this section with any amount
payable to such spouse as child support or under section two hundred
forty of this chapter.
9. Enforcement and modification of orders and judgments in matrimonial
actions. a. All orders or judgments entered in matrimonial actions shall
be enforceable pursuant to section fifty-two hundred forty-one or
fifty-two hundred forty-two of the civil practice law and rules, or in
any other manner provided by law. Orders or judgments for child support,
alimony and maintenance shall also be enforceable pursuant to article
fifty-two of the civil practice law and rules upon a debtor's default as
such term is defined in paragraph seven of subdivision (a) of section
fifty-two hundred forty-one of the civil practice law and rules. The
establishment of a default shall be subject to the procedures
established for the determination of a mistake of fact for income
executions pursuant to subdivision (e) of section fifty-two hundred
forty-one of the civil practice law and rules. For the purposes of
enforcement of child support orders or combined spousal and child
support orders pursuant to section five thousand two hundred forty-one
of the civil practice law and rules, a "default" shall be deemed to
include amounts arising from retroactive support. The court may, and if
a party shall fail or refuse to pay maintenance, distributive award or
child support the court shall, upon notice and an opportunity to the
defaulting party to be heard, require the party to furnish a surety, or
the sequestering and sale of assets for the purpose of enforcing any
award for maintenance, distributive award or child support and for the
payment of reasonable and necessary attorney's fees and disbursements.
b. (1) Upon application by either party, the court may annul or modify
any prior order or judgment made after trial as to maintenance, upon a
showing of the payee's inability to be self-supporting or upon a showing
of a substantial change in circumstance, including financial hardship or
upon actual full or partial retirement of the payor if the retirement
results in a substantial change in financial circumstances. Where, after
the effective date of this part, an agreement remains in force, no
modification of an order or judgment incorporating the terms of said
agreement shall be made as to maintenance without a showing of extreme
hardship on either party, in which event the judgment or order as
modified shall supersede the terms of the prior agreement and judgment
for such period of time and under such circumstances as the court
determines. The court shall not reduce or annul any arrears of
maintenance which have been reduced to final judgment pursuant to
section two hundred forty-four of this article. No other arrears of
maintenance which have accrued prior to the making of such application
shall be subject to modification or annulment unless the defaulting
party shows good cause for failure to make application for relief from
the judgment or order directing such payment prior to the accrual of
such arrears and the facts and circumstances constituting good cause are
set forth in a written memorandum of decision. Such modification may
increase maintenance nunc pro tunc as of the date of application based
on newly discovered evidence. Any retroactive amount of maintenance due
shall, except as provided for herein, be paid in one sum or periodic
sums, as the court directs, taking into account any temporary or partial
payments which have been made. The provisions of this subdivision shall
not apply to a separation agreement made prior to the effective date of
this part.
(2) (i) The court may modify an order of child support, including an
order incorporating without merging an agreement or stipulation of the
parties, upon a showing of a substantial change in circumstances.
Incarceration shall not be considered voluntary unemployment and shall
not be a bar to finding a substantial change in circumstances.
(ii) In addition, unless the parties have specifically opted out of
the following provisions in a validly executed agreement or stipulation
entered into between the parties, the court may modify an order of child
support where:
(A) three years have passed since the order was entered, last modified
or adjusted; or
(B) there has been a change in either party's gross income by fifteen
percent or more since the order was entered, last modified, or adjusted.
A reduction in income shall not be considered as a ground for
modification unless it was involuntary and the party has made diligent
attempts to secure employment commensurate with his or her education,
ability, and experience.
(iii) No modification or annulment shall reduce or annul any arrears
of child support which have accrued prior to the date of application to
annul or modify any prior order or judgment as to child support. Such
modification may increase child support nunc pro tunc as of the date of
application based on newly discovered evidence. Any retroactive amount
of child support due shall, except as provided for in this subparagraph,
be paid in one sum or periodic sums, as the court directs, taking into
account any temporary or partial payments which have been made. Any
retroactive amount of child support due shall be support arrears/past
due support. In addition, such retroactive child support shall be
enforceable in any manner provided by law including, but not limited to,
an execution for support enforcement pursuant to subdivision (b) of
section fifty-two hundred forty-one of the civil practice law and rules.
When a child receiving support is a public assistance recipient, or the
order of support is being enforced or is to be enforced pursuant to
section one hundred eleven-g of the social services law, the court shall
establish the amount of retroactive child support and notify the parties
that such amount shall be enforced by the support collection unit
pursuant to an immediate execution for support enforcement as provided
for by this chapter, or in such periodic payments as would have been
authorized had such an execution been issued. In such case, the court
shall not direct the schedule of repayment of retroactive support.
c. Notwithstanding any other provision of law, any written application
or motion to the court for the modification or enforcement of a child
support or combined maintenance and child support order for persons not
in receipt of family assistance must contain either a request for child
support enforcement services which would authorize the collection of the
support obligation by the immediate issuance of an income execution for
support enforcement as provided for by this chapter, completed in the
manner specified in section one hundred eleven-g of the social services
law; or a statement that the applicant has applied for or is in receipt
of such services; or a statement that the applicant knows of the
availability of such services, has declined them at this time and where
support enforcement services pursuant to section one hundred eleven-g of
the social services law have been declined that the applicant
understands that an income deduction order may be issued pursuant to
subdivision (c) of section five thousand two hundred forty-two of the
civil practice law and rules without other child support enforcement
services and that payment of an administrative fee may be required. The
court shall provide a copy of any such request for child support
enforcement services to the support collection unit of the appropriate
social services district any time it directs payments to be made to such
support collection unit. Additionally, the copy of such request shall be
accompanied by the name, address and social security number of the
parties; the date and place of the parties' marriage; the name and date
of birth of the child or children; and the name and address of the
employers and income payors of the party ordered to pay child support to
the other party. Unless the party receiving child support or combined
maintenance and child support has applied for or is receiving such
services, the court shall not direct such payments to be made to the
support collection unit, as established in section one hundred eleven-h
of the social services law.
d. The court shall direct that a copy of any child support or combined
child and spousal support order issued by the court on or after the
first day of October, nineteen hundred ninety-eight, in any proceeding
under this section be provided promptly to the state case registry
established pursuant to subdivision four-a of section one hundred
eleven-b of the social services law.
Counsel fees and expenses. (a) In any action or proceeding
brought (1) to annul a marriage or to declare the nullity of a void
marriage, or (2) for a separation, or (3) for a divorce, or (4) to
declare the validity or nullity of a judgment of divorce rendered
against a spouse who was the defendant in any action outside the State
of New York and did not appear therein where such spouse asserts the
nullity of such foreign judgment, (5) to obtain maintenance or
distribution of property following a foreign judgment of divorce, or (6)
to enjoin the prosecution in any other jurisdiction of an action for a
divorce, the court may direct either spouse or, where an action for
annulment is maintained after the death of a spouse, may direct the
person or persons maintaining the action, to pay counsel fees and fees
and expenses of experts directly to the attorney of the other spouse to
enable the other party to carry on or defend the action or proceeding
as, in the court's discretion, justice requires, having regard to the
circumstances of the case and of the respective parties. There shall be
a rebuttable presumption that counsel fees shall be awarded to the less
monied spouse. In exercising the court's discretion, the court shall
seek to assure that each party shall be adequately represented and that
where fees and expenses are to be awarded, they shall be awarded on a
timely basis, pendente lite, so as to enable adequate representation
from the commencement of the proceeding. Applications for the award of
fees and expenses may be made at any time or times prior to final
judgment. Both parties to the action or proceeding and their respective
attorneys, shall file an affidavit with the court detailing the
financial agreement between the party and the attorney. Such affidavit
shall include the amount of any retainer, the amounts paid and still
owing thereunder, the hourly amount charged by the attorney, the amounts
paid, or to be paid, any experts, and any additional costs,
disbursements or expenses. An unrepresented litigant shall not be
required to file such an affidavit detailing fee arrangements when
making an application for an award of counsel fees and expenses;
provided he or she has submitted an affidavit that he or she is unable
to afford counsel with supporting proof, including a statement of net
worth, and, if available, W-2 statements and income tax returns for
himself or herself. Any applications for fees and expenses may be
maintained by the attorney for either spouse in his or her own name in
the same proceeding. Payment of any retainer fees to the attorney for
the petitioning party shall not preclude any awards of fees and expenses
to an applicant which would otherwise be allowed under this section.
(b) Upon any application to enforce, annul or modify an order or
judgment for alimony, maintenance, distributive award, distribution of
marital property or for custody, visitation, or maintenance of a child,
made as in section two hundred thirty-six or section two hundred forty
of this article provided, or upon any application by writ of habeas
corpus or by petition and order to show cause concerning custody,
visitation or maintenance of a child, the court may direct a spouse or
parent to pay counsel fees and fees and expenses of experts directly to
the attorney of the other spouse or parent to enable the other party to
carry on or defend the application or proceeding by the other spouse or
parent as, in the court's discretion, justice requires, having regard to
the circumstances of the case and of the respective parties. There shall
be a rebuttable presumption that counsel fees shall be awarded to the
less monied spouse. In exercising the court's discretion, the court
shall seek to assure that each party shall be adequately represented and
that where fees and expenses are to be awarded, they shall be awarded on
a timely basis, pendente lite, so as to enable adequate representation
from the commencement of the proceeding. Applications for the award of
fees and expenses may be made at any time or times prior to final
judgment. Both parties to the action or proceeding and their respective
attorneys, shall file an affidavit with the court detailing the
financial agreement, between the party and the attorney. Such affidavit
shall include the amount of any retainer, the amounts paid and still
owing thereunder, the hourly amount charged by the attorney, the amounts
paid, or to be paid, any experts, and any additional costs,
disbursements or expenses. Any applications for fees and expenses may be
maintained by the attorney for either spouse in counsel's own name in
the same proceeding. Payment of any retainer fees to the attorney for
the petitioning party shall not preclude any awards of fees and expenses
to an applicant which would otherwise be allowed under this section.
(c) In any action or proceeding for failure to obey any lawful order
compelling payment of support or maintenance, or distributive award the
court shall, upon a finding that such failure was willful, order
respondent to pay counsel fees to the attorney representing the
petitioner.
(d) The term "expenses" as used in subdivisions (a) and (b) of this
section shall include, but shall not be limited to, accountant fees,
appraisal fees, actuarial fees, investigative fees and other fees and
expenses that the court may determine to be necessary to enable a spouse
to carry on or defend an action or proceeding under this section. In
determining the appropriateness and necessity of fees, the court shall
consider:
1. The nature of the marital property involved;
2. The difficulties involved, if any, in identifying and evaluating
the marital property;
3. The services rendered and an estimate of the time involved; and
4. The applicant's financial status.
Expenses in enforcement and modification proceedings. In any
action or proceeding to enforce or modify any provision of a judgment or
order entered in an action for divorce, separation, annulment,
declaration of nullity of a void marriage, declaration of validity or
nullity of a judgement of divorce rendered against a spouse who was the
defendant in any action outside the state of New York and did not appear
therein where such spouse asserts the nullity of such foreign judgment,
or an injunction restraining the prosecution in any other jurisdiction
of an action for a divorce, or in any proceeding pursuant to section two
hundred forty-three, two hundred forty-four, two hundred forty-five, or
two hundred forty-six of this article, the court may in its discretion
require either party to pay counsel fees and fees and expenses of
experts directly to the attorney of the other party to enable the other
party to carry on or defend the action or proceeding as, in the court's
discretion, justice requires having regard to the circumstances of the
case and of the respective parties. There shall be a rebuttable
presumption that counsel fees shall be awarded to the less monied
spouse. In any such action or proceeding, applications for fees and
expenses may be maintained by the attorney for the respective parties in
counsel's own name and in counsel's own behalf. In exercising the
court's discretion, the court shall seek to assure that each party shall
be adequately represented and that where fees and expenses are to be
awarded, they shall be awarded on a timely basis, pendente lite, so as
to enable adequate representation from the commencement of the
proceeding. Applications for the award of fees and expenses may be made
at any time or times prior to final judgment. Both parties to the action
or proceeding and their representative attorneys, shall file an
affidavit with the court detailing the financial agreement between the
party and the attorney. Such affidavit shall include the amount of any
retainer, the amounts paid and still owing thereunder, the hourly amount
charged by the attorney, the amounts paid, or to be paid, any experts,
and any additional costs, disbursements or expenses. Payment of any
retainer fees to the attorney for the petitioning party shall not
preclude any awards of fees and expenses to an applicant which would
otherwise be allowed under this section.
Stay in divorce or separation action on default of payment. In
an action for divorce or separation the court or the judge thereof may
refuse to grant an order to stay proceedings, where the only default is
the failure of a spouse to pay alimony, maintenance or counsel fees due
to his or her inability to make such payments. In no event shall a
spouse who has been imprisoned for contempt of court for failure to pay
alimony, maintenance or counsel fees or by virtue of an order of arrest
as a provisional remedy under the civil practice law and rules be stayed
from proceeding with the prosecution or defense of an action where the
only default is the failure of such spouse to pay alimony, maintenance
or counsel fees.
Custody and child support; orders of protection. 1. (a) In any
action or proceeding brought (1) to annul a marriage or to declare the
nullity of a void marriage, or (2) for a separation, or (3) for a
divorce, or (4) to obtain, by a writ of habeas corpus or by petition and
order to show cause, the custody of or right to visitation with any
child of a marriage, the court shall require verification of the status
of any child of the marriage with respect to such child's custody and
support, including any prior orders, and shall enter orders for custody
and support as, in the court's discretion, justice requires, having
regard to the circumstances of the case and of the respective parties
and to the best interests of the child and subject to the provisions of
subdivision one-c of this section. Where either party to an action
concerning custody of or a right to visitation with a child alleges in a
sworn petition or complaint or sworn answer, cross-petition,
counterclaim or other sworn responsive pleading that the other party has
committed an act of domestic violence against the party making the
allegation or a family or household member of either party, as such
family or household member is defined in article eight of the family
court act, and such allegations are proven by a preponderance of the
evidence, the court must consider the effect of such domestic violence
upon the best interests of the child, together with such other facts and
circumstances as the court deems relevant in making a direction pursuant
to this section and state on the record how such findings, facts and
circumstances factored into the direction. If a parent makes a good
faith allegation based on a reasonable belief supported by facts that
the child is the victim of child abuse, child neglect, or the effects of
domestic violence, and if that parent acts lawfully and in good faith in
response to that reasonable belief to protect the child or seek
treatment for the child, then that parent shall not be deprived of
custody, visitation or contact with the child, or restricted in custody,
visitation or contact, based solely on that belief or the reasonable
actions taken based on that belief. If an allegation that a child is
abused is supported by a preponderance of the evidence, then the court
shall consider such evidence of abuse in determining the visitation
arrangement that is in the best interest of the child, and the court
shall not place a child in the custody of a parent who presents a
substantial risk of harm to that child, and shall state on the record
how such findings were factored into the determination. Where a
proceeding filed pursuant to article ten or ten-A of the family court
act is pending at the same time as a proceeding brought in the supreme
court involving the custody of, or right to visitation with, any child
of a marriage, the court presiding over the proceeding under article ten
or ten-A of the family court act may jointly hear the dispositional
hearing on the petition under article ten or the permanency hearing
under article ten-A of the family court act and, upon referral from the
supreme court, the hearing to resolve the matter of custody or
visitation in the proceeding pending in the supreme court; provided
however, the court must determine custody or visitation in accordance
with the terms of this section.
An order directing the payment of child support shall contain the
social security numbers of the named parties. In all cases there shall
be no prima facie right to the custody of the child in either parent.
