NY Dom Rel L § 236 (2021)
2021 New York Laws DOM - Domestic Relations Article 13 - Provisions Applicable to More Than One Type of Matrimonial Action 236 - Special Controlling Provisions; Prior Actions or Proceedings; New Actions or Proceedings.

§  236.  Special controlling provisions; prior actions or proceedings; new actions or proceedings. Except as otherwise  expressly  provided  in this section, the provisions of part A shall be controlling with respect to  any  action  or  proceeding commenced prior to the date on which the provisions  of  this  section  as  amended  become  effective  and   the provisions  of part B shall be controlling with respect to any action or proceeding commenced on or after such effective date. Any  reference  to this  section  or  the  provisions  hereof  in  any  action, proceeding, judgment, order, rule or agreement shall  be  deemed  and  construed  to refer  to  either  the  provisions  of part A or part B respectively and exclusively, determined as provided in this paragraph  any  inconsistent provision of law notwithstanding.                                   PART A                        PRIOR ACTIONS OR PROCEEDINGS    Alimony,  temporary  and  permanent.  1.  Alimony.  In  any  action or proceeding brought (1) during  the  lifetime  of  both  parties  to  the marriage  to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a  divorce,  the  court  may  direct either  spouse  to  provide suitably for the support of the other as, in the court's discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self  supporting, the  circumstances  of  the  case  and  of  the respective parties. Such direction may require the payment of a  sum  or  sums  of  money  either directly  to  either  spouse  or  to third persons for real and personal property and services furnished to either spouse, or for the  rental  of or mortgage amortization or interest payments, insurance, taxes, repairs or  other carrying charges on premises occupied by either spouse, or for both payments to either spouse and to such third persons. Such direction shall be effective as of the date of the application therefor,  and  any retroactive  amount  of alimony due shall be paid in one sum or periodic sums, as the court shall direct,  taking  into  account  any  amount  of temporary alimony which has been paid. Such direction may be made in the final  judgment  in  such action or proceeding, or by one or more orders from time to time before or subsequent to final  judgment,  or  by  both such  order or orders and the final judgment. Such direction may be made notwithstanding that the parties continue to reside in  the  same  abode and notwithstanding that the court refuses to grant the relief requested by either spouse (1) by reason of a finding by the court that a divorce, annulment  or  judgment  declaring the marriage a nullity had previously been granted to either spouse in an action in  which  jurisdiction  over the person of the other spouse was not obtained, or (2) by reason of the misconduct  of  the  other  spouse,  unless such misconduct would itself constitute grounds for separation or divorce, or  (3)  by  reason  of  a failure   of   proof  of  the  grounds  of  either  spouse's  action  or counterclaim. Any order or judgment made as in this section provided may combine in one lump sum any amount payable to either spouse  under  this section  with  any  amount  payable  to  either spouse under section two hundred forty of this chapter. Upon the application  of  either  spouse, upon  such  notice  to  the  other party and given in such manner as the court shall direct, the court may annul or modify  any  such  direction, whether made by order or by final judgment, or in case no such direction shall  have  been  made  in  the final judgment may, with respect to any judgment of annulment or  declaring  the  nullity  of  a  void  marriage rendered  on  or  after  September  first, nineteen hundred forty or any judgment of separation or divorce whenever rendered, amend the  judgment  by  inserting  such  direction. Subject to the provisions of section two hundred forty-four of this chapter, no such  modification  or  annulment shall  reduce  or  annul  arrears  accrued  prior  to the making of such application  unless the defaulting party shows good cause for failure to make application for relief from the judgment or  order  directing  such payment  prior  to  the  accrual  of such arrears. Such modification may increase such support nunc pro tunc based on newly discovered evidence.   2. Compulsory financial disclosure. In  all  matrimonial  actions  and proceedings  commenced  on  or  after  September first, nineteen hundred seventy-five in supreme court in which alimony, maintenance  or  support is  in issue and all support proceedings in family court, there shall be compulsory disclosure by both  parties  of  their  respective  financial states.  No  showing  of  special circumstances shall be required before such disclosure is ordered. A sworn statement  of  net  worth  shall  be provided  upon receipt of a notice in writing demanding the same, within twenty days after the receipt thereof. In the event  said  statement  is not  demanded,  it  shall  be filed by each party, within ten days after joinder of issue, in the court in which the  procedure  is  pending.  As used  in this section, the term net worth shall mean the amount by which total assets including income exceed total liabilities  including  fixed financial  obligations.  It  shall  include  all  income  and  assets of whatsoever kind and nature and wherever situated  and  shall  include  a list  of all assets transferred in any manner during the preceding three years, or the length of the marriage, whichever  is  shorter;  provided, however  that transfers in the routine course of business which resulted in an exchange of assets of substantially equivalent value need  not  be specifically disclosed where such assets are otherwise identified in the statement  of net worth. Noncompliance shall be punishable by any or all of the penalties prescribed in section thirty-one hundred twenty-six  of the civil practice law and rules, in examination before or during trial.                                   PART B                         NEW ACTIONS OR PROCEEDINGS    Maintenance  and  distributive award. 1. Definitions. Whenever used in this part, the  following  terms  shall  have  the  respective  meanings hereinafter set forth or indicated:   a.  The term "maintenance" shall mean payments provided for in a valid agreement between the parties or awarded by the court in accordance with the provisions of subdivisions five-a and six of this part, to  be  paid at  fixed  intervals for a definite or indefinite period of time, but an award of maintenance shall terminate upon the death of either  party  or upon  the  payee's  valid  or  invalid  marriage,  or  upon modification pursuant to paragraph b of subdivision nine of this part or section  two hundred forty-eight of this chapter.   b. The term "distributive award" shall mean payments provided for in a valid  agreement between the parties or awarded by the court, in lieu of or to supplement, facilitate or effectuate the division or  distribution of property where authorized in a matrimonial action, and payable either in  a  lump  sum or over a period of time in fixed amounts. Distributive awards shall not include payments which are treated as  ordinary  income to  the  recipient  under  the  provisions of the United States Internal Revenue Code.   c. The term "marital property" shall mean  all  property  acquired  by either or both spouses during the marriage and before the execution of a separation  agreement  or  the  commencement  of  a  matrimonial action, regardless of the form in which  title  is  held,  except  as  otherwise  provided  in  agreement  pursuant  to  subdivision  three  of this part. Marital property shall not  include  separate  property  as  hereinafter defined.   d. The term separate property shall mean:  (1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;  (2) compensation for personal injuries;  (3)  property  acquired  in  exchange  for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;  (4) property described as separate property by  written  agreement  of the parties pursuant to subdivision three of this part.   e.  