N.Y. Dom. Rel. Law § 236

NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p DRL § 236 Special controlling provisions; prior actions or proceedings;new actions or proceedings ARTICLE 13 Provisions Applicable to More Than One Type of Matrimonial Action § 236. Special controlling provisions; prior actions or proceedings;new actions or proceedings. Except as otherwise expressly provided inthis section, the provisions of part A shall be controlling with respectto any action or proceeding commenced prior to the date on which theprovisions of this section as amended become effective and theprovisions of part B shall be controlling with respect to any action orproceeding commenced on or after such effective date. Any reference tothis section or the provisions hereof in any action, proceeding,judgment, order, rule or agreement shall be deemed and construed torefer to either the provisions of part A or part B respectively andexclusively, determined as provided in this paragraph any inconsistentprovision of law notwithstanding. PART A PRIOR ACTIONS OR PROCEEDINGSAlimony, temporary and permanent. 1. Alimony. In any action orproceeding brought (1) during the lifetime of both parties to themarriage 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 directeither spouse to provide suitably for the support of the other as, inthe court's discretion, justice requires, having regard to the length oftime of the marriage, the ability of each spouse to be self supporting,the circumstances of the case and of the respective parties. Suchdirection may require the payment of a sum or sums of money eitherdirectly to either spouse or to third persons for real and personalproperty and services furnished to either spouse, or for the rental ofor mortgage amortization or interest payments, insurance, taxes, repairsor other carrying charges on premises occupied b npersonalproperty and services furnished to either spouse, or for the rental ofor mortgage amortization or interest payments, insurance, taxes, repairsor other carrying charges on premises occupied by either spouse, or forboth payments to either spouse and to such third persons. Such directionshall be effective as of the date of the application therefor, and anyretroactive amount of alimony due shall be paid in one sum or periodicsums, as the court shall direct, taking into account any amount oftemporary alimony which has been paid. Such direction may be made in thefinal judgment in such action or proceeding, or by one or more ordersfrom time to time before or subsequent to final judgment, or by bothsuch order or orders and the final judgment. Such direction may be madenotwithstanding that the parties continue to reside in the same abodeand notwithstanding that the court refuses to grant the relief requestedby either spouse (1) by reason of a finding by the court that a divorce,annulment or judgment declaring the marriage a nullity had previouslybeen granted to either spouse in an action in which jurisdiction overthe person of the other spouse was not obtained, or (2) by reason of themisconduct of the other spouse, unless such misconduct would itselfconstitute grounds for separation or divorce, or (3) by reason of afailure of proof of the grounds of either spouse's action orcounterclaim. Any order or judgment made as in this section provided maycombine in one lump sum any amount payable to either spouse under thissection with any amount payable to either spouse under section twohundred forty of this chapter. Upon the application of either spouse,upon such notice to the other party and given in such manner as thecourt shall direct, the court may annul or modify any such direction,whether made by order or by final judgment, or in case no such directionshall have been made in the final judgment may, with respect to anyjudgment of annulment or Sour r modify any such direction,whether made by order or by final judgment, or in case no such directionshall have been made in the final judgment may, with respect to anyjudgment of annulment or Source: NYSenate.gov Open Legislation | Laws of New York Page 1 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p declaring the nullity of a void marriagerendered on or after September first, nineteen hundred forty or anyjudgment of separation or divorce whenever rendered, amend the judgmentby inserting such direction. Subject to the provisions of section twohundred forty-four of this chapter, no such modification or annulmentshall reduce or annul arrears accrued prior to the making of suchapplication unless the defaulting party shows good cause for failure tomake application for relief from the judgment or order directing suchpayment prior to the accrual of such arrears. Such modification mayincrease such support nunc pro tunc based on newly discovered evidence.2. Compulsory financial disclosure. In all matrimonial actions andproceedings commenced on or after September first, nineteen hundredseventy-five in supreme court in which alimony, maintenance or supportis in issue and all support proceedings in family court, there shall becompulsory disclosure by both parties of their respective financialstates. No showing of special circumstances shall be required beforesuch disclosure is ordered. A sworn statement of net worth shall beprovided upon receipt of a notice in writing demanding the same, withintwenty days after the receipt thereof. In the event said statement isnot demanded, it shall be filed by each party, within ten days afterjoinder of issue, in the court in which the procedure is pending. Asused in this section, the term net worth shall mean the amount by whichtotal assets including income exceed total liabilities including fixedfinancial obligations. It shall include all income ing. Asused in this section, the term net worth shall mean the amount by whichtotal assets including income exceed total liabilities including fixedfinancial obligations. It shall include all income and assets ofwhatsoever kind and nature and wherever situated and shall include alist of all assets transferred in any manner during the preceding threeyears, or the length of the marriage, whichever is shorter; provided,however that transfers in the routine course of business which resultedin an exchange of assets of substantially equivalent value need not bespecifically disclosed where such assets are otherwise identified in thestatement of net worth. Noncompliance shall be punishable by any or allof the penalties prescribed in section thirty-one hundred twenty-six ofthe civil practice law and rules, in examination before or during trial. PART B NEW ACTIONS OR PROCEEDINGSMaintenance and distributive award. 1. Definitions. Whenever used inthis part, the following terms shall have the respective meaningshereinafter set forth or indicated:a. The term "maintenance" shall mean payments provided for in a validagreement between the parties or awarded by the court in accordance withthe provisions of subdivisions five-a and six of this part, to be paidat fixed intervals for a definite or indefinite period of time, but anaward of maintenance shall terminate upon the death of either party orupon the payee's valid or invalid marriage, or upon modificationpursuant to paragraph b of subdivision nine of this part or section twohundred forty-eight of this chapter.b. The term "distributive award" shall mean payments provided for in avalid agreement between the parties or awarded by the court, in lieu ofor to supplement, facilitate or effectuate the division or distributionof property where authorized in a matrimonial action, and payable eitherin a lump sum or over a period of time in fixed amounts. Distributiveawards shall not include payments which are treated as ionof property where authorized in a matrimonial action, and payable eitherin a lump sum or over a period of time in fixed amounts. Distributiveawards shall not include payments which are treated as ordinary incometo the recipient under the provisions of the United States InternalRevenue Code.c. The term "marital property" shall mean all property acquired byeither or both spouses during the marriage and before the execution of aseparation agreement or the commencement of a matrimonial action,regardless of the form in which title is held, except as otherwiseprovided in agreement pursuant to subdivision three of this part.Marital property shall not include separate property as hereinafterdefined.