Such direction shall make provision for child support out of the
property of either or both parents. The court shall make its award for
child support pursuant to subdivision one-b of this section. Such
direction may provide for reasonable visitation rights to the maternal
and/or paternal grandparents of any child of the parties. Such direction
as it applies to rights of visitation with a child remanded or placed in
the care of a person, official, agency or institution pursuant to
article ten of the family court act, or pursuant to an instrument
approved under section three hundred fifty-eight-a of the social
services law, shall be enforceable pursuant to part eight of article ten
of the family court act and sections three hundred fifty-eight-a and
three hundred eighty-four-a of the social services law and other
applicable provisions of law against any person having care and custody,
or temporary care and custody, of the child. Notwithstanding any other
provision of law, any written application or motion to the court for the
establishment, modification or enforcement of a child support obligation
for persons not in receipt of public assistance and care must contain
either a request for child support enforcement services which would
authorize the collection of the support obligation by the immediate
issuance of an income execution for support enforcement as provided for
by this chapter, completed in the manner specified in section one
hundred eleven-g of the social services law; or a statement that the
applicant has applied for or is in receipt of such services; or a
statement that the applicant knows of the availability of such services,
has declined them at this time and where support enforcement services
pursuant to section one hundred eleven-g of the social services law have
been declined that the applicant understands that an income deduction
order may be issued pursuant to subdivision (c) of section fifty-two
hundred forty-two of the civil practice law and rules without other
child support enforcement services and that payment of an administrative
fee may be required. The court shall provide a copy of any such request
for child support enforcement services to the support collection unit of
the appropriate social services district any time it directs payments to
be made to such support collection unit. Additionally, the copy of any
such request shall be accompanied by the name, address and social
security number of the parties; the date and place of the parties'
marriage; the name and date of birth of the child or children; and the
name and address of the employers and income payors of the party from
whom child support is sought or from the party ordered to pay child
support to the other party. Such direction may require the payment of a
sum or sums of money either directly to the custodial parent or to third
persons for goods or services furnished for such child, or for both
payments to the custodial parent and to such third persons; provided,
however, that unless the party seeking or receiving child support has
applied for or is receiving such services, the court shall not direct
such payments to be made to the support collection unit, as established
in section one hundred eleven-h of the social services law. Every order
directing the payment of support shall require that if either parent
currently, or at any time in the future, has health insurance benefits
available that may be extended or obtained to cover the child, such
parent is required to exercise the option of additional coverage in
favor of such child and execute and deliver to such person any forms,
notices, documents or instruments necessary to assure timely payment of
any health insurance claims for such child.
(a-1)(1) Permanent and initial temporary orders of custody or
visitation. Prior to the issuance of any permanent or initial temporary
order of custody or visitation, the court shall conduct a review of the
decisions and reports listed in subparagraph three of this paragraph.
(2) Successive temporary orders of custody or visitation. Prior to the
issuance of any successive temporary order of custody or visitation, the
court shall conduct a review of the decisions and reports listed in
subparagraph three of this paragraph, unless such a review has been
conducted within ninety days prior to the issuance of such order.
(3) Decisions and reports for review. The court shall conduct a review
of the following:
(i) related decisions in court proceedings initiated pursuant to
article ten of the family court act, and all warrants issued under the
family court act; and
(ii) reports of the statewide computerized registry of orders of
protection established and maintained pursuant to section two hundred
twenty-one-a of the executive law, and reports of the sex offender
registry established and maintained pursuant to section one hundred
sixty-eight-b of the correction law.
(4) Notifying counsel and issuing orders. Upon consideration of
decisions pursuant to article ten of the family court act, and registry
reports and notifying counsel involved in the proceeding, or in the
event of a self-represented party, notifying such party of the results
thereof, including any court appointed attorney for children, the court
may issue a temporary, successive temporary or final order of custody or
visitation.
(5) Temporary emergency order. Notwithstanding any other provision of
the law, upon emergency situations, including computer malfunctions, to
serve the best interest of the child, the court may issue a temporary
emergency order for custody or visitation in the event that it is not
possible to timely review decisions and reports on registries as
required pursuant to subparagraph three of this paragraph.
(6) After issuing a temporary emergency order. After issuing a
temporary emergency order of custody or visitation, the court shall
conduct reviews of the decisions and reports on registries as required
pursuant to subparagraph three of this paragraph within twenty-four
hours of the issuance of such temporary emergency order. Should such
twenty-four hour period fall on a day when court is not in session, then
the required reviews shall take place the next day the court is in
session. Upon reviewing decisions and reports the court shall notify
associated counsel, self-represented parties and attorneys for children
pursuant to subparagraph four of this paragraph and may issue temporary
or permanent custody or visitation orders.
(7) Feasibility study. The commissioner of the office of children and
family services, in conjunction with the office of court administration,
is hereby authorized and directed to examine, study, evaluate and make
recommendations concerning the feasibility of the utilization of
computers in courts which are connected to the statewide central
register of child abuse and maltreatment established and maintained
pursuant to section four hundred twenty-two of the social services law,
as a means of providing courts with information regarding parties
requesting orders of custody or visitation. Such commissioner shall make
a preliminary report to the governor and the legislature of findings,
conclusions and recommendations not later than January first, two
thousand nine, and a final report of findings, conclusions and
recommendations not later than June first, two thousand nine, and shall
submit with the reports such legislative proposals as are deemed
necessary to implement the commissioner's recommendations.
(a-2) Military service by parent; effect on child custody orders. (1)
During the period of time that a parent is activated, deployed or
temporarily assigned to military service, such that the parent's ability
to continue as a joint caretaker or the primary caretaker of a minor
child is materially affected by such military service, any orders issued
pursuant to this section, based on the fact that the parent is
activated, deployed or temporarily assigned to military service, which
would materially affect or change a previous judgment or order regarding
custody of that parent's child or children as such judgment or order
existed on the date the parent was activated, deployed, or temporarily
assigned to military service, shall be subject to review pursuant to
subparagraph three of this paragraph. Any relevant provisions of the
Service Member's Civil Relief Act shall apply to all proceedings
governed by this section.
(2) During such period, the court may enter an order to modify custody
if there is clear and convincing evidence that the modification is in
the best interests of the child. An attorney for the child shall be
appointed in all cases where a modification is sought during such
military service. Such order shall be subject to review pursuant to
subparagraph three of this paragraph. When entering an order pursuant to
this section, the court shall consider and provide for, if feasible and
if in the best interests of the child, contact between the military
service member and his or her child, including, but not limited to,
electronic communication by e-mail, webcam, telephone, or other
available means. During the period of the parent's leave from military
service, the court shall consider the best interests of the child when
establishing a parenting schedule, including visiting and other contact.
For such purposes, a "leave from military service" shall be a period of
not more than three months.
(3) Unless the parties have otherwise stipulated or agreed, if an
order is issued pursuant to this paragraph, the return of the parent
from active military service, deployment or temporary assignment shall
be considered a substantial change in circumstances. Upon the request of
either parent, the court shall determine on the basis of the child's
best interests whether the custody judgment or order previously in
effect should be modified.
(4) This paragraph shall not apply to assignments to permanent duty
stations or permanent changes of station.
(a-3) Court ordered forensic evaluations involving child custody and
visitation. (1) The court may appoint a forensic evaluator on behalf of
the court to evaluate and investigate the parties and a child or
children in a proceeding involving child custody and visitation provided
that the child custody forensic evaluator is a psychologist, social
worker or psychiatrist who is licensed in the state of New York and has
received within the last two years, a certification of completion for
completing the training program pursuant to paragraph (o) of subdivision
three of section five hundred seventy-five of the executive law.
(2) Notwithstanding any provision of law to the contrary, no
individual shall be appointed by a court to conduct a forensic
evaluation in a proceeding involving child custody and visitation
pursuant to this paragraph unless such individual has received within
the last two years, a certification of completion for completing the
training program pursuant to paragraph (o) of subdivision three of
section five hundred seventy-five of the executive law.
(3) A psychologist, social worker or psychiatrist authorized to
conduct court ordered child custody forensic evaluations pursuant to
this section shall notify the court in which such individual requests to
be considered for such court ordered evaluations. Any psychologist,
social worker or psychiatrist who no longer meets the requirements of
this section in regards to completing within the last two years the
training program pursuant to paragraph (o) of subdivision three of
section five hundred seventy-five of the executive law shall be
obligated to inform such courts within seventy-two hours of
noncompliance so as to be removed from consideration for court ordered
evaluations.
(4) Upon appointment, the court shall require such child custody
forensic evaluator to show proof of certification for completing within
the last two years the training program pursuant to paragraph (o) of
subdivision three of section five hundred seventy-five of the executive
law.
(5) A court shall appoint a forensic evaluator who has completed the
training program pursuant to paragraph (o) of subdivision three of
section five hundred seventy-five of the executive law when the child is
living out-of-state and is farther than one hundred miles from the New
York state border; provided, however, that such forensic custody
evaluation may be conducted remotely utilizing videoconferencing
technology. The evaluator must take all steps reasonably available to
protect the confidentiality of the child's disclosures for any
evaluation conducted remotely utilizing videoconferencing technology, as
needed.
(b) As used in this section, the following terms shall have the
following meanings:
(1) "Health insurance benefits" means any medical, dental, optical and
prescription drugs and health care services or other health care
benefits that may be provided for a dependent through an employer or
organization, including such employers or organizations which are self
insured, or through other available health insurance or health care
coverage plans.
(2) "Available health insurance benefits" means any health insurance
benefits that are reasonable in cost and that are reasonably accessible
to the person on whose behalf the petition is brought. Health insurance
benefits that are not reasonable in cost or whose services are not
reasonably accessible to such person, shall be considered unavailable.
(3) When the person on whose behalf the petition is brought is a child
in accordance with paragraph (c) of this subdivision, health insurance
benefits shall be considered "reasonable in cost" if the cost of health
insurance benefits does not exceed five percent of the combined parental
gross income. The cost of health insurance benefits shall refer to the
cost of the premium and deductible attributable to adding the child or
children to existing coverage or the difference between such costs for
self-only and family coverage. Provided, however, the presumption that
the health insurance benefits are reasonable in cost may be rebutted
upon a finding that the cost is unjust or inappropriate which finding
shall be based on the circumstances of the case, the cost and
comprehensiveness of the health insurance benefits for which the child
or children may otherwise be eligible, and the best interests of the
child or children. In no instance shall health insurance benefits be
considered "reasonable in cost" if a parent's share of the cost of
extending such coverage would reduce the income of that parent below the
self-support reserve. Health insurance benefits are "reasonably
accessible" if the child lives within the geographic area covered by the
plan or lives within thirty minutes or thirty miles of travel time from
the child's residence to the services covered by the health insurance
benefits or through benefits provided under a reciprocal agreement;
provided, however, this presumption may be rebutted for good cause shown
including, but not limited to, the special health needs of the child.
The court shall set forth such finding and the reasons therefor in the
order of support.
(c) When the person on whose behalf the petition is brought is a
child, the court shall consider the availability of health insurance
benefits to all parties and shall take the following action to ensure
that health insurance benefits are provided for the benefit of the
child:
(1) Where the child is presently covered by health insurance benefits,
the court shall direct in the order of support that such coverage be
maintained, unless either parent requests the court to make a direction
for health insurance benefits coverage pursuant to paragraph two of this
subdivision.
(2) Where the child is not presently covered by health insurance
benefits, the court shall make a determination as follows:
(i) If only one parent has available health insurance benefits, the
court shall direct in the order of support that such parent provide
health insurance benefits.
(ii) If both parents have available health insurance benefits the
court shall direct in the order of support that either parent or both
parents provide such health insurance. The court shall make such
determination based on the circumstances of the case, including, but not
limited to, the cost and comprehensiveness of the respective health
insurance benefits and the best interests of the child.
(iii) If neither parent has available health insurance benefits, the
court shall direct in the order of support that the custodial parent
apply for the state's child health insurance plan pursuant to title
one-A of article twenty-five of the public health law and the medical
assistance program established pursuant to title eleven of article five
of the social services law. A direction issued under this subdivision
shall not limit or alter either parent's obligation to obtain health
insurance benefits at such time as they become available, as required
pursuant to paragraph (a) of this subdivision. Nothing in this
subdivision shall alter or limit the authority of the medical assistance
program to determine when it is considered cost effective to require a
custodial parent to enroll a child in an available group health
insurance plan pursuant to paragraphs (b) and (c) of subdivision one of
section three hundred sixty-seven-a of the social services law.
(d) The cost of providing health insurance benefits or benefits under
the state's child health insurance plan or the medical assistance
program, pursuant to paragraph (c) of this subdivision, shall be deemed
cash medical support, and the court shall determine the obligation of
either or both parents to contribute to the cost thereof pursuant to
subparagraph five of paragraph (c) of subdivision one-b of this section.
(e) The court shall provide in the order of support that the legally
responsible relative immediately notify the other party, or the other
party and the support collection unit when the order is issued on behalf
of a child in receipt of public assistance and care or in receipt of
services pursuant to section one hundred eleven-g of the social services
law, of any change in health insurance benefits, including any
termination of benefits, change in the health insurance benefit carrier,
premium, or extent and availability of existing or new benefits.
(f) Where the court determines that health insurance benefits are
available, the court shall provide in the order of support that the
legally responsible relative immediately enroll the eligible dependents
named in the order who are otherwise eligible for such benefits without
regard to any seasonal enrollment restrictions. Such order shall further
direct the legally responsible relative to maintain such benefits as
long as they remain available to such relative. Such order shall further
direct the legally responsible relative to assign all insurance
reimbursement payments for health care expenses incurred for his or her
eligible dependents to the provider of such services or the party
actually having incurred and satisfied such expenses, as appropriate.
(g) When the court issues an order of child support or combined child
and spousal support on behalf of persons in receipt of public assistance
and care or in receipt of services pursuant to section one hundred
eleven-g of the social services law, such order shall further direct
that the provision of health care benefits shall be immediately enforced
pursuant to section fifty-two hundred forty-one of the civil practice
law and rules.
(h) When the court issues an order of child support or combined child
and spousal support on behalf of persons other than those in receipt of
public assistance and care or in receipt of services pursuant to section
one hundred eleven-g of the social services law, the court shall also
issue a separate order which shall include the necessary direction to
ensure the order's characterization as a qualified medical child support
order as defined by section six hundred nine of the employee retirement
income security act of 1974 (29 USC 1169). Such order shall: (i) clearly
state that it creates or recognizes the existence of the right of the
named dependent to be enrolled and to receive benefits for which the
legally responsible relative is eligible under the available group
health plans, and shall clearly specify the name, social security number
and mailing address of the legally responsible relative, and of each
dependent to be covered by the order; (ii) provide a clear description
of the type of coverage to be provided by the group health plan to each
such dependent or the manner in which the type of coverage is to be
determined; and (iii) specify the period of time to which the order
applies. The court shall not require the group health plan to provide
any type or form of benefit or option not otherwise provided under the
group health plan except to the extent necessary to meet the
requirements of a law relating to medical child support described in
section one thousand three hundred and ninety-six g of title forty-two
of the United States code.
(i) Upon a finding that a legally responsible relative wilfully failed
to obtain health insurance benefits in violation of a court order, such
relative will be presumptively liable for all health care expenses
incurred on behalf of such dependents from the first date such
dependents were eligible to be enrolled to receive health insurance
benefits after the issuance of the order of support directing the
acquisition of such coverage.
(j) The order shall be effective as of the date of the application
therefor, and any retroactive amount of child support due shall be
support arrears/past due support and shall, except as provided for
herein, be paid in one lump sum or periodic sums, as the court shall
direct, taking into account any amount of temporary support which has
been paid. In addition, such retroactive child support shall be
enforceable in any manner provided by law including, but not limited to,
an execution for support enforcement pursuant to subdivision (b) of
section fifty-two hundred forty-one of the civil practice law and rules.
When a child receiving support is a public assistance recipient, or the
order of support is being enforced or is to be enforced pursuant to
section one hundred eleven-g of the social services law, the court shall
establish the amount of retroactive child support and notify the parties
that such amount shall be enforced by the support collection unit
pursuant to an execution for support enforcement as provided for in
subdivision (b) of section fifty-two hundred forty-one of the civil
practice law and rules, or in such periodic payments as would have been
authorized had such an execution been issued. In such case, the courts
shall not direct the schedule of repayment of retroactive support. Where
such direction is for child support and paternity has been established
by a voluntary acknowledgement of paternity as defined in section
forty-one hundred thirty-five-b of the public health law, the court
shall inquire of the parties whether the acknowledgement has been duly
filed, and unless satisfied that it has been so filed shall require the
clerk of the court to file such acknowledgement with the appropriate
registrar within five business days. Such direction may be made in the
final judgment in such action or proceeding, or by one or more orders
from time to time before or subsequent to final judgment, or by both
such order or orders and the final judgment. Such direction may be made
notwithstanding that the court for any reason whatsoever, other than
lack of jurisdiction, refuses to grant the relief requested in the
action or proceeding. Any order or judgment made as in this section
provided may combine in one lump sum any amount payable to the custodial
parent under this section with any amount payable to such parent under
section two hundred thirty-six of this article. Upon the application of
either parent, or of any other person or party having the care, custody
and control of such child pursuant to such judgment or order, after such
notice to the other party, parties or persons having such care, custody
and control and given in such manner as the court shall direct, the
court may annul or modify any such direction, whether made by order or
final judgment, or in case no such direction shall have been made in the
final judgment may, with respect to any judgment of annulment or
declaring the nullity of a void marriage rendered on or after September
first, nineteen hundred forty, or any judgment of separation or divorce
whenever rendered, amend the judgment by inserting such direction.
