2023 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.