The term "custodial parent" shall mean a parent to whom custody of a child or children is granted by a valid agreement between the  parties or by an order or decree of a court.   f.  The  term  "child support" shall mean a sum paid pursuant to court order or decree by either  or  both  parents  or  pursuant  to  a  valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years.   2.  Matrimonial  actions. a. Except as provided in subdivision five of this part, the provisions of this part shall be  applicable  to  actions for  an  annulment  or  dissolution  of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage,  for  a declaration of the validity or nullity of a foreign judgment of divorce, for  a  declaration  of  the  validity  or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital  property following  a  foreign  judgment  of  divorce, commenced on and after the effective date of this part. Any application which seeks a  modification of  a judgment, order or decree made in an action commenced prior to the effective date of this part shall be heard and determined in  accordance with the provisions of part A of this section.   b.  With respect to matrimonial actions which commence on or after the effective date of this paragraph, the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set  forth  in  this  paragraph.  The  automatic orders  shall  be  binding  upon  the  plaintiff in a matrimonial action immediately upon the filing of the summons, or  summons  and  complaint, and  upon  the  defendant  immediately upon the service of the automatic orders with the summons. The automatic orders shall remain in full force and effect  during  the  pendency  of  the  action,  unless  terminated, modified  or amended by further order of the court upon motion of either of the parties or  upon  written  agreement  between  the  parties  duly executed and acknowledged. The automatic orders are as follows:  (1)  Neither  party  shall  sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other  party in  writing,  or by order of the court, any property (including, but not limited to, real  estate,  personal  property,  cash  accounts,  stocks, mutual  funds,  bank  accounts,  cars and boats) individually or jointly held by the parties,  except  in  the  usual  course  of  business,  for customary and usual household expenses or for reasonable attorney's fees in connection with this action.  (2)  Neither  party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other  assets held  in  any  individual  retirement  accounts,  401K  accounts, profit sharing plans, Keogh  accounts,  or  any  other  pension  or  retirement account,  and  the  parties  shall  further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further  order of the court; except that any party who is already in  pay  status may continue to receive such payments thereunder.  (3) Neither party shall incur unreasonable debts hereafter, including, but  not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or  unreasonably using  credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual  household  expenses, or for reasonable attorney's fees in connection with this action.  (4)  Neither  party shall cause the other party or the children of the marriage to be removed from any existing medical,  hospital  and  dental insurance  coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.  (5) Neither party shall change the beneficiaries of any existing  life insurance  policies,  and  each  party  shall maintain the existing life insurance,  automobile  insurance,  homeowners  and  renters   insurance policies in full force and effect.   3.  Agreement of the parties. An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a  matrimonial action  if  such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a  deed  to  be recorded.  Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage may be executed before  any  person authorized to solemnize a marriage pursuant to subdivisions one, two and three  of  section eleven of this chapter. Such an agreement may include (1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a  will;  (2)  provision for  the  ownership,  division  or  distribution of separate and marital property; (3) provision for the amount and duration  of  maintenance  or other  terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of  the  making  of the  agreement  and are not unconscionable at the time of entry of final judgment; and  (4)  provision  for  the  custody,  care,  education  and maintenance  of  any  child of the parties, subject to the provisions of section two hundred forty of this article. Nothing in  this  subdivision shall  be  deemed  to affect the validity of any agreement made prior to the effective date of this subdivision.   4. Compulsory financial disclosure.  a. In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue,  there shall  be  compulsory  disclosure  by  both  parties of their respective financial states. No showing of special circumstances shall be  required before  such disclosure is ordered. A sworn statement of net worth shall be provided upon receipt of a notice  in  writing  demanding  the  same, within  twenty  days  after  the  receipt  thereof.  In  the  event said statement is not demanded, it shall be filed with the clerk of the court by each party, within ten days after joinder of issue, in the  court  in which  the  proceeding is pending.   As used in this part, the term "net worth" shall mean the amount by  which  total  assets  including  income exceed total liabilities including fixed financial obligations. It shall include all income and assets of whatsoever kind and nature and wherever situated  and  shall  include  a  list  of all assets transferred in any manner during the preceding three years, or the length of the  marriage, whichever  is  shorter;  provided, however that transfers in the routine course  of  business  which  resulted  in  an  exchange  of  assets   of substantially  equivalent value need not be specifically disclosed where such assets are otherwise identified in the statement of net worth.  All such sworn statements of net worth shall be accompanied by a current and representative  paycheck  stub  and  the  most  recently filed state and  federal income tax returns including a copy of the W-2(s) wage  and  tax statement(s) submitted with the returns. In addition, both parties shall provide information relating to any and all group health plans available to them for the provision of care or other medical benefits by insurance or  otherwise  for the benefit of the child or children for whom support is sought, including all such information  as  may  be  required  to  be included  in  a  qualified  medical  child  support  order as defined in section six hundred nine of the employee retirement income security  act of  1974  (29 USC 1169) including, but not limited to:  (i) the name and last known mailing address of each party and of  each  dependent  to  be covered  by the order; (ii) the identification and a description of each group  health  plan  available  for  the  benefit  or  coverage  of  the disclosing  party  and the child or children for whom support is sought; (iii) a detailed description of the type of coverage available from each group health plan for the potential benefit of each such dependent; (iv) the identification of the plan administrator for each such group  health plan  and  the  address  of  such  administrator; (v) the identification numbers for each such group health plan; and (vi) such other information as may be required by the court. Noncompliance shall  be  punishable  by any  or  all  of  the penalties prescribed in section thirty-one hundred twenty-six of the civil practice law and rules, in examination before or during trial.   b. As  soon  as  practicable  after  a  matrimonial  action  has  been commenced,  the  court shall set the date or dates the parties shall use for the valuation of each asset. The valuation  date  or  dates  may  be anytime  from  the  date  of  commencement  of the action to the date of trial.   