Subject to the provisions of section two hundred forty-four of this
article, no such modification or annulment shall reduce or annul arrears
accrued prior to the making of such application unless the defaulting
party shows good cause for failure to make application for relief from
the judgment or order directing such payment prior to the accrual of
such arrears. Such modification may increase such child support nunc pro
tunc as of the date of application based on newly discovered evidence.
Any retroactive amount of child support due shall be support
arrears/past due support and shall be paid in one lump sum or periodic
sums, as the court shall direct, taking into account any amount of
temporary child support which has been paid. In addition, such
retroactive child support shall be enforceable in any manner provided by
law including, but not limited to, an execution for support enforcement
pursuant to subdivision (b) of section fifty-two hundred forty-one of
the civil practice law and rules.
1-a. In any proceeding brought pursuant to this section to determine
the custody or visitation of minors, a report made to the statewide
central register of child abuse and maltreatment, pursuant to title six
of article six of the social services law, or a portion thereof, which
is otherwise admissible as a business record pursuant to rule forty-five
hundred eighteen of the civil practice law and rules shall not be
admissible in evidence, notwithstanding such rule, unless an
investigation of such report conducted pursuant to title six of article
six of the social services law has determined that there is some
credible evidence of the alleged abuse or maltreatment and that the
subject of the report has been notified that the report is indicated. In
addition, if such report has been reviewed by the state commissioner of
social services or his designee and has been determined to be unfounded,
it shall not be admissible in evidence. If such report has been so
reviewed and has been amended to delete any finding, each such deleted
finding shall not be admissible. If the state commissioner of social
services or his designee has amended the report to add any new finding,
each such new finding, together with any portion of the original report
not deleted by the commissioner or his designee, shall be admissible if
it meets the other requirements of this subdivision and is otherwise
admissible as a business record. If such a report, or portion thereof,
is admissible in evidence but is uncorroborated, it shall not be
sufficient to make a fact finding of abuse or maltreatment in such
proceeding. Any other evidence tending to support the reliability of
such report shall be sufficient corroboration.
1-b. (a) The court shall make its award for child support pursuant to
the provisions of this subdivision. The court may vary from the amount
of the basic child support obligation determined pursuant to paragraph
(c) of this subdivision only in accordance with paragraph (f) of this
subdivision.
(b) For purposes of this subdivision, the following definitions shall
be used:
(1) "Basic child support obligation" shall mean the sum derived by
adding the amounts determined by the application of subparagraphs two
and three of paragraph (c) of this subdivision except as increased
pursuant to subparagraphs four, five, six and seven of such paragraph.
(2) "Child support" shall mean a sum to be paid pursuant to court
order or decree by either or both parents or pursuant to a valid
agreement between the parties for care, maintenance and education of any
unemancipated child under the age of twenty-one years.
(3) "Child support percentage" shall mean:
(i) seventeen percent of the combined parental income for one child;
(ii) twenty-five percent of the combined parental income for two
children;
(iii) twenty-nine percent of the combined parental income for three
children;
(iv) thirty-one percent of the combined parental income for four
children; and
(v) no less than thirty-five percent of the combined parental income
for five or more children.
(4) "Combined parental income" shall mean the sum of the income of
both parents.
(5) "Income" shall mean, but shall not be limited to, the sum of the
amounts determined by the application of clauses (i), (ii), (iii), (iv),
(v) and (vi) of this subparagraph reduced by the amount determined by
the application of clause (vii) of this subparagraph:
(i) gross (total) income as should have been or should be reported in
the most recent federal income tax return. If an individual files
his/her federal income tax return as a married person filing jointly,
such person shall be required to prepare a form, sworn to under penalty
of law, disclosing his/her gross income individually;
(ii) to the extent not already included in gross income in clause (i)
of this subparagraph, investment income reduced by sums expended in
connection with such investment;
(iii) to the extent not already included in gross income in clauses
(i) and (ii) of this subparagraph, the amount of income or compensation
voluntarily deferred and income received, if any, from the following
sources:
(A) workers' compensation,
(B) disability benefits,
(C) unemployment insurance benefits,
(D) social security benefits,
(E) veterans benefits,
(F) pensions and retirement benefits,
(G) fellowships and stipends,
(H) annuity payments, and
(I) alimony or maintenance actually paid or to be paid to a spouse who
is a party to the instant action pursuant to an existing court order or
contained in the order to be entered by the court, or pursuant to a
validly executed written agreement, in which event the order or
agreement shall provide for a specific adjustment, in accordance with
this subdivision, in the amount of child support payable upon the
termination of alimony or maintenance to such spouse; provided, however,
that the specific adjustment in the amount of child support is without
prejudice to either party's right to seek a modification in accordance
with subparagraph two of paragraph b of subdivision nine of part B of
section two hundred thirty-six of this article. In an action or
proceeding to modify an order of child support, including an order
incorporating without merging an agreement, issued prior to the
effective date of this subclause, the provisions of this subclause shall
not, by themselves, constitute a substantial change of circumstances
pursuant to paragraph b of subdivision nine of part B of section two
hundred thirty-six of this article.
(iv) at the discretion of the court, the court may attribute or impute
income from such other resources as may be available to the parent,
including, but not limited to:
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that
are provided as part of compensation for employment to the extent that
such perquisites constitute expenditures for personal use, or which
expenditures directly or indirectly confer personal economic benefits,
(C) fringe benefits provided as part of compensation for employment,
and
(D) money, goods, or services provided by relatives and friends;
In determining the amount of income that may be attributed or imputed,
the court shall consider the specific circumstances of the parent, to
the extent known, including such factors as the parent's assets,
residence, employment and earning history, job skills, educational
attainment, literacy, age, health, criminal record and other employment
barriers, record of seeking work, the local job market, the availability
of employers willing to hire the parent, prevailing earnings level in
the local community, and other relevant background factors such as the
age, number, needs, and care of the children covered by the child
support order. Attribution or imputation of income shall be accompanied
by specific written findings identifying the basis or bases for such
determination utilizing factors required or permitted to be considered
pursuant to this clause;
(v) an amount imputed as income based upon the parent's former
resources or income, if the court determines that a parent has reduced
resources or income in order to reduce or avoid the parent's obligation
for child support; provided that incarceration shall not be considered
voluntary unemployment;
(vi) to the extent not already included in gross income in clauses (i)
and (ii) of this subparagraph, the following self-employment deductions
attributable to self-employment carried on by the taxpayer:
(A) any depreciation deduction greater than depreciation calculated on
a straight-line basis for the purpose of determining business income or
investment credits, and
(B) entertainment and travel allowances deducted from business income
to the extent said allowances reduce personal expenditures;
(vii) the following shall be deducted from income prior to applying
the provisions of paragraph (c) of this subdivision:
(A) unreimbursed employee business expenses except to the extent said
expenses reduce personal expenditures,
(B) alimony or maintenance actually paid to a spouse not a party to
the instant action pursuant to court order or validly executed written
agreement,
(C) alimony or maintenance actually paid or to be paid to a spouse who
is a party to the instant action pursuant to an existing court order or
contained in the order to be entered by the court, or pursuant to a
validly executed written agreement, in which event the order or
agreement shall provide for a specific adjustment, in accordance with
this subdivision, in the amount of child support payable upon the
termination of alimony or maintenance to such spouse; provided, however,
that the specific adjustment in the amount of child support is without
prejudice to either party's right to seek a modification in accordance
with subparagraph two of paragraph b of subdivision nine of part B of
section two hundred thirty-six of this article. In an action or
proceeding to modify an order of child support, including an order
incorporating without merging an agreement, issued prior to the
effective date of this subclause, the provisions of this subclause shall
not, by themselves, constitute a substantial change of circumstances
pursuant to paragraph b of subdivision nine of part B of section two
hundred thirty-six of this article.
(D) child support actually paid pursuant to court order or written
agreement on behalf of any child for whom the parent has a legal duty of
support and who is not subject to the instant action,
(E) public assistance,
(F) supplemental security income,
(G) New York city or Yonkers income or earnings taxes actually paid,
and
(H) federal insurance contributions act (FICA) taxes actually paid.
(6) "Self-support reserve" shall mean one hundred thirty-five percent
of the poverty income guidelines amount for a single person as reported
by the federal department of health and human services. For the calendar
year nineteen hundred eighty-nine, the self-support reserve shall be
eight thousand sixty-five dollars. On March first of each year, the
self-support reserve shall be revised to reflect the annual updating of
the poverty income guidelines as reported by the federal department of
health and human services for a single person household.
(c) The amount of the basic child support obligation shall be
determined in accordance with the provision of this paragraph:
(1) The court shall determine the combined parental income.
(2) The court shall multiply the combined parental income up to the
amount set forth in paragraph (b) of subdivision two of section one
hundred eleven-i of the social services law by the appropriate child
support percentage and such amount shall be prorated in the same
proportion as each parent's income is to the combined parental income.
(3) Where the combined parental income exceeds the dollar amount set
forth in subparagraph two of this paragraph, the court shall determine
the amount of child support for the amount of the combined parental
income in excess of such dollar amount through consideration of the
factors set forth in paragraph (f) of this subdivision and/or the child
support percentage.
(4) Where the custodial parent is working, or receiving elementary or
secondary education, or higher education or vocational training which
the court determines will lead to employment, and incurs child care
expenses as a result thereof, the court shall determine reasonable child
care expenses and such child care expenses, where incurred, shall be
prorated in the same proportion as each parent's income is to the
combined parental income. Each parent's pro rata share of the child care
expenses shall be separately stated and added to the sum of
subparagraphs two and three of this paragraph.
(5) The court shall determine the parties' obligation to provide
health insurance benefits pursuant to this section and to pay cash
medical support as provided under this subparagraph.
(i) "Cash medical support" means an amount ordered to be paid toward
the cost of health insurance provided by a public entity or by a parent
through an employer or organization, including such employers or
organizations which are self insured, or through other available health
insurance or health care coverage plans, and/or for other health care
expenses not covered by insurance.
(ii) Where health insurance benefits pursuant to subparagraph one and
clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision
one of this section are determined by the court to be available, the
cost of providing health insurance benefits shall be prorated between
the parties in the same proportion as each parent's income is to the
combined parental income. If the custodial parent is ordered to provide
such benefits, the non-custodial parent's pro rata share of such costs
shall be added to the basic support obligation. If the non-custodial
parent is ordered to provide such benefits, the custodial parent's pro
rata share of such costs shall be deducted from the basic support
obligation.
(iii) Where health insurance benefits pursuant to subparagraph one and
clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision
one of this section are determined by the court to be unavailable, if
the child or children are determined eligible for coverage under the
medical assistance program established pursuant to title eleven of
article five of the social services law, the court shall order the
non-custodial parent to pay cash medical support as follows:
(A) In the case of a child or children authorized for managed care
coverage under the medical assistance program, the lesser of the amount
that would be required as a family contribution under the state's child
health insurance plan pursuant to title one-A of article twenty-five of
the public health law for the child or children if they were in a
two-parent household with income equal to the combined income of the
non-custodial and custodial parents or the premium paid by the medical
assistance program on behalf of the child or children to the managed
care plan. The court shall separately state the non-custodial parent's
monthly obligation. The non-custodial parent's cash medical support
obligation under this clause shall not exceed five percent of his or her
gross income, or the difference between the non-custodial parent's
income and the self-support reserve, whichever is less.
(B) In the case of a child or children authorized for fee-for-service
coverage under the medical assistance program other than a child or
children described in item (A) of this clause, the court shall determine
the non-custodial parent's maximum annual cash medical support
obligation, which shall be equal to the lesser of the monthly amount
that would be required as a family contribution under the state's child
health insurance plan pursuant to title one-A of article twenty-five of
the public health law for the child or children if they were in a
two-parent household with income equal to the combined income of the
non-custodial and custodial parents times twelve months or the number of
months that the child or children are authorized for fee-for-service
coverage during any year. The court shall separately state in the order
the non-custodial parent's maximum annual cash medical support
obligation and, upon proof to the court that the non-custodial parent,
after notice of the amount due, has failed to pay the public entity for
incurred health care expenses, the court shall order the non-custodial
parent to pay such incurred health care expenses up to the maximum
annual cash medical support obligation. Such amounts shall be support
arrears/past due support and shall be subject to any remedies as
provided by law for the enforcement of support arrears/past due support.
The total annual amount that the non-custodial parent is ordered to pay
under this clause shall not exceed five percent of his or her gross
income or the difference between the non-custodial parent's income and
the self-support reserve, whichever is less.
(C) The court shall order cash medical support to be paid by the
non-custodial parent for health care expenses of the child or children
paid by the medical assistance program prior to the issuance of the
court's order. The amount of such support shall be calculated as
provided under item (A) or (B) of this clause, provided that the amount
that the non-custodial parent is ordered to pay under this item shall
not exceed five percent of his or her gross income or the difference
between the non-custodial parent's income and the self-support reserve,
whichever is less, for the year when the expense was incurred. Such
amounts shall be support arrears/past due support and shall be subject
to any remedies as provided by law for the enforcement of support
arrears/past due support.
(iv) Where health insurance benefits pursuant to subparagraph one and
clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision
one of this section are determined by the court to be unavailable, and
the child or children are determined eligible for coverage under the
state's child health insurance plan pursuant to title one-A of article
twenty-five of the public health law, the court shall prorate each
parent's share of the cost of the family contribution required under
such child health insurance plan in the same proportion as each parent's
income is to the combined parental income, and state the amount of the
non-custodial parent's share in the order. The total amount of cash
medical support that the non-custodial parent is ordered to pay under
this clause shall not exceed five percent of his or her gross income, or
the difference between the non-custodial parent's income and the
self-support reserve, whichever is less.
(v) In addition to the amounts ordered under clause (ii), (iii), or
(iv), the court shall pro rate each parent's share of reasonable health
care expenses not reimbursed or paid by insurance, the medical
assistance program established pursuant to title eleven of article five
of the social services law, or the state's child health insurance plan
pursuant to title one-A of article twenty-five of the public health law,
in the same proportion as each parent's income is to the combined
parental income, and state the non-custodial parent's share as a
percentage in the order. The non-custodial parent's pro rata share of
such health care expenses determined by the court to be due and owing
shall be support arrears/past due support and shall be subject to any
remedies provided by law for the enforcement of support arrears/past due
support. In addition, the court may direct that the non-custodial
parent's pro rata share of such health care expenses be paid in one sum
or in periodic sums, including direct payment to the health care
provider.
(vi) Upon proof by either party that cash medical support pursuant to
clause (ii), (iii), (iv), or (v) of this subparagraph would be unjust or
inappropriate pursuant to paragraph (f) of this subdivision, the court
shall:
(A) order the parties to pay cash medical support as the court finds
just and appropriate, considering the best interests of the child; and
(B) set forth in the order the factors it considered, the amount
calculated under this subparagraph, the reason or reasons the court did
not order such amount, and the basis for the amount awarded.
(6) Where the court determines that the custodial parent is seeking
work and incurs child care expenses as a result thereof, the court may
determine reasonable child care expenses and may apportion the same
between the custodial and non-custodial parent. The non-custodial
parent's share of such expenses shall be separately stated and paid in a
manner determined by the court.
(7) Where the court determines, having regard for the circumstances of
the case and of the respective parties and in the best interests of the
child, and as justice requires, that the present or future provision of
post-secondary, private, special, or enriched education for the child is
appropriate, the court may award educational expenses. The non-custodial
parent shall pay educational expenses, as awarded, in a manner
determined by the court, including direct payment to the educational
provider.
(d) Notwithstanding the provisions of paragraph (c) of this
subdivision, where the annual amount of the basic child support
obligation would reduce the non-custodial parent's income below the
poverty income guidelines amount for a single person as reported by the
federal department of health and human services, the basic child support
obligation shall be twenty-five dollars per month, provided, however,
that if the court finds that such basic child support obligation is
unjust or inappropriate, which finding shall be based upon
considerations of the factors set forth in paragraph (f) of this
subdivision, the court shall order the non-custodial parent to pay such
amount of the child support as the court finds just and appropriate.