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 ofseparate property, except to the extent that such appreciation is due inpart to the contributions or efforts of the other spouse;(4) property described as separate property by written agreement ofthe parties pursuant to subdivision three of this part.e. The term "custodial parent" shall mean a parent to whom custody ofa child or children is granted by a valid agreement between the partiesor by an order or decree of a court.f. The term "child support" shall mean a sum paid pursuant to courtorder or decree by either or both parents or pursuant to a validagreement between the parties for care, maintenance and education of anyunemancipated child under the age of twenty-one years.2. Matrimonial actions. a. Except as provided in subdivision five ofthis part, the provisions of this part shall be applicable to actionsfor an annulment or dissolution of a marriage, for a divorce, Source: NYSenate.gov Open Legislation | Laws of New York Page 2 --- NEW YORK DOMESTIC RELATIONS LAW ( be applicable to actionsfor an annulment or dissolution of a marriage, for a divorce, Source: NYSenate.gov Open Legislation | Laws of New York Page 2 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p for aseparation, for a declaration of the nullity of a void marriage, for adeclaration of the validity or nullity of a foreign judgment of divorce,for a declaration of the validity or nullity of a marriage, and toproceedings to obtain maintenance or a distribution of marital propertyfollowing a foreign judgment of divorce, commenced on and after theeffective date of this part. Any application which seeks a modificationof a judgment, order or decree made in an action commenced prior to theeffective date of this part shall be heard and determined in accordancewith the provisions of part A of this section.b. With respect to matrimonial actions which commence on or after theeffective date of this paragraph, the plaintiff shall cause to be servedupon the defendant, simultaneous with the service of the summons, a copyof the automatic orders set forth in this paragraph. The automaticorders shall take effect and be binding upon the plaintiff in amatrimonial action immediately upon the filing of the summons, orsummons and complaint, and shall be binding upon the defendantimmediately upon the service of the automatic orders with the summons.Each automatic order shall remain in full force and effect until thejudgment of divorce is entered or the action is dismissed, discontinuedor stayed, whichever shall occur first, unless the order is terminated,modified or amended by further order of the court upon motion of eitherof the parties or upon written agreement between the parties dulyexecuted 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 partyin writing, o knowledged. 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 partyin writing, or by order of the court, any property (including, but notlimited to, real estate, personal property, cash accounts, stocks,mutual funds, bank accounts, cars and boats) individually or jointlyheld by the parties, except in the usual course of business, forcustomary and usual household expenses or for reasonable attorney's feesin connection with this action.(2) Neither party shall transfer, encumber, assign, remove, withdrawor in any way dispose of any tax deferred funds, stocks or other assetsheld in any individual retirement accounts, 401K accounts, profitsharing plans, Keogh accounts, or any other pension or retirementaccount, and the parties shall further refrain from applying for orrequesting the payment of retirement benefits or annuity payments of anykind, without the consent of the other party in writing, or upon furtherorder of the court; except that any party who is already in pay statusmay 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 bythe family residence, further encumbrancing any assets, or unreasonablyusing credit cards or cash advances against credit cards, except in theusual 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 themarriage to be removed from any existing medical, hospital and dentalinsurance 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 lifeinsurance policies, and each party shall maintain the existing lifei spital and dental insurance coverage in full force and effect.(5) Neither party shall change the beneficiaries of any existing lifeinsurance policies, and each party shall maintain the existing lifeinsurance, automobile insurance, homeowners and renters insurancepolicies 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 astay in bankruptcy, that could adversely affect the marital estate, thatparty shall, within ten days after receiving such notice, send writtennotice of such event to the other party.3. Agreement of the parties. An agreement by the parties, made beforeor during the marriage, shall be valid and enforceable in a matrimonialaction if such agreement is in writing, subscribed by the parties, andacknowledged or proven in the manner required to entitle a deed to berecorded. Notwithstanding any other provision of law, an acknowledgmentof an agreement made before marriage may be executed before any personauthorized to solemnize a marriage pursuant to subdivisions one, two andthree of section eleven of this chapter. Such an agreement may include(1) a contract to make a testamentary provision of any kind, or a waiverof any right to elect against the provisions of a will; (2) provisionfor the ownership, division or distribution of separate and maritalproperty; (3) provision for the amount and duration of maintenance orother terms and conditions of the marriage relationship, subject to theprovisions of section 5-311 of the general obligations law, and providedthat such terms were fair and reasonable at the time of the making ofthe agreement and are not unconscionable at the time of entry of finaljudgment; and Source: NYSenate.gov Open Legislation | Laws of New York Page 3 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p (4) provision for the custody, care, educatio ation | Laws of New York Page 3 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p (4) provision for the custody, care, education andmaintenance of any child of the parties, subject to the provisions ofsection two hundred forty of this article. Nothing in this subdivisionshall be deemed to affect the validity of any agreement made prior tothe effective date of this subdivision.4. Compulsory financial disclosure. a. In all matrimonial actions andproceedings in which alimony, maintenance or support is in issue, thereshall be compulsory disclosure by both parties of their respectivefinancial states. No showing of special circumstances shall be requiredbefore such disclosure is ordered. A sworn statement of net worth shallbe provided upon receipt of a notice in writing demanding the same,within twenty days after the receipt thereof. In the event saidstatement is not demanded, it shall be filed with the clerk of the courtby each party, within ten days after joinder of issue, in the court inwhich the proceeding is pending. As used in this part, the term "networth" shall mean the amount by which total assets including incomeexceed total liabilities including fixed financial obligations. It shallinclude all income and assets of whatsoever kind and nature and whereversituated and shall include a list of all assets transferred in anymanner during the preceding three years, or the length of the marriage,whichever is shorter; provided, however that transfers in the routinecourse of business which resulted in an exchange of assets ofsubstantially equivalent value need not be specifically disclosed wheresuch assets are otherwise identified in the statement of net worth. Allsuch sworn statements of net worth shall be accompanied by a current andrepresentative paycheck stub and the most recently filed state andfederal income tax returns including a copy of the W-2(s) wage and taxstatement(s) s net worth shall be accompanied by a current andrepresentative paycheck stub and the most recently filed state andfederal income tax returns including a copy of the W-2(s) wage and taxstatement(s) submitted with the returns. In addition, both parties shallprovide information relating to any and all group health plans availableto them for the provision of care or other medical benefits by insuranceor otherwise for the benefit of the child or children for whom supportis sought, including all such information as may be required to beincluded in a qualified medical child support order as defined insection six hundred nine of the employee retirement income security actof 1974 (29 USC 1169) including, but not limited to: (i) the name andlast known mailing address of each party and of each dependent to becovered by the order; (ii) the identification and a description of eachgroup health plan available for the benefit or coverage of thedisclosing party and the child or children for whom support is sought;(iii) a detailed description of the type of coverage available from eachgroup health plan for the potential benefit of each such dependent; (iv)the identification of the plan administrator for each such group healthplan and the address of such administrator; (v) the identificationnumbers for each such group health plan; and (vi) such other informationas may be required by the court. Noncompliance shall be punishable byany or all of the penalties prescribed in section thirty-one hundredtwenty-six