5. Disposition of property in certain matrimonial actions.  a.  Except where  the  parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce,  or  the dissolution,  annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following  a foreign  judgment  of  divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.   b. Separate property shall remain such.   c.  Marital  property  shall  be  distributed  equitably  between  the parties, considering the circumstances of the case and of the respective parties.   d. In determining an equitable disposition of property under paragraph c, the court shall consider:  (1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;  (2)  the  duration  of  the  marriage  and  the age and health of both parties;  (3) the need of a custodial  parent  to  occupy  or  own  the  marital residence and to use or own its household effects;  (4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;  (5)  the  loss  of  health  insurance benefits upon dissolution of the marriage;  (6) any award of maintenance under subdivision six of this part;  (7) any equitable  claim  to,  interest  in,  or  direct  or  indirect contribution  made  to  the  acquisition of such marital property by the party not having title, including  joint  efforts  or  expenditures  and contributions  and  services  as  a  spouse,  parent,  wage  earner  and homemaker, and to the career or career potential of the other party. The  court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising  from  a  license, degree,  celebrity goodwill, or career enhancement. However, in arriving at  an  equitable division of marital property, the court shall consider the direct or indirect  contributions  to  the  development  during  the marriage of the enhanced earning capacity of the other spouse;  (8) the liquid or non-liquid character of all marital property;  (9) the probable future financial circumstances of each party;  (10) the impossibility or difficulty of evaluating any component asset or  any  interest  in  a  business,  corporation  or profession, and the economic desirability of retaining such asset  or  interest  intact  and free from any claim or interference by the other party;  (11) the tax consequences to each party;  (12) the wasteful dissipation of assets by either spouse;  (13)   any   transfer  or  encumbrance  made  in  contemplation  of  a matrimonial action without fair consideration;  (14) whether either party has committed an act  or  acts  of  domestic violence,  as  described  in  subdivision  one  of  section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts;  (15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal",  as  used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and  (16)  any other factor which the court shall expressly find to be just and proper.   e. In any action in which the court shall determine that an  equitable distribution  is  appropriate  but would be impractical or burdensome or where the distribution of an interest  in  a  business,  corporation  or profession would be contrary to law, the court in lieu of such equitable distribution  shall make a distributive award in order to achieve equity between the parties. The court  in  its  discretion,  also  may  make  a distributive   award   to   supplement,   facilitate   or  effectuate  a distribution of marital property.   f. In addition to the disposition of property as set forth above,  the court may make such order regarding the use and occupancy of the marital home  and  its  household  effects  as  provided  in section two hundred thirty-four of this chapter, without regard to the form of ownership  of such property.   g.  In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel.   h. In any decision made pursuant to this subdivision the court  shall, where  appropriate,  consider  the effect of a barrier to remarriage, as defined in subdivision six of section two hundred  fifty-three  of  this article, on the factors enumerated in paragraph d of this subdivision.   5-a.  Temporary  maintenance  awards. a. Except where the parties have entered  into  an  agreement  providing  for  maintenance  pursuant   to subdivision  three  of  this  part, in any matrimonial action the court, upon application  by  a  party,  shall  make  its  award  for  temporary maintenance pursuant to the provisions of this subdivision.   b.  For  purposes of this subdivision, the following definitions shall be used:  (1) "Payor" shall mean the spouse with the higher income.  (2) "Payee" shall mean the spouse with the lower income.  (3) "Length of marriage" shall  mean  the  period  from  the  date  of marriage until the date of commencement of action.  (4)  "Income"  shall  mean  income  as  defined  in  the child support standards act and codified in section two hundred forty of this  article and  section  four  hundred  thirteen  of  the  family court act without subtracting alimony or maintenance actually paid or  to  be  paid  to  a spouse  that  is a party to the instant action pursuant to subclause (C) of clause (vii) of subparagraph five of  paragraph  (b)  of  subdivision one-b  of section two hundred forty of this article and subclause (C) of clause (vii) of subparagraph five of paragraph (b) of subdivision one of section four hundred thirteen  of  the  family  court  act  and  without subtracting spousal support paid pursuant to section four hundred twelve of such act.  (5)   "Income  cap"  shall  mean  up  to  and  including  one  hundred eighty-four thousand dollars of the  payor's  annual  income;  provided, however,  beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall  increase  by  the  sum  of  the average  annual  percentage  changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department  of labor  bureau  of labor statistics for the prior two years multiplied by the then income cap  and  then  rounded  to  the  nearest  one  thousand dollars.  The office of court administration shall determine and publish the income cap.  (6) "Guideline amount of temporary maintenance" shall mean the  dollar amount  derived  by  the  application  of  paragraph  c  or  d  of  this subdivision.  (7) "Self-support reserve" shall  mean  the  self-support  reserve  as defined  in  the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen  of  the family court act.  (8) "Agreement" shall have the same meaning as provided in subdivision three of this part.   c.  Where the payor's income is lower than or equal to the income cap, the court shall determine the guideline amount of temporary  maintenance as follows:  (1)  Where child support will be paid for children of the marriage and where the payor as defined in this subdivision is also the non-custodial parent pursuant to the child support standards act:  (a) the court shall subtract twenty-five percent of the payee's income from twenty percent of the payor's income.  (b) the court shall then multiply the sum of the  payor's  income  and the payee's income by forty percent.  (c)  the  court  shall  subtract  the  payee's  income from the amount derived from clause (b) of this subparagraph.  (d) the court shall determine the lower of the two amounts derived  by clauses (a) and (c) of this subparagraph.  (e)  the guideline amount of temporary maintenance shall be the amount determined by clause (d) of this subparagraph except that, if the amount determined by clause (d) of this subparagraph is less than or  equal  to zero,  the  guideline  amount  of  temporary  maintenance  shall be zero dollars.  (f) temporary maintenance shall be calculated prior to  child  support because the amount of temporary maintenance shall be subtracted from the payor's  income  and  added  to  the  payee's  income  as  part  of  the calculation of the child support obligation.  (2) Where child support will not be paid for children of the marriage, or where child support will be paid for children of the marriage but the payor as defined in this subdivision is the custodial parent pursuant to the child support standards act:  (a) the court shall subtract twenty percent of the payee's income from thirty percent of the payor's income.  (b)  the  court  shall then multiply the sum of the payor's income and the payee's income by forty percent.  (c) the court shall  subtract  the  payee's  income  from  the  amount derived from clause (b) of this subparagraph.  (d)  the court shall determine the lower of the two amounts derived by clauses (a) and (c) of this subparagraph.  (e) the guideline amount of temporary maintenance shall be the  amount determined by clause (d) of this subparagraph except that, if the amount determined  by  clause (d) of this subparagraph is less than or equal to zero, the guideline  amount  of  temporary  maintenance  shall  be  zero dollars.  (f) if child support will be paid for children of the marriage but the payor as defined in this subdivision is the custodial parent pursuant to the   child  support  standards  act,  temporary  maintenance  shall  be calculated prior to  child  support  because  the  amount  of  temporary maintenance shall be subtracted from the payor's income pursuant to this subdivision and added to the payee's income pursuant to this subdivision as part of the calculation of the child support obligation.   d.  Where  the  payor's income exceeds the income cap, the court shall determine the guideline amount of temporary maintenance as follows:  (1) the court shall perform the calculations set forth in paragraph  c of  this subdivision for the income of the payor up to and including the income cap; and  (2) for income exceeding the cap, the amount of additional maintenance awarded, if any, shall be within the discretion of the court which shall take into consideration any one or more of  the  factors  set  forth  in subparagraph one of paragraph h of this subdivision; and  (3)  the  court  shall  set  forth  the  factors it considered and the reasons for its decision in writing or on  the  record.  Such  decision, whether  in  writing or on the record, may not be waived by either party or counsel.   e. Notwithstanding the  provisions  of  this  subdivision,  where  the guideline  amount  of  temporary  maintenance  would  reduce the payor's income below the self-support reserve for a single person, the guideline amount of temporary maintenance shall  be  the  difference  between  the payor's  income  and  the self-support reserve. If the payor's income is below the self-support reserve, there shall be a rebuttable  presumption that no temporary maintenance is awarded.   f.  The court shall determine the duration of temporary maintenance by considering the length of the marriage.   g. Temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party,  whichever  occurs first.   h.  (1)  The  court  shall  order  the  guideline  amount of temporary maintenance up to the income cap in accordance with paragraph c of  this subdivision,  unless  the  court  finds  that  the  guideline  amount of temporary maintenance is unjust or inappropriate, which finding shall be based upon consideration of any one or more of  the  following  factors, and  adjusts  the  guideline amount of temporary maintenance accordingly based upon such consideration:  (a) the age and health of the parties;  (b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;  (c) the need of one party to incur education or training expenses;  (d) the termination of a child support award during  the  pendency  of the  temporary  maintenance  award  when  the  calculation  of temporary  maintenance was  based  upon  child  support  being  awarded  and  which resulted  in a maintenance award lower than it would have been had child support not been awarded;  (e)  the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a  matrimonial  action  without fair consideration;  (f)  the  existence and duration of a pre-marital joint household or a pre-divorce separate household;  (g) acts by one party against another that have inhibited or  continue to  inhibit  a  party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to  acts  of  domestic violence  as provided in section four hundred fifty-nine-a of the social services law;  (h) the availability and cost of medical insurance for the parties;  (i) the care of children or stepchildren, disabled adult  children  or stepchildren,  elderly  parents  or in-laws provided during the marriage that inhibits a party's earning capacity;  (j) the tax consequences to each party;  (k) the standard of living  of  the  parties  established  during  the marriage;  (l)  the  reduced or lost earning capacity of the payee as a result of having forgone or delayed  education,  training,  employment  or  career opportunities during the marriage; and  (m)  any  other factor which the court shall expressly find to be just and proper.  (2) Where the court finds  that  the  guideline  amount  of  temporary maintenance  is  unjust  or  inappropriate  and  the  court  adjusts the guideline amount of temporary maintenance pursuant  to  this  paragraph, the  court  shall set forth, in a written decision or on the record, the guideline amount of temporary maintenance, the  factors  it  considered, and  the  reasons  that  the  court  adjusted  the  guideline  amount of temporary maintenance. Such decision,  whether  in  writing  or  on  the record, shall not be waived by either party or counsel.  (3)  Where  either  or both parties are unrepresented, the court shall not enter a temporary maintenance order unless  the  court  informs  the unrepresented  party  or  parties  of  the guideline amount of temporary maintenance.   i. Nothing contained in this subdivision shall be construed  to  alter the  rights  of  the  parties  to  voluntarily  enter into agreements or stipulations as defined in subdivision three of this part which  deviate from the presumptive award of temporary maintenance.   j.  When a payor has defaulted and/or the court is otherwise presented with insufficient evidence to determine income, the  court  shall  order the temporary maintenance award based upon the needs of the payee or the standard  of  living of the parties prior to commencement of the divorce action, whichever is greater. Such order may be  retroactively  modified upward  without  a  showing of change in circumstances upon a showing of newly discovered evidence.   k. In any action  or  proceeding  for  modification  of  an  order  of maintenance  or  alimony  existing  prior  to the effective date of this subdivision, brought pursuant to this article, the temporary maintenance guidelines set forth in this subdivision shall not constitute  a  change of circumstances warranting modification of such support order.   l. In any action or proceeding for modification where the parties have entered   into  an  agreement  providing  for  maintenance  pursuant  to subdivision three of this part entered into prior to the effective  date of  this  subdivision,  brought  pursuant to this article, the temporary maintenance  guidelines  set  forth  in  this  subdivision   shall   not  constitute  a  change  of  circumstances warranting modification of such support order.   m.  In determining temporary maintenance, the court shall consider and allocate, where appropriate,  the  responsibilities  of  the  respective spouses for the family's expenses during the pendency of the proceeding.   n.  The  temporary maintenance order shall not prejudice the rights of either party regarding a post-divorce maintenance award.   6. Post-divorce maintenance awards. a. Except where the  parties  have entered  into  an  agreement  pursuant to subdivision three of this part providing for maintenance, in any matrimonial action,  the  court,  upon application   by   a  party,  shall  make  its  award  for  post-divorce maintenance pursuant to the provisions of this subdivision.   b. For purposes of this subdivision, the following  definitions  shall be used:  (1) "Payor" shall mean the spouse with the higher income.  (2) "Payee" shall mean the spouse with the lower income.  (3) "Income" shall mean:  (a)  income as defined in the child support standards act and codified in section two hundred forty of this article and  section  four  hundred thirteen  of  the  family  court  act,  without  subtracting  alimony or maintenance actually paid or to be paid to a spouse that is a  party  to the  instant  action  pursuant  to  subclause  (C)  of  clause  (vii) of subparagraph five of paragraph (b) of subdivision one-b of  section  two hundred  forty  of  this  article  and  subclause (C) of clause (vii) of subparagraph five of paragraph (b) of subdivision one  of  section  four hundred thirteen of the family court act and without subtracting spousal support paid pursuant to section four hundred twelve of such act; and  (b)  income  from  income-producing  property  distributed  or  to  be distributed pursuant to subdivision five of this part.  (4)  "Income  cap"  shall  mean  up  to  and  including  one   hundred eighty-four  thousand  dollars  of  the payor's annual income; provided, however, beginning March first, two thousand twenty and every two  years thereafter,  the  income  cap  amount  shall  increase by the sum of the average annual percentage changes in the consumer price  index  for  all urban  consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years  multiplied  by the  then  income  cap  and  then  rounded  to  the nearest one thousand dollars. The office of court administration shall determine and  publish the income cap.  (5)  "Guideline  amount  of  post-divorce  maintenance" shall mean the dollar amount derived by the application of paragraph c  or  d  of  this subdivision.  (6)  "Guideline  duration  of post-divorce maintenance" shall mean the durational period determined by the application of paragraph f  of  this subdivision.  (7)  "Post-divorce  maintenance  guideline  obligation" shall mean the guideline amount of post-divorce maintenance and the guideline  duration of post-divorce maintenance.  (8)  "Length  of  marriage"  shall  mean  the  period from the date of marriage until the date of commencement of the action.  (9) "Self-support reserve" shall  mean  the  self-support  reserve  as defined  in  the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen  of  the family court act.  (10)   "Agreement"   shall  have  the  same  meaning  as  provided  in subdivision three of this part.    c. Where the payor's income is lower than or equal to the income  cap, the   court   shall  determine  the  guideline  amount  of  post-divorce maintenance as follows:  (1)  Where child support will be paid for children of the marriage and where the payor as defined in this subdivision is also the non-custodial parent pursuant to the child support standards act:  (a) the court shall subtract twenty-five percent of the payee's income from twenty percent of the payor's income.  (b) the court shall then multiply the sum of the  payor's  income  and the payee's income by forty percent.  (c)  the  court  shall  subtract  the  payee's  income from the amount derived from clause (b) of this subparagraph.  (d) the court shall determine the lower of the two amounts derived  by clauses (a) and (c) of this subparagraph.  (e)  the  guideline  amount  of  post-divorce maintenance shall be the amount determined by clause (d) of this subparagraph except that, if the amount determined by clause (d) of this subparagraph  is  less  than  or equal to zero, the guideline amount of post-divorce maintenance shall be zero dollars.  (f)  notwithstanding  the  provisions  of  this subdivision, where the guideline amount of post-divorce maintenance would  reduce  the  payor's income below the self-support reserve for a single person, the guideline amount  of  post-divorce maintenance shall be the difference between the payor's income and the self-support reserve. If the  payor's  income  is below  the self-support reserve, there shall be a rebuttable presumption that no post-divorce maintenance is awarded.  (g) maintenance shall be calculated prior to child support because the amount of maintenance shall be subtracted from the  payor's  income  and added  to  the  payee's  income  as part of the calculation of the child support obligation.  (2) Where child support will not be paid for children of the marriage, or where child support will be paid for children of the marriage but the payor as defined in this subdivision is the custodial parent pursuant to the child support standards act:  (a) the court shall subtract twenty percent of the payee's income from thirty percent of the payor's income.  (b) the court shall then multiply the sum of the  payor's  income  and the payee's income by forty percent.  (c)  the  court  shall  subtract  the  payee's  income from the amount derived from clause (b) of this subparagraph.  (d) the court shall determine the lower of the two amounts derived  by clauses (a) and (c) of this subparagraph.  (e)  the  guideline  amount  of  post-divorce maintenance shall be the amount determined by clause (d) of this subparagraph except that, if the amount determined by clause (d) of this subparagraph  is  less  than  or equal to zero, the guideline amount of post-divorce maintenance shall be zero dollars.  (f) if child support will be paid for children of the marriage but the payor as defined in this subdivision is the custodial parent pursuant to the  child  support  standards  act,  post-divorce  maintenance shall be calculated prior to child support because  the  amount  of  post-divorce maintenance shall be subtracted from the payor's income pursuant to this subdivision and added to the payee's income pursuant to this subdivision as part of the calculation of the child support obligation.  (g)  notwithstanding  the  provisions  of  this subdivision, where the guideline amount of post-divorce maintenance would  reduce  the  payor's income below the self-support reserve for a single person, the guideline amount  of  post-divorce maintenance shall be the difference between the  payor's income and the self-support reserve. If the  payor's  income  is below  the self-support reserve, there shall be a rebuttable presumption that no post-divorce maintenance is awarded.   d.  Where  the  payor's income exceeds the income cap, the court shall determine the guideline amount of post-divorce maintenance as follows:  (1) the court shall perform the calculations set forth in paragraph  c of  this  subdivision  for  the  income of payor up to and including the income cap; and  (2) for income exceeding the cap, the amount of additional maintenance awarded, if any, shall be within the discretion of the court which shall take into consideration any one or more of  the  factors  set  forth  in subparagraph one of paragraph e of this subdivision; and  (3)  the  court  shall  set  forth  the  factors it considered and the reasons for its decision in writing or on  the  record.  Such  decision, whether  in  writing or on the record, may not be waived by either party or counsel.   e. (1) The court shall order the  post-divorce  maintenance  guideline obligation  up  to the income cap in accordance with paragraph c of this subdivision, unless the court finds that  the  post-divorce  maintenance guideline  obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of  the  following  factors, and   adjusts   the   post-divorce   maintenance   guideline  obligation accordingly based upon such consideration:  (a) the age and health of the parties;  (b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;  (c) the need of one party to incur education or training expenses;  (d) the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award  lower than it would have been had child support not been awarded;  (e)  the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a  matrimonial  action  without fair consideration;  (f)  the  existence and duration of a pre-marital joint household or a pre-divorce separate household;  (g) acts by one party against another that have inhibited or  continue to  inhibit  a  party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to  acts  of  domestic violence  as provided in section four hundred fifty-nine-a of the social services law;  (h) the availability and cost of medical insurance for the parties;  (i) the care of children or stepchildren, disabled adult  children  or stepchildren,  elderly  parents  or in-laws provided during the marriage that inhibits a party's earning capacity;  (j) the tax consequences to each party;  (k) the standard of living  of  the  parties  established  during  the marriage;  (l)  the  reduced or lost earning capacity of the payee as a result of having forgone or delayed  education,  training,  employment  or  career opportunities during the marriage;  (m)  the  equitable distribution of marital property and the income or imputed income on the assets so distributed;  (n) the contributions and services of the payee as a  spouse,  parent, wage  earner  and homemaker and to the career or career potential of the other party; and  (o) any other factor which the court shall expressly find to  be  just and proper.  (2)  Where the court finds that the post-divorce maintenance guideline obligation  is  unjust  or  inappropriate  and  the  court  adjusts  the post-divorce   maintenance   guideline   obligation   pursuant  to  this paragraph, the court shall set forth, in a written decision  or  on  the record,  the  unadjusted  post-divorce maintenance guideline obligation, the factors it considered, and the reasons that the court  adjusted  the post-divorce  maintenance  obligation. Such decision shall not be waived by either party or counsel.   f. The duration of  post-divorce  maintenance  may  be  determined  as follows:  (1)  The  court may determine the duration of post-divorce maintenance in accordance with the following advisory schedule: Length of the marriage             Percent of the length of the                                    marriage for which                                    maintenance will be payable 0 up to and including 15 years     15% - 30% More than 15 up to and including   30% - 40% 20 years More than 20 years                 35% - 50%  (2) In determining the duration of post-divorce  maintenance,  whether or  not  the court utilizes the advisory schedule, it shall consider the factors listed in subparagraph one of paragraph e  of  this  subdivision and shall set forth, in a written decision or on the record, the factors it  considered.  Such  decision  shall  not be waived by either party or counsel.  Nothing  herein  shall  prevent  the   court   from   awarding non-durational maintenance in an appropriate case.  (3)  Notwithstanding  the  provisions  of  subparagraph  one  of  this paragraph, post-divorce maintenance shall terminate upon  the  death  of either  party  or  upon  the  payee's valid or invalid marriage, or upon modification pursuant to paragraph b of subdivision nine of this part or section two hundred forty-eight of this article.  (4)  Notwithstanding  the  provisions  of  subparagraph  one  of  this paragraph,  when  determining  duration of post-divorce maintenance, the court shall  take  into  consideration  anticipated  retirement  assets, benefits,   and   retirement   eligibility   age   of  both  parties  if ascertainable at the time of decision. If not ascertainable at the  time of  decision,  the  actual  full or partial retirement of the payor with substantial diminution of income shall be a basis for a modification  of the award.   g. Where either or both parties are unrepresented, the court shall not enter  a  maintenance  order  or  judgment  unless the court informs the unrepresented party or parties of the post-divorce maintenance guideline obligation.   h. Nothing contained in this subdivision shall be construed  to  alter the  rights  of  the  parties to voluntarily enter into validly executed agreements  or  stipulations  which  deviate   from   the   post-divorce maintenance guideline obligation.   i.  When a payor has defaulted and/or the court makes a finding at the time of trial that  it  was  presented  with  insufficient  evidence  to determine  income,  the  court  shall order the post-divorce maintenance based upon the needs of the payee or  the  standard  of  living  of  the parties  prior  to  commencement  of  the  divorce  action, whichever is greater. Such order may  be  retroactively  modified  upward  without  a showing  of  change in circumstances upon a showing of substantial newly discovered evidence.   j. Post-divorce maintenance may be modified pursuant to paragraph b of subdivision nine of this part.    k. In any action  or  proceeding  for  modification  of  an  order  of maintenance  or  alimony  existing  prior  to  the effective date of the chapter  of  the  laws  of  two  thousand  fifteen  which  amended  this subdivision,  brought  pursuant  to  this  article,  the  guidelines for post-divorce  maintenance  set  forth  in  this  subdivision  shall  not constitute a change of circumstances  warranting  modification  of  such support order.   l. In any action or proceeding for modification where the parties have entered   into  an  agreement  providing  for  maintenance  pursuant  to subdivision three of this part entered into prior to the effective  date of  the  chapter  of the laws of two thousand fifteen which amended this subdivision, brought  pursuant  to  this  article,  the  guidelines  for post-divorce  maintenance  set  forth  in  this  subdivision  shall  not constitute a change of circumstances  warranting  modification  of  such agreement.   m.  In  any  action  or  proceeding  for  modification  of an order of maintenance or alimony existing prior  to  the  effective  date  of  the chapter  of  the  laws  of  two  thousand  fifteen  which  amended  this subdivision, brought  pursuant  to  this  article,  the  guidelines  for post-divorce  maintenance  set  forth  in  paragraphs c, d and e of this subdivision shall not apply.   n. In any action or proceeding for modification where the parties have entered  into  an  agreement  providing  for  maintenance  pursuant   to subdivision  three of this part entered into prior to the effective date of the chapter of the laws of two thousand fifteen  which  amended  this subdivision,  brought  pursuant  to  this  article,  the  guidelines for post-divorce maintenance set forth in paragraphs c,  d  and  e  of  this subdivision shall not apply.   o.  In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier  to  remarriage,  as defined  in  subdivision  six of section two hundred fifty-three of this article, on the factors enumerated in paragraph e of this subdivision.   6-a. Law revision commission study. a. The  legislature  hereby  finds and  declares  it  to be the policy of the state that it is necessary to achieve equitable outcomes when families divorce and it is important  to ensure  that the economic consequences of a divorce are fairly shared by divorcing  couples.  Serious  concerns  have  been   raised   that   the implementation of New York state's maintenance laws have not resulted in equitable  results.  Maintenance  is  often  not granted and where it is granted, the results are inconsistent  and  unpredictable.  This  raises serious  concerns  about  the ability of our current maintenance laws to achieve equitable and fair outcomes.   The legislature further finds a comprehensive review of the provisions of our state's maintenance laws should be undertaken. It has been thirty years since the legislature significantly reformed our  state's  divorce laws   by  enacting  equitable  distribution  of  marital  property  and introduced the concept of maintenance to replace alimony. Concerns  that the  implementation  of  our  maintenance  laws  have  not  resulted  in equitable results compel the need for a review of these laws.   b. The law revision commission is hereby directed to:  (1) review and assess the economic  consequences  of  divorce  on  the parties;  (2)  review  the  maintenance  laws of the state, including the way in which they are administered to determine the impact  of  these  laws  on post  marital  economic  disparities, and the effectiveness of such laws and their administration in  achieving  the  state's  policy  goals  and objectives  of  ensuring that the economic consequences of a divorce are fairly and equitably shared by the divorcing couple; and  (3) make recommendations to the legislature, including  such  proposed revisions of such laws as it determines necessary to achieve these goals and objectives.   c.  The law revision commission shall make a preliminary report to the legislature and the governor  of  its  findings,  conclusions,  and  any recommendations  not  later  than nine months from the effective date of this subdivision, and a final report of its  findings,  conclusions  and recommendations  not  later  than  December  thirty-first,  two thousand eleven.   