Notwithstanding the provisions of paragraph (c) of this subdivision,
where the annual amount of the basic child support obligation would
reduce the non-custodial parent's income below the self-support reserve
but not below the poverty income guidelines amount for a single person
as reported by the federal department of health and human services, the
basic child support obligation shall be fifty dollars per month or the
difference between the non-custodial parent's income and the
self-support reserve, whichever is greater, in addition to any amounts
that the court may, in its discretion, order in accordance with
subparagraphs four, five, six and/or seven of paragraph (c) of this
subdivision.
(e) Where a parent is or may be entitled to receive non-recurring
payments from extraordinary sources not otherwise considered as income
pursuant to this section, including but not limited to:
(1) Life insurance policies;
(2) Discharges of indebtedness;
(3) Recovery of bad debts and delinquency amounts;
(4) Gifts and inheritances; and
(5) Lottery winnings,
the court, in accordance with paragraphs (c), (d) and (f) of this
subdivision may allocate a proportion of the same to child support, and
such amount shall be paid in a manner determined by the court.
(f) The court shall calculate the basic child support obligation, and
the non-custodial parent's pro rata share of the basic child support
obligation. Unless the court finds that the non-custodial parents's
pro-rata share of the basic child support obligation is unjust or
inappropriate, which finding shall be based upon consideration of the
following factors:
(1) The financial resources of the custodial and non-custodial parent,
and those of the child;
(2) The physical and emotional health of the child and his/her special
needs and aptitudes;
(3) The standard of living the child would have enjoyed had the
marriage or household not been dissolved;
(4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward
the care and well-being of the child;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is
substantially less than the other parent's gross income;
(8) The needs of the children of the non-custodial parent for whom the
non-custodial parent is providing support who are not subject to the
instant action and whose support has not been deducted from income
pursuant to subclause (D) of clause (vii) of subparagraph five of
paragraph (b) of this subdivision, and the financial resources of any
person obligated to support such children, provided, however, that this
factor may apply only if the resources available to support such
children are less than the resources available to support the children
who are subject to the instant action;
(9) Provided that the child is not on public assistance (i)
extraordinary expenses incurred by the non-custodial parent in
exercising visitation, or (ii) expenses incurred by the non-custodial
parent in extended visitation provided that the custodial parent's
expenses are substantially reduced as a result thereof; and
(10) Any other factors the court determines are relevant in each case,
the court shall order the non-custodial parent to pay his or her pro
rata share of the basic child support obligation, and may order the
non-custodial parent to pay an amount pursuant to paragraph (e) of this
subdivision.
(g) Where the court finds that the non-custodial parent's pro rata
share of the basic child support obligation is unjust or inappropriate,
the court shall order the non-custodial parent to pay such amount of
child support as the court finds just and appropriate, and the court
shall set forth, in a written order, the factors it considered; the
amount of each party's pro rata share of the basic child support
obligation; and the reasons that the court did not order the basic child
support obligation. Such written order may not be waived by either party
or counsel; provided, however, and notwithstanding any other provision
of law, the court shall not find that the non-custodial parent's pro
rata share of such obligation is unjust or inappropriate on the basis
that such share exceeds the portion of a public assistance grant which
is attributable to a child or children. Where the non-custodial parent's
income is less than or equal to the poverty income guidelines amount for
a single person as reported by the federal department of health and
human services, unpaid child support arrears in excess of five hundred
dollars shall not accrue.
(h) A validly executed agreement or stipulation voluntarily entered
into between the parties after the effective date of this subdivision
presented to the court for incorporation in an order or judgment shall
include a provision stating that the parties have been advised of the
provisions of this subdivision, and that the basic child support
obligation provided for therein would presumptively result in the
correct amount of child support to be awarded. In the event that such
agreement or stipulation deviates from the basic child support
obligation, the agreement or stipulation must specify the amount that
such basic child support obligation would have been and the reason or
reasons that such agreement or stipulation does not provide for payment
of that amount. Such provision may not be waived by either party or
counsel. Nothing contained in this subdivision shall be construed to
alter the rights of the parties to voluntarily enter into validly
executed agreements or stipulations which deviate from the basic child
support obligation provided such agreements or stipulations comply with
the provisions of this paragraph. The court shall, however, retain
discretion with respect to child support pursuant to this section. Any
court order or judgment incorporating a validly executed agreement or
stipulation which deviates from the basic child support obligation shall
set forth the court's reasons for such deviation.
(i) Where either or both parties are unrepresented, the court shall
not enter an order or judgment other than a temporary order pursuant to
section two hundred thirty-seven of this article, that includes a
provision for child support unless the unrepresented party or parties
have received a copy of the child support standards chart promulgated by
the commissioner of the office of temporary and disability assistance
pursuant to subdivision two of section one hundred eleven-i of the
social services law. Where either party is in receipt of child support
enforcement services through the local social services district, the
local social services district child support enforcement unit shall
advise such party of the amount derived from application of the child
support percentage and that such amount serves as a starting point for
the determination of the child support award, and shall provide such
party with a copy of the child support standards chart.
(j) In addition to financial disclosure required in section two
hundred thirty-six of this article, the court may require that the
income and/or expenses of either party be verified with documentation
including, but not limited to, past and present income tax returns,
employer statements, pay stubs, corporate, business, or partnership
books and records, corporate and business tax returns, and receipts for
expenses or such other means of verification as the court determines
appropriate. Nothing herein shall affect any party's right to pursue
discovery pursuant to this chapter, the civil practice law and rules, or
the family court act.
(k) When a party has defaulted and/or the court is otherwise presented
with insufficient evidence to determine gross income, the support
obligation shall be based on available information about the specific
circumstances of the parent, in accordance with clause (iv) of
subparagraph five of paragraph (b) of this subdivision. Such order may
be retroactively modified upward, without a showing of change in
circumstances.
(l) In any action or proceeding for modification of an order of child
support existing prior to the effective date of this paragraph, brought
pursuant to this article, the child support standards set forth in this
subdivision shall not constitute a change of circumstances warranting
modification of such support order; provided, however, that (1) where
the circumstances warrant modification of such order, or (2) where any
party objects to an adjusted child support order made or proposed at the
direction of the support collection unit pursuant to section one hundred
eleven-h or one hundred eleven-n of the social services law, and the
court is reviewing the current order of child support, such standards
shall be applied by the court in its determination with regard to the
request for modification, or disposition of an objection to an adjusted
child support order made or proposed by a support collection unit. In
applying such standards, when the order to be modified incorporates by
reference or merges with a validly executed separation agreement or
stipulation of settlement, the court may consider, in addition to the
factors set forth in paragraph (f) of this subdivision, the provisions
of such agreement or stipulation concerning property distribution,
distributive award and/or maintenance in determining whether the amount
calculated by using the standards would be unjust or inappropriate.
1-c. (a) Notwithstanding any other provision of this chapter to the
contrary, no court shall make an order providing for visitation or
custody to a person who has been convicted of murder in the first or
second degree in this state, or convicted of an offense in another
jurisdiction which, if committed in this state, would constitute either
murder in the first or second degree, of a parent, legal custodian,
legal guardian, sibling, half-sibling or step-sibling of any child who
is the subject of the proceeding. Pending determination of a petition
for visitation or custody, such child shall not visit and no person
shall visit with such child present, such person who has been convicted
of murder in the first or second degree in this state, or convicted of
and offense in another jurisdiction which, if committed in this state,
would constitute either murder in the first or second degree, of a
parent, legal custodian, legal guardian, sibling, half-sibling or
step-sibling of a child who is the subject of the proceeding without the
consent of such child's custodian or legal guardian.
(b) Notwithstanding any other provision of this chapter to the
contrary, there shall be a rebuttable presumption that it is not in the
best interests of the child to:
(A) be placed in the custody of or to visit with a person who has been
convicted of one or more of the following sexual offenses in this state
or convicted of one or more offenses in another jurisdiction which, if
committed in this state, would constitute one or more of the following
offenses, when a child who is the subject of the proceeding was
conceived as a result:
(1) rape in the first or second degree;
(2) course of sexual conduct against a child in the first degree;
(3) predatory sexual assault; or
(4) predatory sexual assault against a child; or
(B) be placed in the custody of or have unsupervised visits with a
person who has been convicted of a felony sex offense, as defined in
section 70.80 of the penal law, or convicted of an offense in another
jurisdiction which, if committed in this state, would constitute such a
felony sex offense, where the victim of such offense was the child who
is the subject of the proceeding.
(c) Notwithstanding paragraph (a) or (b) of this subdivision a court
may order visitation or custody where:
(i) (A) such child is of suitable age to signify assent and such child
assents to such visitation or custody; or
(B) if such child is not of suitable age to signify assent, the
child's custodian or legal guardian assents to such order; or
(C) the person who has been convicted of murder in the first or second
degree, or an offense in another jurisdiction which if committed in this
state, would constitute either murder in the first or second degree, can
prove by a preponderance of the evidence that:
(1) he or she, or a family or household member of either party, was a
victim of domestic violence by the victim of such murder; and
(2) the domestic violence was causally related to the commission of
such murder;
(ii) and the court finds that such visitation or custody is in the
best interests of the child.
(d) For the purpose of making a determination pursuant to clause (C)
of subparagraph (i) of paragraph (c) of this subdivision, the court
shall not be bound by the findings of fact, conclusions of law or
ultimate conclusion as determined by the proceedings leading to the
conviction of murder in the first or second degree in this state or of
an offense in another jurisdiction which, if committed in this state,
would constitute murder in either the first or second degree, of a
parent, legal guardian, legal custodian, sibling, half-sibling or
step-sibling of a child who is the subject of the proceeding. In all
proceedings under this section, an attorney shall be appointed for the
child.
2. (a) An order directing payment of money for child support shall be
enforceable pursuant to section fifty-two hundred forty-one or fifty-two
hundred forty-two of the civil practice law and rules or in any other
manner provided by law. Such orders or judgments for child support and
maintenance shall also be enforceable pursuant to article fifty-two of
the civil practice law and rules upon a debtor's default as such term is
defined in paragraph seven of subdivision (a) of section fifty-two
hundred forty-one of the civil practice law and rules. The establishment
of a default shall be subject to the procedures established for the
determination of a mistake of fact for income executions pursuant to
subdivision (e) of section fifty-two hundred forty-one of the civil
practice law and rules. For the purposes of enforcement of child support
orders or combined spousal and child support orders pursuant to section
five thousand two hundred forty-one of the civil practice law and rules,
a "default" shall be deemed to include amounts arising from retroactive
support.
b. (1) When a child receiving support is a public assistance
recipient, or the order of support is being enforced or is to be
enforced pursuant to section one hundred eleven-g of the social services
law, the court shall direct that the child support payments be made to
the support collection unit. Unless (i) the court finds and sets forth
in writing the reasons that there is good cause not to require immediate
income withholding; or (ii) when the child is not in receipt of public
assistance, a written agreement providing for an alternative arrangement
has been reached between the parties, the support collection unit shall
issue an income execution immediately for child support or combined
maintenance and child support, and may issue an execution for medical
support enforcement in accordance with the provisions of the order of
support. Such written agreement may include an oral stipulation made on
the record resulting in a written order. For purposes of this paragraph,
good cause shall mean substantial harm to the debtor. The absence of an
arrearage or the mere issuance of an income execution shall not
constitute good cause. When an immediate income execution or an
execution for medical support enforcement is issued by the support
collection unit, such income execution shall be issued pursuant to
section five thousand two hundred forty-one of the civil practice law
and rules, except that the provisions thereof relating to mistake of
fact, default and any other provisions which are not relevant to the
issuance of an income execution pursuant to this paragraph shall not
apply; provided, however, that if the support collection unit makes an
error in the issuance of an income execution pursuant to this paragraph,
and such error is to the detriment of the debtor, the support collection
unit shall have thirty days after notification by the debtor to correct
the error. Where permitted under federal law and where the record of the
proceedings contains such information, such order shall include on its
face the social security number and the name and address of the
employer, if any, of the person chargeable with support; provided,
however, that failure to comply with this requirement shall not
invalidate such order. When the court determines that there is good
cause not to immediately issue an income execution or when the parties
agree to an alternative arrangement as provided in this paragraph, the
court shall provide expressly in the order of support that the support
collection unit shall not issue an immediate income execution.
Notwithstanding any such order, the support collection unit shall issue
an income execution for support enforcement when the debtor defaults on
the support obligation, as defined in section five thousand two hundred
forty-one of the civil practice law and rules.
(2) When the court issues an order of child support or combined child
and spousal support on behalf of persons other than those in receipt of
public assistance or in receipt of services pursuant to section one
hundred eleven-g of the social services law, the court shall issue an
income deduction order pursuant to subdivision (c) of section five
thousand two hundred forty-two of the civil practice law and rules at
the same time it issues the order of support. The court shall enter the
income deduction order unless the court finds and sets forth in writing
(i) the reasons that there is good cause not to require immediate income
withholding; or (ii) that an agreement providing for an alternative
arrangement has been reached between the parties. Such agreement may
include a written agreement or an oral stipulation, made on the record,
that results in a written order. For purposes of this paragraph, good
cause shall mean substantial harm to the debtor. The absence of an
arrearage or the mere issuance of an income deduction order shall not
constitute good cause. Where permitted under federal law and where the
record of the proceedings contains such information, such order shall
include on its face the social security number and the name and address
of the employer, if any, of the person chargeable with support;
provided, however, that failure to comply with this requirement shall
not invalidate the order. When the court determines that there is good
cause not to issue an income deduction order immediately or when the
parties agree to an alternative arrangement as provided in this
paragraph, the court shall provide expressly in the order of support the
basis for its decision and shall not issue an income deduction order.
c. Any order of support issued on behalf of a child in receipt of
family assistance or child support enforcement services pursuant to
section one hundred eleven-g of the social services law shall be subject
to review and adjustment by the support collection unit pursuant to
section one hundred eleven-n of the social services law. Such review and
adjustment shall be in addition to any other activities undertaken by
the support collection unit relating to the establishment, modification,
and enforcement of support orders payable to such unit.
3. Order of protection. a. The court may make an order of protection
in assistance or as a condition of any other order made under this
section. The order of protection may set forth reasonable conditions of
behavior to be observed for a specified time by any party. Such an order
may require any party:
(1) to stay away from the home, school, business or place of
employment of the child, other parent or any other party, and to stay
away from any other specific location designated by the court;
(2) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(3) to refrain from committing a family offense, as defined in
subdivision one of section 530.11 of the criminal procedure law, or any
criminal offense against the child or against the other parent or
against any person to whom custody of the child is awarded or from
harassing, intimidating or threatening such persons;
(4) to permit a designated party to enter the residence during a
specified period of time in order to remove personal belongings not in
issue in a proceeding or action under this chapter or the family court
act;
(5) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child;
(6) to pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by such
order if such order is issued or enforced;
(7) to refrain from intentionally injuring or killing, without
justification, any companion animal the respondent knows to be owned,
possessed, leased, kept or held by the person protected by the order or
a minor child residing in such person's household. "Companion animal,"
as used in this section, shall have the same meaning as in subdivision
five of section three hundred fifty of the agriculture and markets law;
(8) (i) to promptly return specified identification documents to the
protected party, in whose favor the order of protection or temporary
order of protection is issued; provided, however, that such order may:
(A) include any appropriate provision designed to ensure that any such
document is available for use as evidence in this proceeding, and
available if necessary for legitimate use by the party against whom such
order is issued; and (B) specify the manner in which such return shall
be accomplished.
(ii) For purposes of this subparagraph, "identification document"
shall mean any of the following: (A) exclusively in the name of the
protected party: birth certificate, passport, social security card,
health insurance or other benefits card, a card or document used to
access bank, credit or other financial accounts or records, tax returns,
any driver's license, and immigration documents including but not
limited to a United States permanent resident card and employment
authorization document; and (B) upon motion and after notice and an
opportunity to be heard, any of the following, including those that may
reflect joint use or ownership, that the court determines are necessary
and are appropriately transferred to the protected party: any card or
document used to access bank, credit or other financial accounts or
records, tax returns, and any other identifying cards and documents;
(9) (i) to refrain from remotely controlling any connected devices
affecting the home, vehicle or property of the person protected by the
order.