of the civil practice law and rules, in examination before orduring trial.b. As soon as practicable after a matrimonial action has beencommenced, the court shall set the date or dates the parties shall usefor the valuation of each asset. The valuation date or dates may beanytime from the date of commencement of the action to the date oftrial.5. Disposition of property in certain matrimonial actions. a. Exceptwhere the parties have provided in an agreement for the beanytime from the date of commencement of the action to the date oftrial.5. Disposition of property in certain matrimonial actions. a. Exceptwhere the parties have provided in an agreement for the disposition oftheir property pursuant to subdivision three of this part, the court, inan action wherein all or part of the relief granted is divorce, or thedissolution, annulment or declaration of the nullity of a marriage, andin proceedings to obtain a distribution of marital property following aforeign judgment of divorce, shall determine the respective rights ofthe parties in their separate or marital property, and shall provide forthe disposition thereof in the final judgment.b. Separate property shall remain such.c. Marital property shall be distributed equitably between theparties, considering the circumstances of the case and of the respectiveparties.d. In determining an equitable disposition of property under paragraphc, the court shall consider:(1) the income and property of each party at the time of marriage, andat the time of the commencement of the action;(2) the duration of the marriage and the age and health of bothparties;(3) the need of a custodial parent to occupy or own the maritalresidence and to use or own its household effects;(4) the loss of inheritance and pension rights upon dissolution of themarriage as of the date of dissolution;(5) the loss of health insurance benefits upon dissolution of themarriage;(6) any award of maintenance under subdivision six of this part;(7) any equitable claim to, interest in, or direct or indirectcontribution made to the acquisition of such marital property by theparty not having title, including joint Source: NYSenate.gov Open Legislation | Laws of New York Page 4 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p efforts or expenditures andcontributions and services as a spouse, parent, wage earner andhomemaker, and to the car S LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p efforts or expenditures andcontributions and services as a spouse, parent, wage earner andhomemaker, and to the career or career potential of the other party. Thecourt shall not consider as marital property subject to distribution thevalue of a spouse's enhanced earning capacity arising from a license,degree, celebrity goodwill, or career enhancement. However, in arrivingat an equitable division of marital property, the court shall considerthe direct or indirect contributions to the development during themarriage 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 assetor any interest in a business, corporation or profession, and theeconomic desirability of retaining such asset or interest intact andfree 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 amatrimonial action without fair consideration;(14) whether either party has committed an act or acts of domesticviolence, as described in subdivision one of section four hundredfifty-nine-a of the social services law, against the other party and thenature, extent, duration and impact of such act or acts;(15) in awarding the possession of a companion animal, the court shallconsider the best interest of such animal. "Companion animal", as usedin this subparagraph, shall have the same meaning as in subdivision fiveof section three hundred fifty of the agriculture and markets law; and(16) any other factor which the court shall expressly find to be justand proper.e. In any action in which the court shall determine that an equitabledistribution is appropriate but would be impractic 16) any other factor which the court shall expressly find to be justand proper.e. In any action in which the court shall determine that an equitabledistribution is appropriate but would be impractical or burdensome orwhere the distribution of an interest in a business, corporation orprofession would be contrary to law, the court in lieu of such equitabledistribution shall make a distributive award in order to achieve equitybetween the parties. The court in its discretion, also may make adistributive award to supplement, facilitate or effectuate adistribution of marital property.f. In addition to the disposition of property as set forth above, thecourt may make such order regarding the use and occupancy of the maritalhome and its household effects as provided in section two hundredthirty-four of this chapter, without regard to the form of ownership ofsuch property.g. In any decision made pursuant to this subdivision, the court shallset forth the factors it considered and the reasons for its decision andsuch 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, asdefined in subdivision six of section two hundred fifty-three of thisarticle, on the factors enumerated in paragraph d of this subdivision.5-a. Temporary maintenance awards. a. Except where the parties haveentered into an agreement providing for maintenance pursuant tosubdivision three of this part, in any matrimonial action the court,upon application by a party, shall make its award for temporarymaintenance pursuant to the provisions of this subdivision.b. For purposes of this subdivision, the following definitions shallbe 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 ofmarriage until the date of commencement of action.(4) "Inco higher income.(2) "Payee" shall mean the spouse with the lower income.(3) "Length of marriage" shall mean the period from the date ofmarriage until the date of commencement of action.(4) "Income" shall mean income as defined in the child supportstandards act and codified in section two hundred forty of this articleand section four hundred thirteen of the family court act withoutsubtracting alimony or maintenance actually paid or to be paid to aspouse that is a party to the instant action pursuant to subclause (C)of clause (vii) of subparagraph five of paragraph (b) of subdivisionone-b of section two hundred forty of this article and subclause (C) ofclause (vii) of subparagraph five of paragraph (b) of subdivision one ofsection four hundred thirteen of the family court act and withoutsubtracting spousal support paid pursuant to section four hundred twelveof such act.(5) "Income cap" shall mean up to and including one hundredeighty-four thousand dollars of the payor's annual income; provided,however, beginning March first, two thousand twenty and every two yearsthereafter, the income cap amount shall increase by the sum of theaverage annual percentage changes in the consumer price index for allurban consumers (CPI-U) as published by the United States department oflabor bureau of labor statistics for the prior two years multiplied bythe then income cap and then rounded to the nearest one thousanddollars. The office of court administration shall determine and publishthe income cap.(6) "Guideline amount of temporary maintenance" shall mean the Source: NYSenate.gov Open Legislation | Laws of New York Page 5 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p dollaramount derived by the application of paragraph c or d of thissubdivision.(7) "Self-support reserve" shall mean the self-support reserve asdefined in the child support standards act and codified in section twohu d by the application of paragraph c or d of thissubdivision.(7) "Self-support reserve" shall mean the self-support reserve asdefined in the child support standards act and codified in section twohundred forty of this article and section four hundred thirteen of thefamily court act.(8) "Agreement" shall have the same meaning as provided in subdivisionthree 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 maintenanceas follows:(1) Where child support will be paid for children of the marriage andwhere the payor as defined in this subdivision is also the non-custodialparent pursuant to the child support standards act:(a) the court shall subtract twenty-five percent of the payee's incomefrom twenty percent of the payor's income.(b) the court shall then multiply the sum of the payor's income andthe payee's income by forty percent.(c) the court shall subtract the payee's income from the amountderived from clause (b) of this subparagraph.(d) the court shall determine the lower of the two amounts derived byclauses (a) and (c) of this subparagraph.(e) the guideline amount of temporary maintenance shall be the amountdetermined by clause (d) of this subparagraph except that, if the amountdetermined by clause (d) of this subparagraph is less than or equal tozero, the guideline amount of temporary maintenance shall be zerodollars.