7. Child support. a. In any matrimonial action, or in  an  independent action  for child  support, the court as provided in section two hundred forty of this  chapter  shall  order  either  or  both  parents  to  pay temporary  child support or child support without requiring a showing of immediate or emergency need. The court shall make an order for temporary child support notwithstanding that information with  respect  to  income and  assets  of  either  or  both parents may be unavailable. Where such information is available, the court may  make  an  order  for  temporary child  support  pursuant  to  section two hundred forty of this article. Such order shall, except as provided for herein, be effective as of  the date  of  the  application therefor, and any retroactive amount of child support due shall be support arrears/past due support and shall be  paid in  one  sum  or  periodic  sums, as the court shall direct, taking into account any amount of temporary child support which has  been  paid.  In addition,  such  retroactive  child  support shall be enforceable in any manner provided by law including, but not limited to, an  execution  for support  enforcement  pursuant  to  subdivision (b) of section fifty-two hundred forty-one of the civil practice law  and  rules.  When  a  child receiving  support  is  a  public  assistance recipient, or the order of support is being enforced or is to be enforced pursuant to  section  one hundred  eleven-g  of the social services law, the court shall establish the amount of retroactive child support and notify the parties that such amount shall be enforced by the support collection unit pursuant  to  an execution  for support enforcement as provided for in subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules, or in such periodic payments as would have been authorized had  such  an execution  been  issued.  In  such  case, the court shall not direct the schedule of repayment  of  retroactive  support.  The  court  shall  not consider  the  misconduct  of  either party but shall make its award for child support pursuant to section two hundred forty of this article.   b. Notwithstanding any other provision of law, any written application or motion to  the  court  for  the  establishment  of  a  child  support obligation  for persons not in receipt of family assistance must contain either a request for child  support  enforcement  services  which  would authorize  the  collection  of  the  support obligation by the immediate issuance of an income execution for support enforcement as provided  for by  this  chapter,  completed  in  the  manner  specified in section one hundred eleven-g of the social services law; or  a  statement  that  the applicant  has  applied  for  or  is  in  receipt of such services; or a statement that the applicant knows of the availability of such services, has declined them at this time and where  support  enforcement  services pursuant to section one hundred eleven-g of the social services law have been  declined  that  the applicant understands that an income deduction order may be issued pursuant to subdivision (c) of section five thousand two hundred forty-two of the civil practice law and rules without  other child support enforcement services and that payment of an administrative fee  may be required. The court shall provide a copy of any such request for child support enforcement services to the support collection unit of the appropriate social services district any time it directs payments to  be made to such support collection unit. Additionally, the copy  of  any such  request  shall  be  accompanied  by  the  name, address and social security number of the parties; the  date  and  place  of  the  parties' marriage;  the  name and date of birth of the child or children; and the name and address of the employers and income payors of  the  party  from whom  child  support is sought. Unless the party receiving child support has applied for or is receiving  such  services,  the  court  shall  not direct  such  payments  to  be  made  to the support collection unit, as established in section one hundred eleven-h of the social services law.   c. The court shall direct that a copy of any child support or combined child and spousal support order issued by the  court  on  or  after  the first  day  of October, nineteen hundred ninety-eight, in any proceeding under this section be provided  promptly  to  the  state  case  registry established  pursuant  to  subdivision  four-a  of  section  one hundred eleven-b of the social services law.   d. Any child support order made by the court in any  proceeding  under the  provisions  of  this  section  shall include, on its face, a notice printed or typewritten in a size equal to at least eight point bold type informing the parties of their right to seek a modification of the child support order upon a showing of:  (i) a substantial change in circumstances; or  (ii) that three years have passed since the order  was  entered,  last modified or adjusted; or  (iii)  there  has  been  a  change  in  either party's gross income by fifteen percent or more since the order was entered, last  modified,  or adjusted; however, if the parties have specifically opted out of subparagraph (ii) or   (iii)  of  this  paragraph  in  a  validly  executed  agreement  or stipulation, then that basis to seek modification does not apply.   8. Special relief in matrimonial  actions.    a.  In  any  matrimonial action  the  court  may  order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care  and related  services  for  either spouse or children of the marriage not to exceed such period of time as such party shall be obligated  to  provide maintenance, child support or make payments of a distributive award. The court may also order a party to purchase, maintain or assign a policy of accident  insurance  or  insurance  on the life of either spouse, and to designate in the case of life insurance, either spouse  or  children  of the  marriage,  or in the case of accident insurance, the insured spouse as irrevocable beneficiaries during a period of time fixed by the court. The  obligation  to  provide  such  insurance  shall  cease   upon   the termination  of  the spouse's duty to provide maintenance, child support or a distributive award. A copy  of  such  order  shall  be  served,  by registered  mail,  on the home office of the insurer specifying the name and mailing address of the spouse or children, provided that failure  to so serve the insurer shall not affect the validity of the order.   b.  In  any  action where the court has ordered temporary maintenance, maintenance, distributive award or child support, the court  may  direct that  a  payment  be made directly to the other spouse or a third person for real and personal property  and  services  furnished  to  the  other spouse, or for the rental or mortgage amortization or interest payments, insurances,  taxes,  repairs  or  other  carrying  charges  on  premises occupied by the other spouse, or for both payments to the  other  spouse and  to  such  third persons. Such direction may be made notwithstanding that  the  parties  continue  to  reside   in   the   same   abode   and notwithstanding  that the court refuses to grant the relief requested by the other spouse.    c. Any order or judgment made as in this section provided may  combine any  amount  payable to either spouse under this section with any amount payable to such spouse as child support or  under  section  two  hundred forty of this chapter.   