(ii) For purposes of this subparagraph, "connected device" shall mean
any device, or other physical object that is capable of connecting to
the internet, directly or indirectly, and that is assigned an internet
protocol address or bluetooth address; and
(10) to observe such other conditions as are necessary to further the
purposes of protection.
a-1. Translation and interpretation of orders of protection. The
office of court administration shall, in accordance with paragraph (t)
of subdivision two of section two hundred twelve of the judiciary law,
ensure that a court order of protection and temporary order of
protection is translated in writing into the appropriate language for a
party to a proceeding where the court has appointed an interpreter. The
office of court administration shall ensure that the standard language
of the office of court administration order of protection and temporary
order of protection forms shall be translated in writing in the
languages most frequently used in the courts of each judicial department
in accordance with paragraph (t) of subdivision two of section two
hundred twelve of the judiciary law. A copy of the written translation
shall be given to each party in the proceeding, along with the original
order or temporary order of protection issued in English. A copy of this
written translation shall also be included as part of the record of the
proceeding. The court shall read the essential terms and conditions of
the order aloud on the record and direct the court appointed interpreter
to interpret the same terms and conditions. Such written translation or
interpretation shall not affect the validity or enforceability of the
order. In every case a party to a proceeding shall be provided with an
English copy of any court order of protection or temporary order of
protection issued. The authority provided herein shall be in addition to
and shall not be deemed to diminish or reduce any rights of the parties
under existing law.
b. An order of protection entered pursuant to this subdivision shall
bear in a conspicuous manner, on the front page of said order, the
language "Order of protection issued pursuant to section two hundred
forty of the domestic relations law". The order of protection shall also
contain the following notice: "This order of protection will remain in
effect even if the protected party has, or consents to have, contact or
communication with the party against whom the order is issued. This
order of protection can only be modified or terminated by the court. The
protected party cannot be held to violate this order nor be arrested for
violating this order.". The absence of such language shall not affect
the validity of such order. The presentation of a copy of such an order
to any peace officer acting pursuant to his or her special duties, or
police officer, shall constitute authority, for that officer to arrest a
person when that person has violated the terms of such an order, and
bring such person before the court and, otherwise, so far as lies within
the officer's power, to aid in securing the protection such order was
intended to afford.
c. An order of protection entered pursuant to this subdivision may be
made in the final judgment in any matrimonial action or in a proceeding
to obtain custody of or visitation with any child under this section, or
by one or more orders from time to time before or subsequent to final
judgment, or by both such order or orders and the final judgment. The
order of protection may remain in effect after entry of a final
matrimonial judgment and during the minority of any child whose custody
or visitation is the subject of a provision of a final judgment or any
order. An order of protection may be entered notwithstanding that the
court for any reason whatsoever, other than lack of jurisdiction,
refuses to grant the relief requested in the action or proceeding.
d. The chief administrator of the courts shall promulgate appropriate
uniform temporary orders of protection and orders of protection forms,
applicable to proceedings under this article, to be used throughout the
state. Such forms shall be promulgated and developed in a manner to
ensure the compatibility of such forms with the statewide computerized
registry established pursuant to section two hundred twenty-one-a of the
executive law.
e. No order of protection may direct any party to observe conditions
of behavior unless: (i) the party requesting the order of protection has
served and filed an action, proceeding, counter-claim or written motion
and, (ii) the court has made a finding on the record that such party is
entitled to issuance of the order of protection which may result from a
judicial finding of fact, judicial acceptance of an admission by the
party against whom the order was issued or judicial finding that the
party against whom the order is issued has given knowing, intelligent
and voluntary consent to its issuance. The provisions of this
subdivision shall not preclude the court from issuing a temporary order
of protection upon the court's own motion or where a motion for such
relief is made to the court, for good cause shown. In any proceeding
pursuant to this article, a court shall not deny an order of protection,
or dismiss an application for such an order, solely on the basis that
the acts or events alleged are not relatively contemporaneous with the
date of the application or the conclusion of the action. The duration of
any temporary order shall not by itself be a factor in determining the
length or issuance of any final order.
f. In addition to the foregoing provisions, the court may issue an
order, pursuant to section two hundred twenty-seven-c of the real
property law, authorizing the party for whose benefit any order of
protection has been issued to terminate a lease or rental agreement
pursuant to section two hundred twenty-seven-c of the real property law.
g. Any party moving for a temporary order of protection pursuant to
this subdivision during hours when the court is open shall be entitled
to file such motion or pleading containing such prayer for emergency
relief on the same day that such person first appears at such court, and
a hearing on the motion or portion of the pleading requesting such
emergency relief shall be held on the same day or the next day that the
court is in session following the filing of such motion or pleading.
h. Upon issuance of an order of protection or temporary order of
protection or upon a violation of such order, the court shall make a
determination regarding the suspension and revocation of a license to
carry, possess, repair or dispose of a firearm or firearms,
ineligibility for such a license and the surrender of firearms in
accordance with sections eight hundred forty-two-a and eight hundred
forty-six-a of the family court act, as applicable. Upon issuance of an
order of protection pursuant to this section or upon a finding of a
violation thereof, the court also may direct payment of restitution in
an amount not to exceed ten thousand dollars in accordance with
subdivision (e) of section eight hundred forty-one of such act;
provided, however, that in no case shall an order of restitution be
issued where the court determines that the party against whom the order
would be issued has already compensated the injured party or where such
compensation is incorporated in a final judgment or settlement of the
action.
i. The protected party in whose favor the order of protection or
temporary order of protection is issued may not be held to violate such
an order nor may such protected party be arrested for violating such
order.
* 3-a. Service of order of protection. a. If a temporary order of
protection has been issued or an order of protection has been issued
upon a default, unless the party requesting the order states on the
record that she or he will arrange for other means for service or
deliver the order to a peace or police officer directly for service, the
court shall immediately deliver a copy of the temporary order of
protection or order of protection to a peace officer, acting pursuant to
his or her special duties and designated by the court, or to a police
officer as defined in paragraph (b) or (d) of subdivision thirty-four of
section 1.20 of the criminal procedure law, or, in the city of New York,
to a designated representative of the police department of the city of
New York. Any peace or police officer or designated person receiving a
temporary order of protection or an order of protection as provided
hereunder shall serve or provide for the service thereof together with
any associated papers that may be served simultaneously, at any address
designated therewith, including the summons and petition or complaint if
not previously served. Service of such temporary order of protection or
order of protection and associated papers shall, insofar as practicable,
be achieved promptly. An officer or designated person obliged to perform
service pursuant to this subdivision, and his or her employer, shall not
be liable for damages resulting from failure to achieve service where,
having made a reasonable effort, such officer or designated person is
unable to locate and serve the temporary order of protection or order of
protection at any address provided by the party requesting the order. A
statement subscribed by the officer or designated person, and affirmed
by him or her to be true under the penalties of perjury, stating the
papers served, the date, time, address or in the event there is no
address, place, and manner of service, the name and a brief physical
description of the party served, shall be proof of service of the
summons, petition and temporary order of protection or order of
protection. When the temporary order of protection or order of
protection and other papers, if any, have been served, such officer or
designated person shall provide the court with an affirmation,
certificate or affidavit of service and shall provide notification of
the date and time of such service to the statewide computer registry
established pursuant to section two hundred twenty-one-a of the
executive law.
b. Notwithstanding any other provision of law, all orders of
protection and temporary orders of protection filed and entered along
with any associated papers that may be served simultaneously may be
transmitted by facsimile transmission or electronic means for expedited
service in accordance with the provisions of this subdivision. For
purposes of this subdivision, "facsimile transmission" and "electronic
means" shall be as defined in subdivision (f) of rule twenty-one hundred
three of the civil practice law and rules.
* NB Separately amended cannot be put together
* 3-a. Service of order of protection. (a) If a temporary order of
protection has been issued or an order of protection has been issued
upon a default, unless the party requesting the order states on the
record that she or he will arrange for other means for service or
deliver the order to a peace or police officer directly for service, the
court shall immediately deliver a copy of the temporary order of
protection or order of protection together with any associated papers
that may be served simultaneously including the summons and petition, to
a peace officer, acting pursuant to his or her special duties and
designated by the court, or to a police officer as defined in paragraph
(b) or (d) of subdivision thirty-four of section 1.20 of the criminal
procedure law, or, in the city of New York, to a designated
representative of the police department of the city of New York. Any
peace or police officer or designated person receiving a temporary order
of protection or an order of protection as provided in this section
shall serve or provide for the service thereof together with any
associated papers that may be served simultaneously, at any address
designated therewith, including the summons and petition or complaint if
not previously served. Service of such temporary order of protection or
order of protection and associated papers shall, insofar as practicable,
be achieved promptly. An officer or designated person obliged to perform
service pursuant to this subdivision, and his or her employer, shall not
be liable for damages resulting from failure to achieve service where,
having made a reasonable effort, such officer or designated person is
unable to locate and serve the temporary order of protection or order of
protection at any address provided by the party requesting the order.
(b) When the temporary order of protection or order of protection and
associated papers, if any, have been served, such officer or designated
person shall provide the court with an affirmation, certificate or
affidavit of service when the temporary order of protection or order of
protection has been served, and shall provide notification of the date
and time of such service to the statewide computer registry established
pursuant to section two hundred twenty-one-a of the executive law. A
statement subscribed by the officer or designated person, and affirmed
by him or her to be true under the penalties of perjury, stating the
papers served, the date, time, address or in the event there is no
address, place, and manner of service, the name and a brief physical
description of the party served, shall be proof of service of the
summons, petition and temporary order of protection or order of
protection.
(c) Where an officer or designated person obliged to perform service
pursuant to this section is unable to complete service of the temporary
order of protection or order of protection, such officer or designated
person shall provide the court with proof of attempted service of the
temporary order of protection or order of protection with information
regarding the dates, times, locations and manner of attempted service.
An affirmation, certificate or affidavit of service with a statement
subscribed by the officer or designated person, and affirmed by him or
her to be true under the penalties of perjury, stating the name of the
party and the papers attempted to be served on said person, and for each
attempted service, the date, time, address or in the event there is no
address, place, and manner of attempted service, shall be proof of
attempted service.
(d) Any peace or police officer or designated person performing
service under this subdivision shall not charge a fee for such service,
including, but not limited to, fees as provided under section eight
thousand eleven of the civil practice law and rules.
* NB Separately amended cannot be put together
3-b. Emergency powers; local criminal court. If the court that issued
an order of protection or temporary order of protection under this
section or warrant in connection thereto is not in session when an
arrest is made for an alleged violation of the order or upon a warrant
issued in connection with such violation, the arrested person shall be
brought before a local criminal court in the county of arrest or in the
county in which such warrant is returnable pursuant to article one
hundred twenty of the criminal procedure law and arraigned by such
court. Such local criminal court shall order the commitment of the
arrested person to the custody of the sheriff, admit to, fix or accept
bail, or release the arrested person on his or her recognizance pending
appearance in the court that issued the order of protection, temporary
order of protection or warrant. In making such order, such local
criminal court shall consider the bail recommendation, if any, made by
the supreme or family court as indicated on the warrant or certificate
of warrant. Unless the petitioner or complainant requests otherwise, the
court, in addition to scheduling further criminal proceedings, if any,
regarding such alleged family offense or violation allegation, shall
make such matter returnable in the supreme or family court, as
applicable, on the next day such court is in session.
3-c. Orders of protection; filing and enforcement of out-of-state
orders. A valid order of protection or temporary order of protection
issued by a court of competent jurisdiction in another state,
territorial or tribal jurisdiction shall be accorded full faith and
credit and enforced as if it were issued by a court within the state for
as long as the order remains in effect in the issuing jurisdiction in
accordance with sections two thousand two hundred sixty-five and two
thousand two hundred sixty-six of title eighteen of the United States
Code.
a. An order issued by a court of competent jurisdiction in another
state, territorial or tribal jurisdiction shall be deemed valid if:
(1) the issuing court had personal jurisdiction over the parties and
over the subject matter under the law of the issuing jurisdiction;
(2) the person against whom the order was issued had reasonable notice
and an opportunity to be heard prior to issuance of the order; provided,
however, that if the order was a temporary order of protection issued in
the absence of such person, that notice had been given and that an
opportunity to be heard had been provided within a reasonable period of
time after the issuance of the order; and
(3) in the case of orders of protection or temporary orders of
protection issued against both a petitioner and respondent, the order or
portion thereof sought to be enforced was supported by: (i) a pleading
requesting such order, including, but not limited to, a petition,
cross-petition or counterclaim; and (ii) a judicial finding that the
requesting party is entitled to the issuance of the order, which may
result from a judicial finding of fact, judicial acceptance of an
admission by the party against whom the order was issued or judicial
finding that the party against whom the order was issued had give
knowing, intelligent and voluntary consent to its issuance.
b. Notwithstanding the provisions of article fifty-four of the civil
practice law and rules, an order of protection or temporary order of
protection issued by a court of competent jurisdiction in another state,
territorial or tribal jurisdiction, accompanied by a sworn affidavit
that upon information and belief such order is in effect as written and
has not been vacated or modified, may be filed without fee with the
clerk of the court, who shall transmit information regarding such order
to the statewide registry of orders of protection and warrants
established pursuant to section two hundred twenty-one-a of the
executive law; provided, however, that such filing and registry entry
shall not be required for enforcement of the order.
4. One-time adjustment of child support orders issued prior to
September fifteenth, nineteen hundred eighty-nine. Any party to a child
support order issued prior to September fifteenth, nineteen hundred
eighty-nine on the behalf of a child in receipt of public assistance or
child support services pursuant to section one hundred eleven-g of the
social services law may request that the support collection unit
undertake one review of the order for adjustment purposes pursuant to
section one hundred eleven-h of the social services law. A hearing on
the adjustment of such order shall be granted upon the objection of
either party pursuant to the provisions of this section. An order shall
be adjusted if as of the date of the support collection unit's review of
the correct amount of child support as calculated pursuant to the
provisions of this section would deviate by at least ten percent from
the child support ordered in the current order of support. Additionally,
a new order shall be issued upon a showing that the current order of
support does not provide for the health care needs of the child through
insurance or otherwise. Eligibility of the child for medical assistance
shall not relieve any obligation the parties otherwise have to provide
for the health care needs of the child. The support collection unit's
review of a child support order shall be made on notice to all parties
to the current support order. Nothing herein shall be deemed in any way
to limit, restrict, expand or impair the rights of any party to file for
a modification of a child support order as is otherwise provided by law.
(1) Upon mailing of an adjustment finding and where appropriate a
proposed order in conformity with such finding filed by either party or
by the support collection unit, a party shall have thirty-five days from
the date of mailing to submit to the court identified thereon specific
written objections to such finding and proposed order.
(a) If specific written objections are submitted by either party or by
the support collection unit, a hearing shall be scheduled by the court
on notice to the parties and the support collection unit, who then shall
have the right to be heard by the court and to offer evidence in support
of or in opposition to adjustment of the support order.
(b) The party filing the specific written objections shall bear the
burden of going forward and the burden of proof; provided, however, that
if the support collection unit has failed to provide the documentation
and information required by subdivision fourteen of section one hundred
eleven-h of the social services law, the court shall first require the
support collection unit to furnish such documents and information to the
parties and the court.
(c) If the court finds by a preponderance of the evidence that the
specific written objections have been proven, the court shall
recalculate or readjust the proposed adjusted order accordingly or, for
good cause, shall remand the order to the support collection unit for
submission of a new proposed adjusted order. Any readjusted order so
issued by the court or resubmitted by the support collection unit after
a remand by the court shall be effective as of the date the proposed
adjusted order would have been effective had no specific written
objections been filed.
(d) If the court finds that the specific written objections have not
been proven by a preponderance of the evidence, the court shall
immediately issue the adjusted order as submitted by the support
collection unit, which shall be effective as of the date the order would
have been effective had no specific written exceptions been filed.
(e) If the court receives no specific written objections to the
support order within thirty-five days of the mailing of the proposed
order the clerk of the court shall immediately enter the order without
further review, modification, or other prior action by the court or any
judge or support magistrate thereof, and the clerk shall immediately
transmit copies of the order of support to the parties and to the
support collection unit.
(2) A motion to vacate an order of support adjusted pursuant to this
section may be made no later than forty-five days after an adjusted
support order is executed by the court where no specific written
objections to the proposed order have been timely received by the court.
