S T A T E   O F   N E W   Y O R K
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                                  8178

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               May 6, 2009
                               ___________

Introduced  by M. of A. AUBRY -- read once and referred to the Committee
  on Judiciary

AN ACT to amend the domestic relations law and the family court act,  in
  relation to allowing modification of child support orders or judgments
  for persons whose income has been reduced due to incarceration

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph b of subdivision 9 of part B of  section  236  of
the  domestic  relations  law,  as amended by chapter 354 of the laws of
1993, is amended to read as follows:
  b. Upon application by either party, the court may annul or modify any
prior order or judgment as to maintenance or child support, upon a show-
ing of the recipient's inability to be self-supporting or a  substantial
change  in circumstance or termination of child support awarded pursuant
to section two hundred forty of this article, including financial  hard-
ship.    FOR THE PURPOSES OF MODIFICATION OF ANY PRIOR ORDER OR JUDGMENT
OF CHILD SUPPORT, THE COURT MAY, IN ITS DISCRETION, CONSIDER A REDUCTION
IN INCOME DUE TO INCARCERATION TO BE A  SUBSTANTIAL  CHANGE  IN  CIRCUM-
STANCES PROVIDED SUCH INCARCERATION IS NOT THE RESULT OF THE NON-PAYMENT
OF  CHILD  SUPPORT  OR  AN OFFENSE AGAINST THE CUSTODIAL PARENT OR CHILD
WHICH IS THE SUBJECT OF THE ORDER OR JUDGMENT. Where, after  the  effec-
tive  date  of  this  part,  a  separation agreement remains in force no
modification of a prior 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 judg-
ment for such period of time and under such circumstances as  the  court
determines.  Provided,  however, that 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. 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 [chapter] ARTICLE.   No other
arrears of maintenance which have accrued prior to the  making  of  such

              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11423-01-9

A. 8178                             2

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 or child support nunc pro tunc as
of the date of application  based  on  newly  discovered  evidence.  Any
retroactive amount of maintenance, or child support 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.  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 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 retroac-
tive support. The provisions of this subdivision shall not  apply  to  a
separation agreement made prior to the effective date of this part.
  S 2. Section 451 of the family court act, as amended by chapter 533 of
the laws of 1999, is amended to read as follows:
  S  451.  Continuing jurisdiction. Except as provided in article five-B
of this act, the court has  continuing  jurisdiction  over  any  support
proceeding  brought  under this article until its judgment is completely
satisfied and may modify, set aside or vacate any order  issued  in  the
course  of the proceeding, provided, however, that the modification, set
aside or vacatur shall not reduce or annul child support arrears accrued
prior to the making of an application pursuant to this section.  FOR THE
PURPOSES OF MODIFICATION  OF  ANY  PRIOR  ORDER  OR  JUDGMENT  OF  CHILD
SUPPORT,  THE  COURT  MAY,  IN  ITS  DISCRETION, CONSIDER A REDUCTION IN
INCOME DUE TO INCARCERATION TO BE A SUBSTANTIAL CHANGE IN  CIRCUMSTANCES
PROVIDED  SUCH  INCARCERATION  IS  NOT  THE RESULT OF THE NON-PAYMENT OF
CHILD SUPPORT OR AN OFFENSE AGAINST THE CUSTODIAL PARENT OR CHILD  WHICH
IS  THE  SUBJECT OF THE ORDER OR JUDGMENT. The court shall not reduce or
annul any other arrears unless the defaulting party shows good cause for
failure to make application  for  relief  from  the  judgment  or  order
directing payment prior to the accrual of the arrears, in which case the
facts  and circumstances constituting such good cause shall be set forth
in a written memorandum of decision. A modification may increase support
payments nunc pro tunc as of the date of  the  initial  application  for
support  based  on  newly discovered evidence. Any retroactive amount of
support due shall be paid in one lump sum or periodic sums, as the court
directs, taking into account any amount of support which has been  paid.
Upon  an application to modify, set aside or vacate an order of support,
no hearing shall be required unless such application shall be  supported
by  affidavit  and  other evidentiary material sufficient to establish a
prima facie case for the relief requested.
  S 3. This act shall take effect immediately.