(f) temporary maintenance shall be calculated prior to child supportbecause the amount of temporary maintenance shall be subtracted from thepayor's income and added to the payee's income as part of thecalculation 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 thepayor as defined in this subdivision is the custodial parent pursuant tothe child support standards act:(a) the court shall subtract twenty percent of the pa paid for children of the marriage but thepayor as defined in this subdivision is the custodial parent pursuant tothe child support standards act:(a) the court shall subtract twenty percent of the payee's income fromthirty percent of the payor's income.(b) the court shall then multiply the sum of the payor's income andthe payee's income by forty percent.(c) the court shall subtract the payee's income from the amountderived from clause (b) of this subparagraph.(d) the court shall determine the lower of the two amounts derived byclauses (a) and (c) of this subparagraph.(e) the guideline amount of temporary maintenance shall be the amountdetermined by clause (d) of this subparagraph except that, if the amountdetermined by clause (d) of this subparagraph is less than or equal tozero, the guideline amount of temporary maintenance shall be zerodollars.(f) if child support will be paid for children of the marriage but thepayor as defined in this subdivision is the custodial parent pursuant tothe child support standards act, temporary maintenance shall becalculated prior to child support because the amount of temporarymaintenance shall be subtracted from the payor's income pursuant to thissubdivision and added to the payee's income pursuant to this subdivisionas part of the calculation of the child support obligation.d. Where the payor's income exceeds the income cap, the court shalldetermine the guideline amount of temporary maintenance as follows:(1) the court shall perform the calculations set forth in paragraph cof this subdivision for the income of the payor up to and including theincome cap; and(2) for income exceeding the cap, the amount of additional maintenanceawarded, if any, shall be within the discretion of the court which shalltake into consideration any one or more of the factors set forth insubparagraph one of paragraph h of this subdivision; and(3) the court shall set forth the factors it considered and thereasons for its decision in writ ion any one or more of the factors set forth insubparagraph one of paragraph h of this subdivision; and(3) the court shall set forth the factors it considered and thereasons for its decision in writing or on the record. Such decision,whether in writing or on the record, may not be waived by either partyor counsel.e. Notwithstanding the provisions of this subdivision, where theguideline amount of temporary maintenance would reduce the payor'sincome below the self-support reserve Source: NYSenate.gov Open Legislation | Laws of New York Page 6 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p for a single person, the guidelineamount of temporary maintenance shall be the difference between thepayor's income and the self-support reserve. If the payor's income isbelow the self-support reserve, there shall be a rebuttable presumptionthat no temporary maintenance is awarded.f. The court shall determine the duration of temporary maintenance byconsidering the length of the marriage.g. Temporary maintenance shall terminate no later than the issuance ofthe judgment of divorce or the death of either party, whichever occursfirst.h. (1) The court shall order the guideline amount of temporarymaintenance up to the income cap in accordance with paragraph c of thissubdivision, unless the court finds that the guideline amount oftemporary maintenance is unjust or inappropriate, which finding shall bebased upon consideration of any one or more of the following factors,and adjusts the guideline amount of temporary maintenance accordinglybased upon such consideration:(a) the age and health of the parties;(b) the present or future earning capacity of the parties, including ahistory 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 ofthe temporary maintenance award when the calcul 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 ofthe temporary maintenance award when the calculation of temporarymaintenance was based upon child support being awarded and whichresulted in a maintenance award lower than it would have been had childsupport not been awarded;(e) the wasteful dissipation of marital property, including transfersor encumbrances made in contemplation of a matrimonial action withoutfair consideration;(f) the existence and duration of a pre-marital joint household or apre-divorce separate household;(g) acts by one party against another that have inhibited or continueto inhibit a party's earning capacity or ability to obtain meaningfulemployment. Such acts include but are not limited to acts of domesticviolence as provided in section four hundred fifty-nine-a of the socialservices law;(h) the availability and cost of medical insurance for the parties;(i) the care of children or stepchildren, disabled adult children orstepchildren, elderly parents or in-laws provided during the marriagethat inhibits a party's earning capacity;(j) the tax consequences to each party;(k) the standard of living of the parties established during themarriage;(l) the reduced or lost earning capacity of the payee as a result ofhaving forgone or delayed education, training, employment or careeropportunities during the marriage; and(m) any other factor which the court shall expressly find to be justand proper.(2) Where the court finds that the guideline amount of temporarymaintenance is unjust or inappropriate and the court adjusts theguideline amount of temporary maintenance pursuant to this paragraph,the court shall set forth, in a written decision or on the record, theguideline amount of temporary maintenance, the factors it considered,and the reasons that the court adjusted the guideline amount oftemporary maintenance. Such decision, whether in wr the record, theguideline amount of temporary maintenance, the factors it considered,and the reasons that the court adjusted the guideline amount oftemporary maintenance. Such decision, whether in writing or on therecord, shall not be waived by either party or counsel.(3) Where either or both parties are unrepresented, the court shallnot enter a temporary maintenance order unless the court informs theunrepresented party or parties of the guideline amount of temporarymaintenance.i. Nothing contained in this subdivision shall be construed to alterthe rights of the parties to voluntarily enter into agreements orstipulations as defined in subdivision three of this part which deviatefrom the presumptive award of temporary maintenance.j. When a payor has defaulted and/or the court is otherwise presentedwith insufficient evidence to determine income, the court shall orderthe temporary maintenance award based upon the needs of the payee or thestandard of living of the parties prior to commencement of the divorceaction, whichever is greater. Such order may be retroactively modifiedupward without a showing of change in circumstances upon a showing ofnewly discovered evidence.k. In any action or proceeding for modification of an order ofmaintenance or alimony existing prior to the effective date of thissubdivision, brought pursuant to this article, the temporary maintenanceguidelines set forth in this subdivision shall not constitute a changeof circumstances warranting modification of such support order.l. In any action or proceeding for modification where the parties haveentered into an agreement providing for maintenance pursuant tosubdivision three of this part entered into prior to the effective dateof this subdivision, brought pursuant to this article, the temporarymaintenance guidelines set forth in this subdivision shall notconstitute a change of circumstances warranting modification of suchsupport order.m. In determining temporary maintenance, the cou porarymaintenance guidelines set forth in this subdivision shall notconstitute a change of circumstances warranting modification of suchsupport order.m. In determining temporary maintenance, the court shall consider andallocate, where appropriate, the responsibilities of the respectivespouses for the family's expenses during the pendency of the proceeding.n. The temporary maintenance order shall not Source: NYSenate.gov Open Legislation | Laws of New York Page 7 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p prejudice the rights ofeither party regarding a post-divorce maintenance award.6. Post-divorce maintenance awards. a. Except where the parties haveentered into an agreement pursuant to subdivision three of this partproviding for maintenance, in any matrimonial action, the court, uponapplication by a party, shall make its award for post-divorcemaintenance pursuant to the provisions of this subdivision.b. For purposes of this subdivision, the following definitions shallbe 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 codifiedin section two hundred forty of this article and section four hundredthirteen of the family court act, without subtracting alimony ormaintenance actually paid or to be paid to a spouse that is a party tothe instant action pursuant to subclause (C) of clause (vii) ofsubparagraph five of paragraph (b) of subdivision one-b of section twohundred forty of this article and subclause (C) of clause (vii) ofsubparagraph five of paragraph (b) of subdivision one of section fourhundred thirteen of the family court act and without subtracting spousalsupport paid pursuant to section four hundred twelve of such act; and(b) income from income-producing property distributed or to bedistributed pursuant to y court act and without subtracting spousalsupport paid pursuant to section four hundred twelve of such act; and(b) income from income-producing property distributed or to bedistributed pursuant to subdivision five of this part.