Such motion shall be granted only upon a determination by the court
issuing such order that personal jurisdiction was not timely obtained
over the moving party.
* 5. Provision of child support orders to the state case registry. The
court shall direct that a copy of any child support or combined child
and spousal support order issued by the court on or after the first day
of October, nineteen hundred ninety-eight, in any proceeding under this
section be provided promptly to the state case registry established
pursuant to subdivision four-a of section one hundred eleven-b of the
social services law.
* NB There are 2 subdivision 5's
* 5. On-going cost of living adjustment of child support orders issued
prior to September fifteenth, nineteen hundred eighty-nine. Any party to
a child support order issued prior to September fifteenth, nineteen
hundred eighty-nine on the behalf of a child in receipt of public
assistance or child support services pursuant to section one hundred
eleven-g of the social services law may request that the support
collection unit review the order for a cost of living adjustment in
accordance with the provisions of section two hundred forty-c of this
article.
* NB There are 2 subdivision 5's
Judgment or decree; additional provision. In any action or
proceeding brought under the provisions of this chapter wherein all or
part of the relief granted is divorce or annulment of a marriage any
interlocutory or final judgment or decree shall contain, as a part
thereof, the social security numbers of the named parties in the action
or proceeding, as well as a provision that each party may resume the use
of his or her premarriage surname or any other former surname.
Order of support by parent. When the court makes an order of
support pursuant to section two hundred forty of this article, and where
permitted under federal law and where the record of the proceedings
contains such information, the court shall require the social security
number of such parent to be affixed to such order; provided, however,
that no such order shall be invalid because of the omission of such
number. Where the record of the proceedings contains such information,
such order shall also include on its face the name and address of the
employer, if any, of the person chargeable with support provided,
however, that failure to comply with this requirement shall not
invalidate such order. Where the order of child support or combined
child and spouse support is made on behalf of persons in receipt of
public assistance or in receipt of services pursuant to section one
hundred eleven-g of the social services law, the court shall require
each party to provide, and update upon any change, the following
information to the court by reporting such change to the support
collection unit designated by the appropriate social services district:
social security number, residential and mailing addresses, telephone
number, driver's license number; and name, address and telephone number
of the parties' employers. Due process requirements for notice and
service of process for subsequent hearings are met, with respect to such
party, upon sending written notice by first class mail to the most
recent residential address on record with the support collection unit;
or by sending by first class mail written notice to the most recent
employer address on record with the support collection unit, if a true
copy thereof also is sent by first class mail to the most recent
residential address on record with the support collection unit. Any such
order issued on or after the first day of October, nineteen hundred
ninety-nine shall also include, where available, the social security
number of each child on whose behalf support has been ordered.
Review and cost of living adjustment of child support orders.
1. Request. Any party to a child support order issued on behalf of a
child in receipt of public assistance, or child support enforcement
services pursuant to section one hundred eleven-g of the social services
law may request that the support collection unit review the order for
cost of living adjustment purposes pursuant to section one hundred
eleven-n of the social services law.
2. Adjustment process. (a) A cost of living adjustment shall be made
by the support collection unit with respect to an order of support under
review if the sum of the annual average changes of the consumer price
index for all urban consumers (CPI-U), as published annually by the
United States department of labor bureau of labor statistics, is ten
percent or greater.
(b) The cost of living adjustment and adjusted child support
obligation amount as calculated by the review shall be reflected on the
adjusted order issued by the support collection unit and mailed to the
parties by first class mail. The child support obligation amount
contained in the adjusted order shall be due and owing on the date the
first payment is due under the terms of the order of support which was
reviewed and adjusted occurring on or after the effective date of the
adjusted order.
(c) The support collection unit shall provide a copy of the adjusted
order to the court which issued the most recent order of support, which
shall append it to the order.
3. Objection process. (a) An objection to a cost of living adjustment,
as reflected in an adjusted order issued by a support collection unit,
may be made to the court by either party to the order, or by the support
collection unit, and shall be submitted to the court in writing within
thirty-five days from the date of mailing of the adjusted order. A copy
of the written objection shall be provided by the objecting party to the
other party and to the support collection unit.
(b) Where such objections are timely filed, the cost of living
adjustment shall not take effect, and a hearing on the adjustment of
such order shall be granted pursuant to the provisions of this section,
which shall result in either:
(1) the issuance by the court of a new order of support in accordance
with the child support standards as set forth in section two hundred
forty of this article; or
(2) where application of the child support standards as set forth in
section two hundred forty of this article results in a determination
that no adjustment is appropriate, an order of no adjustment.
(c) Any order of support made by the court under this section shall
occur without the requirement for proof or showing of a change in
circumstances.
(d) The court shall conduct the hearing and make its determination no
later than forty-five days from the date it receives an objection. If
the order under review does not provide for health insurance benefits
for the child, the court shall make a determination regarding such
benefits pursuant to section two hundred forty of this article. The
clerk of the court shall immediately transmit copies of the order of
support or order of no adjustment issued by the court pursuant to this
subdivision to the parties and the support collection unit. Where a
hearing results in the issuance of a new order of support, the effective
date of the court order shall be the earlier of the date of the court
determination or the date the cost of living adjustment would have been
effective had it not been challenged.
(e) Where no objection has been timely raised to a cost of living
adjustment as reflected in an adjusted order, such adjustment shall
become final without further review by the court or any judge or support
magistrate thereof.
4. Modification of orders. Nothing herein shall be deemed in any way
to limit, restrict, expand or impair the rights of any party to file for
a modification of a child support order as is otherwise provided by law.
5. Notice. Parties eligible for adjustment of child support orders
shall receive notice of the right to review such orders as follows:
(a) All applications or motions by the support collection unit or by
persons seeking support enforcement services through the support
collection unit for the establishment, modification, enforcement,
violation or adjustment of child support orders shall on their face in
conspicuous type state:
NOTE: (1) A COURT ORDER OF SUPPORT RESULTING FROM A PROCEEDING
COMMENCED BY THIS APPLICATION (MOTION) SHALL BE ADJUSTED BY THE
APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE
SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER SUCH
ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED, UPON THE REQUEST OF ANY
PARTY TO THE ORDER OR PURSUANT TO PARAGRAPH (2) BELOW. SUCH COST OF
LIVING ADJUSTMENT SHALL BE ON NOTICE TO BOTH PARTIES WHO, IF THEY OBJECT
TO THE COST OF LIVING ADJUSTMENT, SHALL HAVE THE RIGHT TO BE HEARD BY
THE COURT AND TO PRESENT EVIDENCE WHICH THE COURT WILL CONSIDER IN
ADJUSTING THE CHILD SUPPORT ORDER IN ACCORDANCE WITH SUBDIVISION 1-B OF
SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW, KNOWN AS THE
CHILD SUPPORT STANDARDS ACT.
(2) A PARTY SEEKING SUPPORT FOR ANY CHILD(REN) RECEIVING FAMILY
ASSISTANCE SHALL HAVE A CHILD SUPPORT ORDER REVIEWED AND ADJUSTED AT THE
DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR
MONTHS AFTER SUCH ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED BY THE
SUPPORT COLLECTION UNIT, WITHOUT FURTHER APPLICATION BY ANY PARTY. ALL
PARTIES WILL RECEIVE A COPY OF THE ADJUSTED ORDER.
(3) WHERE ANY PARTY FAILS TO PROVIDE, AND UPDATE UPON ANY CHANGE, THE
SUPPORT COLLECTION UNIT WITH A CURRENT ADDRESS, AS REQUIRED BY SECTION
TWO HUNDRED FORTY-B OF THE DOMESTIC RELATIONS LAW, TO WHICH AN ADJUSTED
ORDER CAN BE SENT, THE SUPPORT OBLIGATION AMOUNT CONTAINED THEREIN SHALL
BECOME DUE AND OWING ON THE DATE THE FIRST PAYMENT IS DUE UNDER THE
TERMS OF THE ORDER OF SUPPORT WHICH WAS REVIEWED AND ADJUSTED OCCURRING
ON OR AFTER THE EFFECTIVE DATE OF THE ADJUSTED ORDER, REGARDLESS OF
WHETHER OR NOT THE PARTY HAS RECEIVED A COPY OF THE ADJUSTED ORDER.
(b) All court orders of support payable through a support collection
unit shall on their face in conspicuous type state:
NOTE: (1) THIS ORDER OF CHILD SUPPORT SHALL BE ADJUSTED BY THE
APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE
SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER THIS
ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED, UPON THE REQUEST OF ANY
PARTY TO THE ORDER OR PURSUANT TO PARAGRAPH (2) BELOW. UPON APPLICATION
OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT
COLLECTION UNIT, AN ADJUSTED ORDER SHALL BE SENT TO THE PARTIES WHO, IF
THEY OBJECT TO THE COST OF LIVING ADJUSTMENT, SHALL HAVE THIRTY-FIVE
(35) DAYS FROM THE DATE OF MAILING TO SUBMIT A WRITTEN OBJECTION TO THE
COURT INDICATED ON SUCH ADJUSTED ORDER. UPON RECEIPT OF SUCH WRITTEN
OBJECTION, THE COURT SHALL SCHEDULE A HEARING AT WHICH THE PARTIES MAY
BE PRESENT TO OFFER EVIDENCE WHICH THE COURT WILL CONSIDER IN ADJUSTING
THE CHILD SUPPORT ORDER IN ACCORDANCE WITH THE CHILD SUPPORT STANDARDS
ACT.
(2) A RECIPIENT OF FAMILY ASSISTANCE SHALL HAVE THE CHILD SUPPORT
ORDER REVIEWED AND ADJUSTED AT THE DIRECTION OF THE SUPPORT COLLECTION
UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER SUCH ORDER IS ISSUED, LAST
MODIFIED OR LAST ADJUSTED WITHOUT FURTHER APPLICATION BY ANY PARTY. ALL
PARTIES WILL RECEIVE A COPY OF THE ADJUSTED ORDER.
(3) WHERE ANY PARTY FAILS TO PROVIDE, AND UPDATE UPON ANY CHANGE, THE
SUPPORT COLLECTION UNIT WITH A CURRENT ADDRESS, AS REQUIRED BY SECTION
TWO HUNDRED FORTY-B OF THE DOMESTIC RELATIONS LAW, TO WHICH AN ADJUSTED
ORDER CAN BE SENT, THE SUPPORT OBLIGATION AMOUNT CONTAINED THEREIN SHALL
BECOME DUE AND OWING ON THE DATE THE FIRST PAYMENT IS DUE UNDER THE
TERMS OF THE ORDER OF SUPPORT WHICH WAS REVIEWED AND ADJUSTED OCCURRING
ON OR AFTER THE EFFECTIVE DATE OF THE ADJUSTED ORDER, REGARDLESS OF
WHETHER OR NOT THE PARTY HAS RECEIVED A COPY OF THE ADJUSTED ORDER.
Support orders for certain adult dependents. 1.
Notwithstanding any other law, a person who would otherwise be
chargeable under law with support of a minor child is also chargeable
with the support of any such individual until such individual reaches
the age of twenty-six, when it shall appear to the satisfaction of the
court that the person is developmentally disabled as defined in
subdivision twenty-two of section 1.03 of the mental hygiene law,
resides with the person seeking such support, and is principally
dependent on such person for maintenance. A finding of a developmental
disability shall be supported by a diagnosis and accompanying report of
a physician, licensed psychologist, registered professional nurse,
licensed clinical social worker or a licensed master social worker under
the supervision of a physician, psychologist or licensed clinical social
worker authorized to practice under title eight of the education law,
and acting within their lawful scope of practice.
2. Upon petition brought by such person, the court shall make its
award for support for such individual with a developmental disability in
accordance with the provisions of subdivision one-b of section two
hundred forty of this article. In addition to the provisions of
subdivision one-b of section two hundred forty of this article, the
court may consider whether the financial responsibility of caring for
the individual has been unreasonably placed on one parent when
determining the support obligation. The duration of time the court may
use when considering this factor shall be limited to the time period
from when the child turned twenty-one until the individual turns
twenty-six. If a child support order ended at the age of eighteen then
such time period shall be from when the child turned eighteen until the
individual turns twenty-six.
3. The court has jurisdiction to determine proceedings brought by
petition and order to show cause, for the determination of support of
such adult dependents, as well as to enforce or modify orders or
judgments.
4. The court shall have discretion to order the payor party to make
support payments either to the petitioner or to the trustee of an
"exception trust" as defined in 42 U.S.C. 1396p(d)(4)(A) and (C), clause
(iii) of subparagraph two of paragraph (b) of subdivision two of section
three hundred sixty-six of the social services law, and section 7-1.12
of the estates, powers and trusts law if such direction would assist in
maximizing assistance to the child.
5. Except where inconsistent with this section, all provisions of this
article relating to orders of child support shall apply to all orders of
support for adults with developmental disabilities; provided, however,
that such orders shall not be eligible for services pursuant to section
one hundred eleven-g of the social services law.
6. A determination made pursuant to this section that the person is or
is not developmentally disabled, as defined in subdivision twenty-two of
section 1.03 of the mental hygiene law, shall not be binding on the
state, a local government or the person for any other purpose, including
determinations of eligibility for services authorized by the office for
people with developmental disabilities.
Interference with or withholding of visitation rights; alimony
or maintenance suspension. When it appears to the satisfaction of the
court that a custodial parent receiving alimony or maintenance pursuant
to an order, judgment or decree of a court of competent jurisdiction has
wrongfully interfered with or withheld visitation rights provided by
such order, judgment or decree, the court, in its discretion, may
suspend such payments or cancel any arrears that may have accrued during
the time that visitation rights have been or are being interfered with
or withheld. Nothing in this section shall constitute a defense in any
court to an application to enforce payment of child support or grounds
for the cancellation of arrears for child support.
Security for payments by defendant in action for divorce,
separation or annulment; sequestration. Where a judgment rendered or an
order made in an action in this state for divorce, separation or
annulment, or for a declaration of nullity of a void marriage, or a
judgment rendered in another state for divorce upon any of the grounds
provided in section one hundred seventy of this chapter, or for
separation or separate support and maintenance for any of the causes
specified in section two hundred, or for relief, however designated,
granted upon grounds which in this state would be grounds for annulment
of marriage or for a declaration of nullity of a void marriage, upon
which an action has been brought in this state and judgment rendered
therein, requires a spouse to provide for the education or maintenance
of any of the children of a marriage, or for the support of his or her
spouse, the court, in its discretion, also may direct the spouse from
whom maintenance or support is sought to give reasonable security, in
such a manner and within such a time as it thinks proper, for the
payment, from time to time, of the sums of money required for that
purpose. If he or she fails to give the security, or to make any payment
required by the terms of such a judgment or order, whether or not
security has been given therefor, or to pay any sum of money for the
support and maintenance of the children or the support and maintenance
of the spouse during the pendency of the action, or for counsel fees and
expenses which he or she is required to pay by a judgment or order, the
court may cause his or her personal property and the rents and profits
of his or her real property to be sequestered, and may appoint a
receiver thereof. The rents and profits and other property so
sequestered may be applied, from time to time, under the direction of
the court, to the payment of any of the sums of money specified in this
section, as justice requires; and if the same shall be insufficient to
pay the sums of money required, the court, on application of the
receiver, may direct the mortgage or sale of such real property by the
receiver, under such terms and conditions as it may prescribe,
sufficient to pay such sums.
Enforcement by execution of judgment or order in action for
divorce, separation or annulment. Where a spouse in an action for
divorce, separation or annulment, or declaration of nullity of a void
marriage, or a person other than a spouse when an action for an
annulment is maintained after the death of a spouse, defaults in paying
any sum of money as required by the judgment or order directing the
payment thereof, or as required by the terms of an agreement or
stipulation incorporated by reference in a judgment, such direction
shall be enforceable pursuant to section fifty-two hundred forty-one or
fifty-two hundred forty-two of the civil practice law and rules. Upon
application the court shall make an order directing the entry of
judgment for the amount of arrears of child support together with costs
and disbursements. The court shall make an order directing the entry of
judgment for the amount of arrears of any other payments so directed,
together with costs and disbursements, unless the defaulting party shows
good cause for failure to make application for relief from the judgment
or order directing such payment prior to the accrual of such arrears.
The court shall not make an order reducing or cancelling arrears unless
the facts and circumstances constituting good cause are set forth in a
written memorandum of decision. The application for such order shall be
upon such notice to the spouse or other person as the court may direct.
