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This entry was published on 2014-09-22
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SECTION 5242
Income deduction order for support enforcement
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 52
§ 5242. Income deduction order for support enforcement. (a) Upon
application of a creditor, for good cause shown, and upon such terms as
justice may require, the court may correct any defect, irregularity,
error or omission in an income execution for support enforcement issued
pursuant to section 5241 of this article.

(b) Upon application of a creditor, for good cause shown, the court
may enter an income deduction order for support enforcement. In
determining good cause, the court may take into consideration evidence
of the degree of such debtor's past financial responsibility, credit
references, credit history, and any other matter the court considers
relevant in determining the likelihood of payment in accordance with the
order of support. Proof of default establishes a prima facie case
against the debtor, which can be overcome only by proof of the debtor's
inability to make the payments. Unless the prima facie case is overcome,
the court shall enter an income deduction order for support enforcement
pursuant to this section.

(c) When the court enters an order of 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, or registers pursuant to article five-B of the family court act an
order of support which has been issued by a foreign jurisdiction and
which is not to be enforced pursuant to title six-A of article three of
the social services law, where the court determines that the debtor has
income that could be subject to an income deduction order, the court
shall issue an income deduction order to obtain payment of the order at
the same time it issues or registers the order. 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
subdivision, 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. 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 subdivision, the court shall state expressly in the order of
support the basis for its decision.

(d) In entering the income deduction order, the court shall use the
form for income withholding promulgated by the office of temporary and
disability assistance for this purpose, which form shall include the
necessary information and directions to ensure the characterization of
the income deduction order as an income withholding notice as described
and required by subsection (b) of section six hundred sixty-six of title
forty-two of the United States Code; provided, however, that where the
court enters an order for spousal support only, an alternate spousal
support form for income withholding promulgated by the office of
temporary and disability assistance may be used but is not required. The
court shall serve or cause to be served a copy of the income deduction
order on the employer or income payor and transmit copies of such order
to the parties; and, in addition, where the income deduction order is
for child support or combined child and spousal support, to the state
disbursement unit established in this state in accordance with section
six hundred fifty-four-b of title forty-two of the United States Code.

(e) An employer or income payor served with an income deduction order
entered pursuant to this section shall commence deductions from the
income due or thereafter due to the debtor no later than the first pay
period that occurs fourteen days after service of the income deduction
order, and shall make payments payable to and remit such payments to the
state disbursement unit if the deductions are for child or combined
child and spousal support, or to the creditor if the deductions are for
spousal support only, within seven business days of the date that the
debtor is paid. Each payment remitted by the employer or income payor
shall include the information as instructed on the income deduction
order. The amount remitted by the employer or income payor shall be as
set forth in the income deduction order including the additional amount
that shall be ordered by the court and applied to the reduction of
arrears, if any, unless such deduction is otherwise limited by
subdivision (f) of this section.

(f) An employer or income payor shall be liable to the creditor for
failure to deduct the amounts specified in the income deduction order,
provided however that deduction by the employer or income payor of the
amounts specified shall not relieve the debtor of the underlying
obligation of support. If an employer or income payor shall fail to so
pay the state disbursement unit or, if a spousal support only payment
the creditor, the creditor may commence a proceeding against the
employer or income payor for accrued deductions, together with interest
and reasonable attorney's fees. If the debtor's employment is terminated
by resignation or dismissal at any time after service of the income
deduction order, the order shall cease to have force and effect unless
the debtor is reinstated or re-employed within ninety days after such
termination. An employer must notify the issuer promptly when the debtor
terminates employment and must provide the debtor's last address and the
name and address of the debtor's new employer, if known. An income payor
must notify the issuer when the debtor no longer receives income and
must provide the debtor's last address and the name and address of the
debtor's new employer, if known. Where the income is compensation paid
or payable to the debtor for personal services, the amount withheld by
the employer shall not exceed the following:

(i) Where the debtor currently is supporting a spouse or dependent
child other than the creditor's dependent child, the amount withheld
shall not exceed fifty percent of the earnings of the debtor remaining
after the deduction therefrom of any amounts required by law to be
withheld ("disposable earnings"), except that if any part of the
deduction is to be applied to the reduction of arrears which shall have
accrued more than twelve weeks prior to the beginning of the week for
which such earnings are payable, the amount withheld shall not exceed
fifty-five percent of disposable earnings.

(ii) Where the debtor currently is not supporting a spouse or
dependent child other than the creditor's dependent child, the amount
withheld shall not exceed sixty percent of the earnings of the debtor
remaining after the deduction therefrom of any amounts required by law
to be withheld ("disposable earnings"), except that if any part of the
deduction is to be applied to the reduction of arrears which shall have
accrued more than twelve weeks prior to the beginning of the week for
which such earnings are payable, the amount withheld shall not exceed
sixty-five percent of disposable earnings.

(g) An order pursuant to this section shall take priority over any
other assignment, levy or process. If an employer or income payor is
served with more than one income deduction order pertaining to a single
employee pursuant to this section, or with an order issued pursuant to
this section and also an execution pursuant to section 5241 of this
article, and if the combined total amount of the income to be withheld
exceeds the limits set forth in subdivision (f) of this section, the
employer or income payor shall withhold the maximum amount permitted
thereby and pay to each creditor that proportion thereof which such
creditor's claim bears to the combined total.

(h) An employer or income payor shall be liable to the creditor for
failure to deduct the amounts specified, provided however that deduction
of the amounts specified by the employer or income payor shall not
relieve the debtor of the underlying obligation of support.

(i) A creditor shall not be required to issue process under section
5241 of this article prior to obtaining relief pursuant to this section.