(4) "Income cap" shall mean up to and including one hundredeighty-four thousand dollars of the payor's annual income; provided,however, beginning March first, two thousand twenty and every two yearsthereafter, the income cap amount shall increase by the sum of theaverage annual percentage changes in the consumer price index for allurban consumers (CPI-U) as published by the United States department oflabor bureau of labor statistics for the prior two years multiplied bythe then income cap and then rounded to the nearest one thousanddollars. The office of court administration shall determine and publishthe income cap.(5) "Guideline amount of post-divorce maintenance" shall mean thedollar amount derived by the application of paragraph c or d of thissubdivision.(6) "Guideline duration of post-divorce maintenance" shall mean thedurational period determined by the application of paragraph f of thissubdivision.(7) "Post-divorce maintenance guideline obligation" shall mean theguideline amount of post-divorce maintenance and the guideline durationof post-divorce maintenance.(8) "Length of marriage" shall mean the period from the date ofmarriage until the date of commencement of the action.(9) "Self-support reserve" shall mean the self-support reserve asdefined in the child support standards act and codified in section twohundred forty of this article and section four hundred thirteen of thefamily court act.(10) "Agreement" shall have the same meaning as provided insubdivision 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-divorcemaintenance as follows:(1) Where child support will be paid for children of the marriage andwhere s lower than or equal to the income cap,the court shall determine the guideline amount of post-divorcemaintenance as follows:(1) Where child support will be paid for children of the marriage andwhere the payor as defined in this subdivision is also the non-custodialparent pursuant to the child support standards act:(a) the court shall subtract twenty-five percent of the payee's incomefrom twenty percent of the payor's income.(b) the court shall then multiply the sum of the payor's income andthe payee's income by forty percent.(c) the court shall subtract the payee's income from the amountderived from clause (b) of this subparagraph.(d) the court shall determine the lower of the two amounts derived byclauses (a) and (c) of this subparagraph.(e) the guideline amount of post-divorce maintenance shall be theamount determined by clause (d) of this subparagraph except that, if theamount determined by clause (d) of this subparagraph is less than orequal to zero, the guideline amount of post-divorce maintenance shall bezero dollars.(f) notwithstanding the provisions of this subdivision, where theguideline amount of post-divorce maintenance would reduce the payor'sincome below the self-support reserve for a single person, the guidelineamount of post-divorce maintenance shall be the difference between thepayor's income and the self-support reserve. If the payor's income isbelow the self-support reserve, there shall be a rebuttable Source: NYSenate.gov Open Legislation | Laws of New York Page 8 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p presumptionthat no post-divorce maintenance is awarded.(g) maintenance shall be calculated prior to child support because theamount of maintenance shall be subtracted from the payor's income andadded to the payee's income as part of the calculation of the childsupport obligation.(2) Where child support will not be paid for children of the marria all be subtracted from the payor's income andadded to the payee's income as part of the calculation of the childsupport 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 thepayor as defined in this subdivision is the custodial parent pursuant tothe child support standards act:(a) the court shall subtract twenty percent of the payee's income fromthirty percent of the payor's income.(b) the court shall then multiply the sum of the payor's income andthe payee's income by forty percent.(c) the court shall subtract the payee's income from the amountderived from clause (b) of this subparagraph.(d) the court shall determine the lower of the two amounts derived byclauses (a) and (c) of this subparagraph.(e) the guideline amount of post-divorce maintenance shall be theamount determined by clause (d) of this subparagraph except that, if theamount determined by clause (d) of this subparagraph is less than orequal to zero, the guideline amount of post-divorce maintenance shall bezero dollars.(f) if child support will be paid for children of the marriage but thepayor as defined in this subdivision is the custodial parent pursuant tothe child support standards act, post-divorce maintenance shall becalculated prior to child support because the amount of post-divorcemaintenance shall be subtracted from the payor's income pursuant to thissubdivision and added to the payee's income pursuant to this subdivisionas part of the calculation of the child support obligation.(g) notwithstanding the provisions of this subdivision, where theguideline amount of post-divorce maintenance would reduce the payor'sincome below the self-support reserve for a single person, the guidelineamount of post-divorce maintenance shall be the difference between thepayor's income and the self-support reserve. If the payor's income isbelow the self-support reserve, there shall be a rebuttable mount of post-divorce maintenance shall be the difference between thepayor's income and the self-support reserve. If the payor's income isbelow the self-support reserve, there shall be a rebuttable presumptionthat no post-divorce maintenance is awarded.d. Where the payor's income exceeds the income cap, the court shalldetermine the guideline amount of post-divorce maintenance as follows:(1) the court shall perform the calculations set forth in paragraph cof this subdivision for the income of payor up to and including theincome cap; and(2) for income exceeding the cap, the amount of additional maintenanceawarded, if any, shall be within the discretion of the court which shalltake into consideration any one or more of the factors set forth insubparagraph one of paragraph e of this subdivision; and(3) the court shall set forth the factors it considered and thereasons for its decision in writing or on the record. Such decision,whether in writing or on the record, may not be waived by either partyor counsel.e. (1) The court shall order the post-divorce maintenance guidelineobligation up to the income cap in accordance with paragraph c of thissubdivision, unless the court finds that the post-divorce maintenanceguideline obligation is unjust or inappropriate, which finding shall bebased upon consideration of any one or more of the following factors,and adjusts the post-divorce maintenance guideline obligationaccordingly based upon such consideration:(a) the age and health of the parties;(b) the present or future earning capacity of the parties, including ahistory 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 ofthe maintenance award when the calculation of maintenance was based uponchild support being awarded which resulted in a maintenance award lowerthan it would have been had child support not been awarded;(e) the wasteful di hen the calculation of maintenance was based uponchild support being awarded which resulted in a maintenance award lowerthan it would have been had child support not been awarded;(e) the wasteful dissipation of marital property, including transfersor encumbrances made in contemplation of a matrimonial action withoutfair consideration;(f) the existence and duration of a pre-marital joint household or apre-divorce separate household;(g) acts by one party against another that have inhibited or continueto inhibit a party's earning capacity or ability to obtain meaningfulemployment. Such acts include but are not limited to acts of domesticviolence as provided in section four hundred fifty-nine-a of the socialservices law;(h) the availability and cost of medical insurance for the parties;(i) the care of children or stepchildren, disabled adult children Source: NYSenate.gov Open Legislation | Laws of New York Page 9 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p orstepchildren, elderly parents or in-laws provided during the marriagethat inhibits a party's earning capacity;(j) the tax consequences to each party;(k) the standard of living of the parties established during themarriage;(l) the reduced or lost earning capacity of the payee as a result ofhaving forgone or delayed education, training, employment or careeropportunities during the marriage;(m) the equitable distribution of marital property and the income orimputed 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 theother party; and(o) any other factor which the court shall expressly find to be justand proper.