Such judgment may be enforced by execution or in any other manner
provided by law for the collection of money judgments. The relief herein
provided for is in addition to any and every other remedy to which a
spouse may be entitled under the law; provided that when a judgment for
such arrears or any part thereof shall have been entered pursuant to
this section, such judgment shall thereafter not be subject to
modification under the discretionary power granted by this section; and
after the entry of such judgment the judgment creditor shall not
hereafter be entitled to collect by any form of remedy any greater
portion of such arrears than that represented by the judgment so
entered. Such judgment shall provide for the payment of interest on the
amount of any arrears if the default was willful, in that the obligated
spouse knowingly, consciously and voluntarily disregarded the obligation
under a lawful court order. Such interest shall be computed from the
date on which the payment was due, at the prevailing rate of interest on
judgments as provided in the civil practice law and rules.
Enforcement of arrears which accrue during pendency of an
enforcement proceeding. In any proceeding for enforcement of payment of
any sum of money as required by judgment or order the party seeking
enforcement may amend the papers in support of the application for
enforcement to include any additional arrears which have accrued since
the commencement of such enforcement proceeding at the time of a hearing
upon or submission of the matter, provided that written notice of the
intention to so amend has been given eight days previously.
Child support proceedings and enforcement of arrears;
suspension of driving privileges.
(a) In any proceeding for the enforcement of a direction or agreement,
incorporated in a judgment or order, to pay any sum of money as child
support or combined child and spousal support, if the court is satisfied
by competent proof that the respondent has accumulated support arrears
equivalent to or greater than the amount of support due pursuant to such
judgment or order for a period of four months, the court may order the
department of motor vehicles to suspend the respondent's driving
privileges, and if such order issues, the respondent may apply to the
department of motor vehicles for a restricted use license pursuant to
section five hundred thirty of the vehicle and traffic law. The court
may at any time upon payment of arrears or partial payment of arrears by
the respondent order the department of motor vehicles to terminate the
suspension of respondent's driving privileges. For purposes of
determining whether a support obligor has accumulated support arrears
equivalent to or greater than the amount of support due for a period of
four months, the amount of any retroactive support, other than periodic
payments of retroactive support which are past due, shall not be
included in the calculation of support arrears pursuant to this section.
(b) If the respondent, after receiving appropriate notice, fails to
comply with a summons, subpoena or warrant relating to a paternity or
child support proceeding, the court may order the department of motor
vehicles to suspend the respondent's driving privileges. The court may
subsequently order the department of motor vehicles to terminate the
suspension of the respondent's driving privileges; however, the court
shall order the termination of such suspension when the court is
satisfied that the respondent has fully complied with all summonses,
subpoenas and warrants relating to a paternity or child support
proceeding.
(c) The provisions of subdivision (a) of this section shall not apply
to:
(i) respondents who are receiving public assistance or supplemental
security income; or
(ii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one-b of section two hundred forty of this
chapter falls below the self-support reserve as defined by subparagraph
six of paragraph (b) of subdivision one-b of section two hundred forty
of this chapter; or
(iii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one-b of section two hundred forty of this
chapter remaining after the payment of the current support obligation
would fall below the self-support reserve as defined by subparagraph six
of paragraph (b) of subdivision one-b of section two hundred forty of
this chapter.
(d) The court's discretionary decision not to suspend driving
privileges shall not have any res judicata effect or preclude any other
agency with statutory authority to direct the department of motor
vehicles to suspend driving privileges.
Child support proceedings and enforcement of arrears;
suspensions of state professional, occupational and business licenses.
(a) In any proceeding for enforcement of a direction or agreement,
incorporated in a judgement or order, to pay any sum of money as child
support or combined child and spousal support, if the court is satisfied
by competent proof that the respondent has accumulated support arrears
equivalent to or greater than the amount of support due pursuant to such
judgment or order for a period of four months and that the respondent is
licensed, permitted or registered by or with a board, department,
authority or office of this state to conduct a trade, business,
profession or occupation, the court may order such board, department,
authority or office to commence proceedings as required by law regarding
the suspension of such license, permit, registration, or authority to
practice and to inform the court of the actions it has taken pursuant to
such proceedings. For purposes of determining whether a respondent has
accumulated support arrears equivalent to or greater than the amount of
support due for a period of four months, the amount of any retroactive
support, other than periodic payments of retroactive support which are
past due, shall not be included in the calculation of support arrears
pursuant to this section.
(b) If the respondent, after receiving appropriate notice, fails to
comply with a summons, subpoena or warrant relating to a paternity or
child support proceeding, and the court has determined that the
respondent is licensed, permitted or registered by or with a board,
department, authority or office of this state or one of its political
subdivisions or instrumentalities to conduct a trade, business,
profession or occupation, the court may order such board, department,
authority or office to commence proceedings as required by law regarding
the suspension of such license, permit, registration or authority to
practice and to inform the court of the actions it has taken pursuant to
such proceeding. The court may subsequently order such board,
department, authority or office to terminate the suspension of the
respondent's license, permit, registration or authority to practice;
however, the court shall order the termination of such suspension when
the court is satisfied that the respondent has fully complied with all
summons, subpoenas and warrants relating to a paternity or child support
proceeding.
(c) If the court determines that the suspension of the license, permit
or registration of the respondent would create an extreme hardship to
either the licensee, permittee or registrant or to persons whom he or
she serves, the court may, in lieu of suspension, suspend the order
described in subdivision (a) of this section to the licensing entity for
a period not to exceed one year. If, on or before the expiration of this
period, the court has not received competent proof presented at hearing
that the respondent is in full compliance with his or her support
obligation, the court shall cause the suspension of the order to be
rescinded and shall further cause such order to be served upon the
licensing entity.
(d) The provisions of subdivision (a) of this section shall not apply
to:
(i) respondents who are receiving public assistance or supplemental
security income; or
(ii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one-b of section two hundred forty of the
domestic relations law falls below the self-support reserve as defined
by subparagraph six of paragraph (b) of subdivision one-b of section two
hundred forty of the domestic relations law, or
(iii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one-b of section two hundred forty of the
domestic relations law remaining after the payment of the current
support obligation would fall below the self-support reserve as defined
by subparagraph six of paragraph (b) of subdivision one-b of section two
hundred forty of the domestic relations law.
(e) The court shall inform the respondent that competent proof for
purposes of proving payment to a licensing entity shall be a certified
check, notice issued by the court, or notice from a support collection
unit where the order is for payment to the support collection unit.
Child support proceedings and enforcement of arrears;
suspension of recreational license. (a) In any proceeding for
enforcement of a direction or agreement, incorporated in a judgement or
order, to pay any sum of money as child support or combined child and
spousal support, if the court is satisfied by competent proof that the
respondent has accumulated support arrears equivalent to or greater than
the amount of support due pursuant to such judgment or order for a
period of four months, the court may order any agency responsible for
the issuance of a recreational license to suspend or refuse to reissue a
license to the respondent, or deny application for such license by the
respondent. For purposes of determining whether a respondent has
accumulated support arrears equivalent to or greater than the amount of
support due for a period of four months, the amount of any retroactive
support, other than periodic payments of retroactive support which are
past due, shall not be included in the calculation of support arrears
pursuant to this section.
(b) If the respondent, after receiving appropriate notice, fails to
comply with a summons, subpoena, or warrant relating to a paternity or
child support proceeding, the court may order any agency responsible for
the issuance of a recreational license to suspend or to refuse to
reissue a license to the respondent or to deny application for such
license by the respondent. The court may subsequently order such agency
to terminate the adverse action regarding the respondent's license;
however, the court shall order the termination of such suspension or
other adverse action when the court is satisfied that the respondent has
fully complied with the requirements of all summons, subpoenas, and
warrants relating to a paternity or child support proceeding.
(c) The provisions of subdivision (a) of this section shall not apply
to:
(i) respondents who are receiving public assistance or supplemental
security income; or
(ii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one-b of section two hundred forty of the
domestic relations law falls below the self-support reserve as defined
by subparagraph six of paragraph (b) of subdivision one-b of section two
hundred forty of this article; or
(iii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one-b of section two hundred forty of this
article remaining after the payment of the current support obligation
would fall below the self-support reserve as defined by subparagraph six
of paragraph (b) of subdivision one-b of section two hundred forty of
this article.
Enforcement by contempt proceedings of judgment or order in
action for divorce, separation or annulment. Where a spouse, in an
action for divorce, separation, annulment or declaration of nullity of a
void marriage, or for the enforcement in this state of a judgment for
divorce, separation, annulment or declaration of nullity of a void
marriage rendered in another state, makes default in paying any sum of
money as required by the judgment or order directing the payment
thereof, the aggrieved spouse may make application pursuant to the
provisions of section seven hundred fifty-six of the judiciary law to
punish the defaulting spouse for contempt, and where the judgment or
order directs the payment to be made in installments, or at stated
intervals, failure to make such single payment or installment may be
punished as therein provided, and such punishment, either by fine or
commitment, shall not be a bar to a subsequent proceeding to punish the
defaulting spouse as for a contempt for failure to pay subsequent
installments, but for such purpose such spouse may be proceeded against
under the said order in the same manner and with the same effect as
though such installment payment was directed to be paid by a separate
and distinct order, and the provisions of the civil rights law are
hereby superseded so far as they are in conflict therewith. Such
application may also be made without any previous sequestration or
direction to give security or any application for enforcement by any
other means. No demand of any kind upon the defaulting spouse shall be
necessary in order that he or she be proceeded against and punished for
failure to make any such payment or to pay any such installment;
personal service upon the defaulting spouse of an uncertified copy of
the judgment or order under which the default has occurred shall be
sufficient.
Persons financially unable to comply with orders or judgments
directing the payment of alimony. 1. Any person who, by an order or
judgment made or entered in an action for divorce, separation, annulment
or declaration of the nullity of a void marriage or an action for the
enforcement in this state of a judgment for divorce, separation or
annulment or declaring the nullity of a void marriage rendered in
another state, is directed to make payment of any sum or sums of money
and against whom an order to punish for a contempt of court has been
made pursuant to the provisions of section two hundred forty-five of
this chapter or the judiciary law may, if financially unable to comply
with the order or judgment to make such payment, upon such notice to
such parties as the court may direct, make application to the court for
an order relieving him from such payment and such contempt order. The
court, upon the hearing of such application, if satisfied from the
proofs and evidence offered and submitted that the applicant is
financially unable to make such payment may, upon a showing of good
cause, until further order of the court, modify the order or judgment to
make such payment and relieve him from such contempt order. No such
modification shall reduce or annul unpaid sums or installments accrued
prior to the making of such application unless the defaulting party
shows good cause for failure to make application for relief from the
judgement or order directing such payment prior to the accrual of such
arrears. Such modification may increase such support nunc pro tunc
based on newly discovered evidence.
2. Whenever, upon application to the court by an interested party, it
appears to the satisfaction of the court that any person, who has been
relieved totally or partially from making any such payment pursuant to
the provisions of this section, is no longer financially unable to
comply with the order or judgment to make such payment, then the court
may, upon a showing of good cause, modify or revoke its order relieving
him totally or partially from making such payment.
3. Any person may assert his financial inability to comply with the
directions contained in an order or judgment made or entered in an
action for divorce, separation, annulment or declaration of the nullity
of a void marriage or an action for the enforcement in this state of a
judgment for divorce, separation or annulment or declaring the nullity
of a void marriage rendered in another state, as a defense in a
proceeding instituted against him under section two hundred forty-five
or under the judiciary law to punish him for his failure to comply with
such directions and, if the court, upon the hearing of such contempt
proceeding, is satisfied from the proofs and evidence offered and
submitted that the defendant is financially unable to comply with such
order or judgment, it may, in its discretion, until further order of the
court, make an order modifying such order or judgment and denying the
application to punish the defendant for contempt. No such modification
shall reduce or annul arrears accrued prior to the making of such
application unless the defaulting party shows good cause for failure to
make application for relief from the judgment or order directing such
payment prior to the accrual of such arrears. Such modification may
increase such support nunc pro tunc as of the date of the application
based on newly discovered evidence. Any retroactive amount of support
due shall be paid in one sum or periodic sums, as the court shall
direct, taking into account any amount of temporary support which has
been paid.
Alimony or maintenance payments suspended during confinement in
prison. Notwithstanding any inconsistent provision of this article, the
provision of any judgment or order rendered or made in an action for
divorce, separation, annulment or declaration of nullity of a void
marriage, requiring the payment of moneys by one spouse for the support
of the other shall be suspended and inoperative so far as punishment for
contempt is concerned during the period in which the defaulting spouse
shall be imprisoned pursuant to any order adjudging him or her in
contempt for failure to comply with any provision in such order.
Modification of judgment or order in action for divorce or
annulment. Where an action for divorce or for annulment or for a
declaration of the nullity of a void marriage is brought by a spouse,
and a final judgment of divorce or a final judgment annulling the
marriage or declaring its nullity has been rendered, the court, by order
upon the application of the payor on notice, and on proof of the
marriage of the payee after such final judgment, must modify such final
judgment and any orders made with respect thereto by annulling the
provisions of such final judgment or orders, or of both, directing
payments of money for the support of the payee. The court in its
discretion upon application of the payor on notice, upon proof that the
payee is habitually living with another person and holding himself or
herself out as the spouse of such other person, although not married to
such other person, may modify such final judgment and any orders made
with respect thereto by annulling the provisions of such final judgment
or orders or of both, directing payment of money for the support of such
payee.
Trial preferences in matrimonial actions. Upon motion of either
party or upon its own motion, the court may direct that any action or
proceeding brought (1) to annul a marriage or to declare the nullity of
a void marriage, or (2) for a separation, or (3) for a divorce, or (4)
to enjoin the prosecution in any other jurisdiction of an action for
divorce, be placed forthwith by the clerk on the supreme court calendar
and be entitled to preference in the trial thereof, in accordance with
Rule 3403 of the civil practice law and rules, provided that in the
courts' discretion, justice so requires. Such direction may be made by
separate order or in any order granted in any such action or proceeding
upon any application made pursuant to sections two hundred thirty-six,
two hundred thirty-seven or two hundred forty of this article.
Such direction, in the event no note of issue has been previously
filed with the clerk, may also require either party to file with the
clerk proof of service of the summons, two copies of the note of issue
and such other data as may be required.
Agreements relating to marriage; statute of limitations. 1. The
statute of limitations for commencing an action or proceeding or for
claiming a defense that arises from an agreement made pursuant to
subdivision three of part B of section two hundred thirty-six of this
article entered into (a) prior to a marriage or (b) during the marriage,
but prior to the service of process in a matrimonial action or
proceeding, shall be three years.
2. The statute of limitations shall be tolled until (a) process has
been served in such matrimonial action or proceeding, or (b) the death
of one of the parties.
3. The provisions of this section shall not apply to a separation
agreement or an agreement made during the pendency of a matrimonial
action or in settlement thereof.
Filing of order in family court. When, in a matrimonial action,
the supreme court refers the issues of support, custody or visitation to
the family court, the order or judgment shall provide that a copy
thereof shall be filed by the plaintiff's attorney, within ten days,
with the clerk of the family court therein specified.
Effect of pendency of action for divorce, separation or
annulment on petition for order of protection. 1. In an action for
divorce, separation or annulment or in an action to declare the nullity
of a void marriage in the supreme court, the supreme court or the family
court shall entertain an application for an order of protection or
temporary order of protection by either party. Such an order may require
any party:
(a) to stay away from the home, school, business or place of
employment of the child, other parent or any other party, and to stay
away from any other specific location designated by the court;
(b) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(c) to refrain from committing a family offense, as defined in
subdivision one of section 530.11 of the criminal procedure law, or any
criminal offense against such child or against the other parent or
against any person to whom custody of the child is awarded or from
harassing, intimidating or threatening such persons;
(d) to permit a designated party to enter the residence during a
specified period of time in order to remove personal belongings not in
issue in a proceeding or action under this chapter or the family court
act;
(e) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child;
(f) to pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by such
order if such order is issued or enforced;
(g) to refrain from intentionally injuring or killing, without
justification, any companion animal the respondent knows to be owned,
possessed, leased, kept or held by the person protected by the order or
a minor child residing in such person's household. "Companion animal,"
as used in this section, shall have the same meaning as in subdivision
five of section three hundred fifty of the agriculture and markets law;
(h) (1) to promptly return specified identification documents to the
protected party, in whose favor the order of protection or temporary
order of protection is issued; provided, however, that such order may:
(A) include any appropriate provision designed to ensure that any such
document is available for use as evidence in this proceeding, and
available if necessary for legitimate use by the party against whom such
order is issued; and (B) specify the manner in which such return shall
be accomplished.