9. Enforcement and modification of orders and judgments in matrimonial actions. a. All orders or judgments entered in matrimonial actions shall be  enforceable  pursuant  to  section  fifty-two  hundred  forty-one or fifty-two hundred forty-two of the civil practice law and rules,  or  in any other manner provided by law. Orders or judgments for child support, alimony  and  maintenance  shall also be enforceable pursuant to article fifty-two of the civil practice law and rules upon a debtor's default as such term is defined in paragraph seven of subdivision  (a)  of  section fifty-two  hundred  forty-one  of  the civil practice law and rules. The establishment  of  a  default  shall  be  subject  to   the   procedures established  for  the  determination  of  a  mistake  of fact for income executions pursuant to subdivision  (e)  of  section  fifty-two  hundred forty-one  of  the  civil  practice  law  and rules. For the purposes of enforcement of child  support  orders  or  combined  spousal  and  child support  orders  pursuant to section five thousand two hundred forty-one of the civil practice law and rules, a  "default"  shall  be  deemed  to include  amounts arising from retroactive support. The court may, and if a party shall fail or refuse to pay maintenance, distributive  award  or child  support  the  court  shall, upon notice and an opportunity to the defaulting party to be heard, require the party to furnish a surety,  or the  sequestering  and  sale  of assets for the purpose of enforcing any award for maintenance, distributive award or child support and  for  the payment of reasonable and necessary attorney's fees and disbursements.   b. (1) Upon application by either party, the court may annul or modify any  prior  order or judgment made after trial as to maintenance, upon a showing of the payee's inability to be self-supporting or upon a showing of a substantial change in circumstance, including financial hardship or upon actual full or partial retirement of the payor  if  the  retirement results in a substantial change in financial circumstances. Where, after the  effective  date  of  this  part,  an agreement remains in force, no modification of an order or judgment incorporating  the  terms  of  said agreement  shall  be made as to maintenance without a showing of extreme hardship on either party, in  which  event  the  judgment  or  order  as modified  shall  supersede the terms of the prior agreement and judgment for such period of time  and  under  such  circumstances  as  the  court determines.  The  court  shall  not  reduce  or  annul  any  arrears  of maintenance which have  been  reduced  to  final  judgment  pursuant  to section  two  hundred  forty-four  of  this article. No other arrears of maintenance which have accrued prior to the making of  such  application shall  be  subject  to  modification  or annulment unless the defaulting party shows good cause for failure to make application for  relief  from the  judgment  or  order  directing such payment prior to the accrual of such arrears and the facts and circumstances constituting good cause are set forth in a written memorandum of  decision.  Such  modification  may increase  maintenance  nunc pro tunc as of the date of application based on newly discovered evidence. Any retroactive amount of maintenance  due shall,  except  as  provided  for herein, be paid in one sum or periodic sums, as the court directs, taking into account any temporary or partial payments which have been made. The provisions of this subdivision  shall not  apply to a separation agreement made prior to the effective date of this part.  (2) (i) The court may modify an order of child support,  including  an order  incorporating  without merging an agreement or stipulation of the parties, upon a  showing  of  a  substantial  change  in  circumstances.  Incarceration  shall  not be considered voluntary unemployment and shall not be a bar to finding a substantial change in  circumstances  provided such  incarceration  is not the result of non-payment of a child support order,  or  an  offense against the custodial parent or child who is the subject of the order or judgment.  (ii) In addition, unless the parties have specifically  opted  out  of the  following provisions in a validly executed agreement or stipulation entered into between the parties, the court may modify an order of child support where:  (A) three years have passed since the order was entered, last modified or adjusted; or  (B) there has been a change in either party's gross income by  fifteen percent or more since the order was entered, last modified, or adjusted. A  reduction  in  income  shall  not  be  considered  as  a  ground  for modification unless it was involuntary and the party has  made  diligent attempts  to  secure  employment commensurate with his or her education, ability, and experience.  (iii) No modification or annulment shall reduce or annul  any  arrears of  child support which have accrued prior to the date of application to annul or modify any prior order or judgment as to  child  support.  Such modification  may increase child support nunc pro tunc as of the date of application based on newly discovered evidence. Any  retroactive  amount of child support due shall, except as provided for in this subparagraph, be  paid  in one sum or periodic sums, as the court directs, taking into account any temporary or partial payments  which  have  been  made.  Any retroactive  amount  of  child support due shall be support arrears/past due support. In  addition,  such  retroactive  child  support  shall  be enforceable in any manner provided by law including, but not limited to, an  execution  for  support  enforcement  pursuant to subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules. When a child receiving support is a public assistance recipient, or  the order  of  support  is  being  enforced or is to be enforced pursuant to section one hundred eleven-g of the social services law, the court shall establish the amount of retroactive child support and notify the parties that such amount shall  be  enforced  by  the  support  collection  unit pursuant  to  an immediate execution for support enforcement as provided for by this chapter, or in such periodic payments  as  would  have  been authorized  had  such  an execution been issued. In such case, the court shall not direct the schedule of repayment of retroactive support.   c. Notwithstanding any other provision of law, any written application or motion to the court for the modification or enforcement  of  a  child support  or combined maintenance and child support order for persons not in receipt of family assistance must contain either a request for  child support enforcement services which would authorize the collection of the support  obligation by the immediate issuance of an income execution for support enforcement as provided for by this chapter,  completed  in  the manner  specified in section one hundred eleven-g of the social services law; or a statement that the applicant has applied for or is in  receipt of  such  services;  or  a  statement  that  the  applicant knows of the availability of such services, has declined them at this time and  where support enforcement services pursuant to section one hundred eleven-g of the   social   services  law  have  been  declined  that  the  applicant understands that an income deduction order may  be  issued  pursuant  to subdivision  (c)  of  section five thousand two hundred forty-two of the civil practice law and rules without  other  child  support  enforcement services  and that payment of an administrative fee may be required. The court shall provide a  copy  of  any  such  request  for  child  support enforcement  services  to the support collection unit of the appropriate  social services district any time it directs payments to be made to such support collection unit. Additionally, the copy of such request shall be accompanied by the name, address  and  social  security  number  of  the parties;  the date and place of the parties' marriage; the name and date of birth of the child or children; and  the  name  and  address  of  the employers and income payors of the party ordered to pay child support to the  other  party.  Unless the party receiving child support or combined maintenance and child support has  applied  for  or  is  receiving  such services,  the  court  shall  not direct such payments to be made to the support collection unit, as established in section one hundred  eleven-h of the social services law.   d. The court shall direct that a copy of any child support or combined child  and  spousal  support  order  issued by the court on or after the first day of October, nineteen hundred ninety-eight, in  any  proceeding under  this  section  be  provided  promptly  to the state case registry established pursuant  to  subdivision  four-a  of  section  one  hundred eleven-b of the social services law.