(2) Where the court finds that the post-divorce maintenance guidelineobligation is unjust or inappropriate and the court adjusts thepost-divorce maintenance guideline obligation pursuant to thispar .(2) Where the court finds that the post-divorce maintenance guidelineobligation is unjust or inappropriate and the court adjusts thepost-divorce maintenance guideline obligation pursuant to thisparagraph, the court shall set forth, in a written decision or on therecord, the unadjusted post-divorce maintenance guideline obligation,the factors it considered, and the reasons that the court adjusted thepost-divorce maintenance obligation. Such decision shall not be waivedby either party or counsel.f. The duration of post-divorce maintenance may be determined asfollows:(1) The court may determine the duration of post-divorce maintenancein accordance with the following advisory schedule:Length of the marriage Percent of the length of the marriage for which maintenance will be payable0 up to and including 15 years 15% - 30%More than 15 up to and including 30% - 40%20 yearsMore than 20 years 35% - 50%(2) In determining the duration of post-divorce maintenance, whetheror not the court utilizes the advisory schedule, it shall consider thefactors listed in subparagraph one of paragraph e of this subdivisionand shall set forth, in a written decision or on the record, the factorsit considered. Such decision shall not be waived by either party orcounsel. Nothing herein shall prevent the court from awardingnon-durational maintenance in an appropriate case.(3) Notwithstanding the provisions of subparagraph one of thisparagraph, post-divorce maintenance shall terminate upon the death ofeither party or upon the payee's valid or invalid marriage, or uponmodification pursuant to paragraph b of subdivision nine of this part orsection two hundred forty-eight of this article.(4) Notwithstanding the provisions of subparagraph one of thisparagraph, when determining duration of post-divorce maintenance, thecourt shall take into consideration anticipated retirement assets,benefits, and retirement eligibility age of both parties ifascertainable at the time of decision. If n post-divorce maintenance, thecourt shall take into consideration anticipated retirement assets,benefits, and retirement eligibility age of both parties ifascertainable at the time of decision. If not ascertainable at the timeof decision, the actual full or partial retirement of the payor withsubstantial diminution of income shall be a basis for a modification ofthe award.g. Where either or both parties are unrepresented, the court shall notenter a maintenance order or judgment unless the court informs theunrepresented party or parties of the post-divorce maintenance guidelineobligation.h. Nothing contained in this subdivision shall be construed to alterthe rights of the parties to voluntarily enter into validly executedagreements or stipulations which deviate from the post-divorcemaintenance guideline obligation.i. When a payor has defaulted and/or the court makes a finding at thetime of trial that it was presented with insufficient evidence todetermine income, the court shall order the post-divorce maintenancebased upon the needs of the payee or the standard of living of theparties prior to commencement of the divorce action, whichever isgreater. Such order may be retroactively modified upward without ashowing of change in circumstances upon a showing of substantial newlydiscovered evidence.j. Post-divorce maintenance may be modified pursuant to paragraph b ofsubdivision nine of this part.k. In any action or proceeding for modification of an order ofmaintenance or alimony existing prior to the effective date of thechapter of the laws of two thousand fifteen which amended thissubdivision, brought pursuant to this article, the guidelines forpost-divorce maintenance set forth in this subdivision shall notconstitute a change of circumstances warranting modification of suchsupport order.l. In any action or proceeding for modification where the parties haveentered into an agreement providing for maintenance pursuant tosubdivision three of this part ent ification of suchsupport order.l. In any action or proceeding for modification where the parties haveentered into an agreement providing for maintenance pursuant tosubdivision three of this part entered into prior to the effective dateof the chapter of the laws of two thousand fifteen which amended thissubdivision, brought pursuant to this article, the guidelines forpost-divorce maintenance set forth in this subdivision shall notconstitute a change of circumstances warranting modification of suchagreement.m. In any action or proceeding for modification of an order ofmaintenance or alimony existing prior to the effective date of thechapter of the laws of two thousand fifteen which amended thissubdivision, brought pursuant to this article, the guidelines forpost-divorce maintenance set forth in paragraphs c, d and e of thissubdivision shall not apply.n. In any action or proceeding Source: NYSenate.gov Open Legislation | Laws of New York Page 10 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p for modification where the parties haveentered into an agreement providing for maintenance pursuant tosubdivision three of this part entered into prior to the effective dateof the chapter of the laws of two thousand fifteen which amended thissubdivision, brought pursuant to this article, the guidelines forpost-divorce maintenance set forth in paragraphs c, d and e of thissubdivision 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, asdefined in subdivision six of section two hundred fifty-three of thisarticle, on the factors enumerated in paragraph e of this subdivision.6-a. Law revision commission study. a. The legislature hereby findsand declares it to be the policy of the state that it is necessary toachieve equitable outcomes when families divorce and it is important toensure that the sion study. a. The legislature hereby findsand declares it to be the policy of the state that it is necessary toachieve equitable outcomes when families divorce and it is important toensure that the economic consequences of a divorce are fairly shared bydivorcing couples. Serious concerns have been raised that theimplementation of New York state's maintenance laws have not resulted inequitable results. Maintenance is often not granted and where it isgranted, the results are inconsistent and unpredictable. This raisesserious concerns about the ability of our current maintenance laws toachieve equitable and fair outcomes.The legislature further finds a comprehensive review of the provisionsof our state's maintenance laws should be undertaken. It has been thirtyyears since the legislature significantly reformed our state's divorcelaws by enacting equitable distribution of marital property andintroduced the concept of maintenance to replace alimony. Concerns thatthe implementation of our maintenance laws have not resulted inequitable 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 theparties;(2) review the maintenance laws of the state, including the way inwhich they are administered to determine the impact of these laws onpost marital economic disparities, and the effectiveness of such lawsand their administration in achieving the state's policy goals andobjectives of ensuring that the economic consequences of a divorce arefairly and equitably shared by the divorcing couple; and(3) make recommendations to the legislature, including such proposedrevisions of such laws as it determines necessary to achieve these goalsand objectives.c. The law revision commission shall make a preliminary report to thelegislature and the governor of its findings, conclusions, and anyrecommendations not later than nine months from the effective date ofthis revision commission shall make a preliminary report to thelegislature and the governor of its findings, conclusions, and