(2) For purposes of this paragraph, "identification document" shall
mean any of the following: (A) exclusively in the name of the protected
party: birth certificate, passport, social security card, health
insurance or other benefits card, a card or document used to access
bank, credit or other financial accounts or records, tax returns, any
driver's license, and immigration documents including but not limited to
a United States permanent resident card and employment authorization
document; and (B) upon motion and after notice and an opportunity to be
heard, any of the following, including those that may reflect joint use
or ownership, that the court determines are necessary and are
appropriately transferred to the protected party: any card or document
used to access bank, credit or other financial accounts or records, tax
returns, and any other identifying cards and documents;
(i) (1) to refrain from remotely controlling any connected devices
affecting the home, vehicle or property of the person protected by the
order.
(2) For purposes of this paragraph, "connected device" shall mean any
device, or other physical object that is capable of connecting to the
internet, directly or indirectly, and that is assigned an internet
protocol address or bluetooth address; and
(j) to observe such other conditions as are necessary to further the
purposes of protection.
1-a. Translation and interpretation of orders of protection. The
office of court administration shall, in accordance with paragraph (t)
of subdivision two of section two hundred twelve of the judiciary law,
ensure that a court order of protection or temporary order of protection
is translated in writing into the appropriate language for a party to a
proceeding where the court has appointed an interpreter. The office of
court administration shall ensure that the standard language of the
office of court administration order of protection and temporary order
of protection forms shall be translated in writing in the languages most
frequently used in the courts of each judicial department in accordance
with paragraph (t) of subdivision two of section two hundred twelve of
the judiciary law. A copy of the written translation shall be given to
each party in the proceeding, along with the original order or temporary
order of protection issued in English. A copy of this written
translation shall also be included as part of the record of the
proceeding. The court shall read the essential terms and conditions of
the order aloud on the record and direct the court appointed interpreter
to interpret the same terms and conditions. Such written translation or
interpretation shall not affect the validity or enforceability of the
order. In every case a party to a proceeding shall be provided with an
English copy of any court order of protection or temporary order of
protection issued. The authority provided herein shall be in addition to
and shall not be deemed to diminish or reduce any rights of the parties
under existing law.
2. An order of protection entered pursuant to this subdivision shall
bear in a conspicuous manner, on the front page of said order, the
language "Order of protection issued pursuant to section two hundred
fifty-two of the domestic relations law". The order of protection shall
also contain the following notice: "This order of protection will remain
in effect even if the protected party has, or consents to have, contact
or communication with the party against whom the order is issued. This
order of protection can only be modified or terminated by the court. The
protected party cannot be held to violate this order nor be arrested for
violating this order.". The absence of such language shall not affect
the validity of such order. The presentation of a copy of such an order
to any peace officer acting pursuant to his or her special duties, or
police officer, shall constitute authority, for that officer to arrest a
person when that person has violated the terms of such an order, and
bring such person before the court and, otherwise, so far as lies within
the officer's power, to aid in securing the protection such order was
intended to afford.
2-a. If the court that issued an order of protection or temporary
order of protection under this section or warrant in connection thereto
is not in session when an arrest is made for an alleged violation of the
order or upon a warrant issued in connection with such violation, the
arrested person shall be brought before a local criminal court in the
county of arrest or in the county in which such warrant is returnable
pursuant to article one hundred twenty of the criminal procedure law and
arraigned by such court. Such local criminal court shall order the
commitment of the arrested person to the custody of the sheriff, admit
to, fix or accept bail, or release the arrested person on his or her
recognizance pending appearance in the court that issued the order of
protection, temporary order of protection or warrant. In making such
order, such local criminal court shall consider the bail
recommendations, if any, made by the supreme or family court as
indicated on the warrant or certificate of warrant. Unless the
petitioner or complainant requests otherwise, the court, in addition to
scheduling further criminal proceedings, if any, regarding such alleged
family offense or violation allegation, shall make such matter
returnable in the supreme or family court, as applicable, on the next
day such court is in session.
3. An order of protection entered pursuant to this subdivision may be
made in the final judgment in any matrimonial action, or by one or more
orders from time to time before or subsequent to final judgment, or by
both such order or orders and the final judgment. The order of
protection may remain in effect after entry of a final matrimonial
judgment and during the minority of any child whose custody or
visitation is the subject of a provision of a final judgment or any
order. An order of protection may be entered notwithstanding that the
court for any reason whatsoever, other than lack of jurisdiction,
refuses to grant the relief requested in the action or proceeding.
4. No order of protection may direct any party to observe conditions
of behavior unless: (i) the party requesting the order of protection has
served and filed an action, proceeding, counterclaim or written motion
and, (ii) the court has made a finding on the record that such party is
entitled to issuance of the order of protection which may result from a
judicial finding of fact, judicial acceptance of an admission by the
party against whom the order was issued or judicial finding that the
party against whom the order is issued has given knowing, intelligent
and voluntary consent to its issuance. The provisions of this
subdivision shall not preclude the court from issuing a temporary order
of protection upon the court's own motion or where a motion for such
relief is made to the court, for good cause shown.
5. Except with respect to enforcement pursuant to a criminal
prosecution under article two hundred fifteen of the penal law, the
supreme court may provide in an order made pursuant to this section that
the order may be enforced or modified only in the supreme court. If the
supreme court so provides, the family court may not entertain an
application to enforce or modify such an order of the supreme court.
6. In any such matrimonial action however, the court may not sua
sponte consolidate actions or make, vacate or modify orders of
protection issued in family court involving the same parties except upon
motion and with notice to the non-moving party. Such non-moving party
shall be given an opportunity to be heard.
7. A valid order of protection or temporary order of protection issued
by a court of competent jurisdiction in another state, territorial or
tribal jurisdiction shall be accorded full faith and credit and enforced
as if it were issued by a court within the state for as long as the
order remains in effect in the issuing jurisdiction in accordance with
sections two thousand two hundred sixty-five and two thousand two
hundred sixty-six of title eighteen of the United States Code.
(a) An order issued by a court of competent jurisdiction in another
state, territorial or tribal jurisdiction shall be deemed valid if:
(i) the issuing court had personal jurisdiction over the parties and
over the subject matter under the law of the issuing jurisdiction;
(ii) the person against whom the order was issued had reasonable
notice and an opportunity to be heard prior to issuance of the order;
provided, however, that if the order was a temporary order of protection
issued in the absence of such person, that notice had been given and
that an opportunity to be heard had been provided within a reasonable
period of time after the issuance of the order; and
(iii) in the case of orders of protection or temporary orders of
protection issued against both a petitioner and respondent, the order or
portion thereof sought to be enforced was supported by: (A) a pleading
requesting such order, including, but not limited to, a petition,
cross-petition or counterclaim; and (B) a judicial finding that the
requesting party is entitled to the issuance of the order, which may
result from a judicial finding of fact, judicial acceptance of an
admission by the party against whom the order was issued or judicial
finding that the party against whom the order was issued had given
knowing, intelligent and voluntary consent to its issuance.
(b) Notwithstanding the provisions of article fifty-four of the civil
practice law and rules, an order of protection or temporary order of
protection issued by a court of competent jurisdiction in another state,
territorial or tribal jurisdiction, accompanied by a sworn affidavit
that upon information and belief such order is in effect as written and
has not been vacated or modified, may be filed without fee with the
clerk of the court, who shall transmit information regarding such order
to the statewide registry of orders of protection and warrants
established pursuant to section two hundred twenty-one-a of the
executive law; provided, however, that such filing and registry entry
shall not be required for enforcement of the order.
8. Any party moving for a temporary order of protection pursuant to
this subdivision during hours when the court is open shall be entitled
to file such motion or pleading containing such prayer for emergency
relief on the same day that such person first appears at such court, and
a hearing on the motion or portion of the pleading requesting such
emergency relief shall be held on the same day or the next day that the
court is in session following the filing of such motion or pleading.
9. Upon issuance of an order of protection or temporary order of
protection or upon a violation of such order, the court shall make a
determination regarding the suspension and revocation of a license to
carry, possess, repair or dispose of a firearm or firearms,
ineligibility for such a license and the surrender of firearms in
accordance with sections eight hundred forty-two-a and eight hundred
forty-six-a of the family court act, as applicable. Upon issuance of an
order of protection pursuant to this section or upon a finding of a
violation thereof, the court also may direct payment of restitution in
an amount not to exceed ten thousand dollars in accordance with
subdivision (e) of section eight hundred forty-one of such act;
provided, however, that in no case shall an order of restitution be
issued where the court determines that the party against whom the order
would be issued has already compensated the injured party or where such
compensation is incorporated in a final judgment or settlement of the
action.
9-a. The protected party in whose favor the order of protection or
temporary order of protection is issued may not be held to violate an
order issued in his or her favor nor may such protected party be
arrested for violating such order.
10. All orders of protection and temporary orders of protection issued
pursuant to this section along with any associated papers that may be
served simultaneously shall be served in accordance with subdivision
three-a of section two hundred forty of this article.
Removal of barriers to remarriage. 1. This section applies only
to a marriage solemnized in this state or in any other jurisdiction by a
person specified in subdivision one of section eleven of this chapter.
2. Any party to a marriage defined in subdivision one of this section
who commences a proceeding to annul the marriage or for a divorce must
allege, in his or her verified complaint: (i) that, to the best of his
or her knowledge, that he or she has taken or that he or she will take,
prior to the entry of final judgment, all steps solely within his or her
power to remove any barrier to the defendant's remarriage following the
annulment or divorce; or (ii) that the defendant has waived in writing
the requirements of this subdivision.
3. No final judgment of annulment or divorce shall thereafter be
entered unless the plaintiff shall have filed and served a sworn
statement: (i) that, to the best of his or her knowledge, he or she has,
prior to the entry of such final judgment, taken all steps solely within
his or her power to remove all barriers to the defendant's remarriage
following the annulment or divorce; or (ii) that the defendant has
waived in writing the requirements of this subdivision.
4. In any action for divorce based on subdivisions five and six of
section one hundred seventy of this chapter in which the defendant
enters a general appearance and does not contest the requested relief,
no final judgment of annulment or divorce shall be entered unless both
parties shall have filed and served sworn statements: (i) that he or she
has, to the best of his or her knowledge, taken all steps solely within
his or her power to remove all barriers to the other party's remarriage
following the annulment or divorce; or (ii) that the other party has
waived in writing the requirements of this subdivision.
5. The writing attesting to any waiver of the requirements of
subdivision two, three or four of this section shall be filed with the
court prior to the entry of a final judgment of annulment or divorce.
6. As used in the sworn statements prescribed by this section "barrier
to remarriage" includes, without limitation, any religious or
conscientious restraint or inhibition, of which the party required to
make the verified statement is aware, that is imposed on a party to a
marriage, under the principles held by the clergyman or minister who has
solemnized the marriage, by reason of the other party's commission or
withholding of any voluntary act. Nothing in this section shall be
construed to require any party to consult with any clergyman or minister
to determine whether there exists any such religious or conscientious
restraint or inhibition. It shall not be deemed a "barrier to
remarriage" within the meaning of this section if the restraint or
inhibition cannot be removed by the party's voluntary act. Nor shall it
be deemed a "barrier to remarriage" if the party must incur expenses in
connection with removal of the restraint or inhibition and the other
party refuses to provide reasonable reimbursement for such expenses.
"All steps solely within his or her power" shall not be construed to
include application to a marriage tribunal or other similar organization
or agency of a religious denomination which has authority to annul or
dissolve a marriage under the rules of such denomination.
7. No final judgment of annulment or divorce shall be entered,
notwithstanding the filing of the plaintiff's sworn statement prescribed
by this section, if the clergyman or minister who has solemnized the
marriage certifies, in a sworn statement, that he or she has solemnized
the marriage and that, to his or her knowledge, the plaintiff has failed
to take all steps solely within his or her power to remove all barriers
to the defendant's remarriage following the annulment or divorce,
provided that the said clergyman or minister is alive and available and
competent to testify at the time when final judgment would be entered.
8. Any person who knowingly submits a false sworn statement under this
section shall be guilty of making an apparently sworn false statement in
the first degree and shall be punished in accordance with section 210.40
of the penal law.
9. Nothing in this section shall be construed to authorize any court
to inquire into or determine any ecclesiastical or religious issue. The
truth of any statement submitted pursuant to this section shall not be
the subject of any judicial inquiry, except as provided in subdivision
eight of this section.
Confidentiality. 1. Notwithstanding any other provision of
law, in any proceeding for custody, divorce, separation or annulment,
whether or not an order of protection or temporary order of protection
is sought or has been sought in the past, the court may, upon its own
motion or upon the motion of any party or the attorney for the child,
authorize any party or the child to keep his or her address confidential
from any adverse party or the child, as appropriate, in any pleadings or
other papers submitted to the court, where the court finds that the
disclosure of the address or other identifying information would pose an
unreasonable risk to the health or safety of a party or the child.
Pending such a finding, any address or other identifying information of
the child or party seeking confidentiality shall be safeguarded and
sealed in order to prevent its inadvertent or unauthorized use or
disclosure.
2. Notwithstanding any other provision of law, if a party or a child
has resided or resides in a residential program for victims of domestic
violence as defined in section four hundred fifty-nine-a of the social
services law, the present address of the party and the child and the
address of the residential program for victims of domestic violence
shall not be revealed.
3. Upon authorization as provided in subdivision one of this section,
the identifying information shall be sealed and shall not be disclosed
in any pleading or other document filed in a proceeding under this
article. The court shall designate the clerk of the court or such other
disinterested person as it deems appropriate, with consent of such
disinterested person, as the agent for service of process for the party
whose address is to remain confidential and shall notify the adverse
party of such designation in writing. The clerk or disinterested person
designated by the court shall, when served with process or other papers
on behalf of the party whose address is to remain confidential, promptly
notify such party whose address is to remain confidential and forward
such process or papers to him or her.
4. In any case in which such a confidentiality authorization is made,
the party whose address is to remain confidential shall inform the clerk
of the court or disinterested person designated by the court of any
change in address for purposes of receipt of service or process or any
papers.
Prerequisites for judgments under articles nine, ten and eleven
of this chapter; health care coverage. A court, prior to signing a
judgment of divorce or separation, or a judgment annulling a marriage or
declaring the nullity of a void marriage, shall ensure that:
1. Both parties have been notified, at such time and by such means as
the court shall determine, that once the judgment is signed, a party
thereto may or may not be eligible to be covered under the other party's
health insurance plan, depending on the terms of the plan. Provided,
however, service upon the defendant, simultaneous with the service of
the summons, of a notice indicating that once the judgment is signed, a
party thereto may or may not be eligible to be covered under the other
party's health insurance plan, depending on the terms of the plan, shall
be deemed sufficient notice to a defaulting defendant.
2. If the parties have entered into a stipulation of
settlement/agreement on or after the effective date of this section
resolving all of the issues between the parties, such
settlement/agreement entered into between the parties shall contain a
provision relating to the health care coverage of each party; and that
such provision shall either: (a) provide for the future coverage of each
party, or (b) state that each party is aware that he or she will no
longer be covered by the other party's health insurance plan and that
each party shall be responsible for his or her own health insurance
coverage, and may be entitled to purchase health insurance on his or her
own through a COBRA option, if available. The requirements of this
subdivision shall not be waived by either party or counsel and, in the
event it is not complied with, the court shall require compliance and
may grant a thirty day continuance to afford the parties an opportunity
to procure their own health insurance coverage.
ARTICLE 15 Laws Repealed; When to Take Effect
Laws repealed. Of the laws enumerated in the schedule hereto
annexed, that portion specified in the last column is hereby repealed.
When to take effect. This chapter shall take effect
immediately.
References in this chapter. Whenever in this chapter any
reference is made to the children's court act of the State of New York,
the children's court or a judge thereof, or to the domestic relations
court act of the city of New York, the domestic relations court of the
city of New York or a justice thereof, such reference shall, on and
after the effective date of legislation implementing the establishment
of the family court, the officers thereof, and prescribing its powers
and duties, be deemed to refer, respectively, to such legislation, the
family court or a judge thereof, as the case may be, to the extent that
such references may be made applicable.