S T A T E O F N E W Y O R K
________________________________________________________________________
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.