anyrecommendations not later than nine months from the effective date ofthis subdivision, and a final report of its findings, conclusions andrecommendations not later than December thirty-first, two thousandeleven.7. Child support. a. In any matrimonial action, or in an independentaction for child support, the court as provided in section two hundredforty of this chapter shall order either or both parents to paytemporary child support or child support without requiring a showing ofimmediate or emergency need. The court shall make an order for temporarychild support notwithstanding that information with respect to incomeand assets of either or both parents may be unavailable. Where suchinformation is available, the court may make an order for temporarychild support pursuant to section two hundred forty of this article.Such order shall, except as provided for herein, be effective as of thedate of the application therefor, and any retroactive amount of childsupport due shall be support arrears/past due support and shall be paidin one sum or periodic sums, as the court shall direct, taking intoaccount any amount of temporary child support which has been paid. Inaddition, such retroactive child support shall be enforceable in anymanner provided by law including, but not limited to, an execution forsupport enforcement pursuant to subdivision (b) of section fifty-twohundred forty-one of the civil practice law and rules. When a childreceiving support is a public assistance recipient, or the order ofsupport is being enforced or is to be enforced pursuant to section onehundred eleven-g of the social services law, the court shall establishthe amount of retroactive child support and notify the parties that suchamount shall be enforced by the support collection unit pursuant to anexecution for support enforcement as provided for in subdivisi ount of retroactive child support and notify the parties that suchamount shall be enforced by the support collection unit pursuant to anexecution for support enforcement as provided for in subdivision (b) ofsection fifty-two hundred forty-one of the civil practice law and rules,or in such periodic payments as would have been authorized had such anexecution been issued. In such case, the court shall not direct theschedule of repayment of retroactive support. The court shall notconsider the misconduct of either party but shall make its award forchild support pursuant to section two hundred forty of this article.b. Notwithstanding any other provision of law, any written applicationor motion to the court for the establishment of a child supportobligation Source: NYSenate.gov Open Legislation | Laws of New York Page 11 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p for persons not in receipt of family assistance must containeither a request for child support enforcement services which wouldauthorize the collection of the support obligation by the immediateissuance of an income execution for support enforcement as provided forby this chapter, completed in the manner specified in section onehundred eleven-g of the social services law; or a statement that theapplicant has applied for or is in receipt of such services; or astatement that the applicant knows of the availability of such services,has declined them at this time and where support enforcement servicespursuant to section one hundred eleven-g of the social services law havebeen declined that the applicant understands that an income deductionorder may be issued pursuant to subdivision (c) of section five thousandtwo hundred forty-two of the civil practice law and rules without otherchild support enforcement services and that payment of an administrativefee may be required. The court shall provide a copy of any such request y-two of the civil practice law and rules without otherchild support enforcement services and that payment of an administrativefee may be required. The court shall provide a copy of any such requestfor child support enforcement services to the support collection unit ofthe appropriate social services district any time it directs payments tobe made to such support collection unit. Additionally, the copy of anysuch request shall be accompanied by the name, address and socialsecurity number of the parties; the date and place of the parties'marriage; the name and date of birth of the child or children; and thename and address of the employers and income payors of the party fromwhom child support is sought. Unless the party receiving child supporthas applied for or is receiving such services, the court shall notdirect such payments to be made to the support collection unit, asestablished in section one hundred eleven-h of the social services law.c. The court shall direct that a copy of any child support or combinedchild and spousal support order issued by the court on or after thefirst day of October, nineteen hundred ninety-eight, in any proceedingunder this section be provided promptly to the state case registryestablished pursuant to subdivision four-a of section one hundredeleven-b of the social services law.d. Any child support order made by the court in any proceeding underthe provisions of this section shall include, on its face, a noticeprinted or typewritten in a size equal to at least eight point bold typeinforming the parties of their right to seek a modification of the childsupport order upon a showing of:(i) a substantial change in circumstances; or(ii) that three years have passed since the order was entered, lastmodified or adjusted; or(iii) there has been a change in either party's gross income byfifteen percent or more since the order was entered, last modified, oradjusted;however, if the parties have specifically opted out of subparagr ere has been a change in either party's gross income byfifteen percent or more since the order was entered, last modified, oradjusted;however, if the parties have specifically opted out of subparagraph (ii)or (iii) of this paragraph in a validly executed agreement orstipulation, then that basis to seek modification does not apply.8. Special relief in matrimonial actions. a. In any matrimonialaction the court may order a party to purchase, maintain or assign apolicy of insurance providing benefits for health and hospital care andrelated services for either spouse or children of the marriage not toexceed such period of time as such party shall be obligated to providemaintenance, child support or make payments of a distributive award. Thecourt may also order a party to purchase, maintain or assign a policy ofaccident insurance or insurance on the life of either spouse, and todesignate in the case of life insurance, either spouse or children ofthe marriage, or in the case of accident insurance, the insured spouseas irrevocable beneficiaries during a period of time fixed by the court.The obligation to provide such insurance shall cease upon thetermination of the spouse's duty to provide maintenance, child supportor a distributive award. A copy of such order shall be served, byregistered mail, on the home office of the insurer specifying the nameand mailing address of the spouse or children, provided that failure toso 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 directthat a payment be made directly to the other spouse or a third personfor real and personal property and services furnished to the otherspouse, or for the rental or mortgage amortization or interest payments,insurances, taxes, repairs or other carrying charges on premisesoccupied by the other spouse, or for both payments to the other spouseand to the rental or mortgage amortization or interest payments,insurances, taxes, repairs or other carrying charges on premisesoccupied by the other spouse, or for both payments to the other spouseand to such third persons. Such direction may be made notwithstandingthat the parties continue to reside in the same abode andnotwithstanding that the court refuses to grant the relief requested bythe other spouse.c. Any order or judgment made as in this section provided may combineany amount payable to either spouse under this section with any amountpayable to such spouse as child support or under section two hundredforty of this chapter.9. Enforcement and modification of orders and judgments in matrimonialactions. a. Source: NYSenate.gov Open Legislation | Laws of New York Page 12 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p All orders or judgments entered in matrimonial actions shallbe enforceable pursuant to section fifty-two hundred forty-one orfifty-two hundred forty-two of the civil practice law and rules, or inany other manner provided by law. Orders or judgments for child support,alimony and maintenance shall also be enforceable pursuant to articlefifty-two of the civil practice law and rules upon a debtor's default assuch term is defined in paragraph seven of subdivision (a) of sectionfifty-two hundred forty-one of the civil practice law and rules. Theestablishment of a default shall be subject to the proceduresestablished for the determination of a mistake of fact for incomeexecutions pursuant to subdivision (e) of section fifty-two hundredforty-one of the civil practice law and rules. For the purposes ofenforcement of child support orders or combined spousal and childsupport orders pursuant to section five thousand two hundred forty-oneof the civil practice law and rules, a "default" shall be deemed toinclude amounts arising from retroactive support. The court may, and rders pursuant to section five thousand two hundred forty-oneof the civil practice law and rules, a "default" shall be deemed toinclude amounts arising from retroactive support. The court may, and ifa party shall fail or refuse to pay maintenance, distributive award orchild support the court shall, upon notice and an opportunity to thedefaulting party to be heard, require the party to furnish a surety, orthe sequestering and sale of assets for the purpose of enforcing anyaward for maintenance, distributive award or child support and for thepayment of reasonable and necessary attorney's fees and disbursements.b. (1) Upon application by either party, the court may annul or modifyany prior order or judgment made after trial as to maintenance, upon ashowing of the payee's inability to be self-supporting or upon a showingof a substantial change in circumstance, including financial hardship orupon actual full or partial retirement of the payor if the retirementresults in a substantial change in financial circumstances. Where, afterthe effective date of this part, an agreement remains in force, nomodification of an order or judgment incorporating the terms of saidagreement shall be made as to maintenance without a showing of extremehardship on either party, in which event the judgment or order asmodified shall supersede the terms of the prior agreement and judgmentfor such period of time and under such circumstances as the courtdetermines. The court shall not reduce or annul any arrears ofmaintenance which have been reduced to final judgment pursuant tosection two hundred forty-four of this article. No other arrears ofmaintenance which have accrued prior to the making of such applicationshall be subject to modification or annulment unless the defaultingparty shows good cause for failure to make application for relief fromthe judgment or order directing such payment prior to the accrual ofsuch arrears and the facts and circumstances constituting good ca shows good cause for failure to make application for relief fromthe judgment or order directing such payment prior to the accrual ofsuch arrears and the facts and circumstances constituting good cause areset forth in a written memorandum of decision. Such modification mayincrease maintenance nunc pro tunc as of the date of application basedon newly discovered evidence. Any retroactive amount of maintenance dueshall, except as provided for herein, be paid in one sum or periodicsums, as the court directs, taking into account any temporary or partialpayments which have been made. The provisions of this subdivision shallnot apply to a separation agreement made prior to the effective date ofthis part.(2) (i) The court may modify an order of child support, including anorder incorporating without merging an agreement or stipulation of theparties, upon a showing of a substantial change in circumstances.Incarceration shall not be considered voluntary unemployment and shallnot be a bar to finding a substantial change in circumstances.(ii) In addition, unless the parties have specifically opted out ofthe following provisions in a validly executed agreement or stipulationentered into between the parties, the court may modify an order of childsupport where:(A) three years have passed since the order was entered, last modifiedor adjusted; or(B) there has been a change in either party's gross income by fifteenpercent or more since the order was entered, last modified, or adjusted.A reduction in income shall not be considered as a ground formodification unless it was involuntary and the party has made diligentattempts to secure employment commensurate with his or her education,ability, and experience.(iii) No modification or annulment shall reduce or annul any arrearsof child support which have accrued prior to the date of application toannul or modify any prior order or judgment as to child support. Suchmodification may increase child support nunc pro tunc as o of child support which have accrued prior to the date of application toannul or modify any prior order or judgment as to child support. Suchmodification may increase child support nunc pro tunc as of the date ofapplication based on Source: NYSenate.gov Open Legislation | Laws of New York Page 13 --- NEW YORK DOMESTIC RELATIONS LAW (Chapter 14) § 236 — Special controlling provisions; prior actions or p newly discovered evidence. Any retroactive amountof child support due shall, except as provided for in this subparagraph,be paid in one sum or periodic sums, as the court directs, taking intoaccount any temporary or partial payments which have been made. Anyretroactive amount of child support due shall be support arrears/pastdue support. In addition, such retroactive child support shall beenforceable in any manner provided by law including, but not limited to,an execution for support enforcement pursuant to subdivision (b) ofsection fifty-two hundred forty-one of the civil practice law and rules.When a child receiving support is a public assistance recipient, or theorder of support is being enforced or is to be enforced pursuant tosection one hundred eleven-g of the social services law, the court shallestablish the amount of retroactive child support and notify the partiesthat such amount shall be enforced by the support collection unitpursuant to an immediate execution for support enforcement as providedfor by this chapter, or in such periodic payments as would have beenauthorized had such an execution been issued. In such case, the courtshall not direct the schedule of repayment of retroactive support.c. Notwithstanding any other provision of law, any written applicationor motion to the court for the modification or enforcement of a childsupport or combined maintenance and child support order for persons notin receipt of family assistance must contain either a request for childsupport enforcement services which would authorize the co upport or combined maintenance and child support order for persons notin receipt of family assistance must contain either a request for childsupport enforcement services which would authorize the collection of thesupport obligation by the immediate issuance of an income execution forsupport enforcement as provided for by this chapter, completed in themanner specified in section one hundred eleven-g of the social serviceslaw; or a statement that the applicant has applied for or is in receiptof such services; or a statement that the applicant knows of theavailability of such services, has declined them at this time and wheresupport enforcement services pursuant to section one hundred eleven-g ofthe social services law have been declined that the applicantunderstands that an income deduction order may be issued pursuant tosubdivision (c) of section five thousand two hundred forty-two of thecivil practice law and rules without other child support enforcementservices and that payment of an administrative fee may be required. Thecourt shall provide a copy of any such request for child supportenforcement services to the support collection unit of the appropriatesocial services district any time it directs payments to be made to suchsupport collection unit. Additionally, the copy of such request shall beaccompanied by the name, address and social security number of theparties; the date and place of the parties' marriage; the name and dateof birth of the child or children; and the name and address of theemployers and income payors of the party ordered to pay child support tothe other party. Unless the party receiving child support or combinedmaintenance and child support has applied for or is receiving suchservices, the court shall not direct such payments to be made to thesupport collection unit, as established in section one hundred eleven-hof the social services law.d. The court shall direct that a copy of any child support or combinedchild and spousal made to thesupport collection unit, as established in section one hundred eleven-hof the social services law.d. The court shall direct that a copy of any child support or combinedchild and spousal support order issued by the court on or after thefirst day of October, nineteen hundred ninety-eight, in any proceedingunder this section be provided promptly to the state case registryestablished pursuant to subdivision four-a of section one hundredeleven-b of the social services law. Source: NYSenate.gov Open Legislation | Laws of New York Page 14