NY State Senate Bill 2009-S2977

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to judiciary
Mar 09, 2009	referred to judiciary

2009-S2977 (ACTIVE) - Details

See Assembly Version of this Bill:: A5979
Current Committee:: Senate Judiciary
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§243 & 245, Dom Rel L

2009-S2977 (ACTIVE) - Summary

Provides additional enforcement mechanisms for the collection of spousal or child support; authorizes court to seek reasonable security from spouse obligated to make equitable distribution payments; authorizes courts to better enforce orders of support which are ignored or violated by removing unnecessary procedural requirements.

2009-S2977 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2977

 TITLE OF BILL :
An act to amend the domestic relations law, in relation to providing
additional enforcement mechanisms for collection of spousal or child
support


 PURPOSE OF BILL :
To assist in the collection of spousal and child support in the event
of the failure to pay on the part of the obligated spouse. Also, to
enable the courts and judges in these cases to better enforce orders
of support which are being ignored or violated, by removing
unnecessary procedural requirements.

 SUMMARY OF PROVISIONS OF BILL :
Section 1 amends §243 of the DRL giving the court discretion to
include payments pursuant to a distributive award or settlement of
equitable distribution to the orders which a court may direct the
defendant to give security for payments.  Section 2 amends §245 of the
DRL and deals with enforcement of judgments or orders in actions for
divorce, separation or annulment and grants additional powers to the
court for enforcement, including giving the court discretion in using
such remedies for enforcement as set forth in the law, rather than the
present requirement that the wronged party must attempt and exhaust
all remedies before the court can issue an order for civil contempt.

 JUSTIFICATION :
Under the DRL, in divorce litigation, the court's options to enforce
compliance with court orders include requiring the posting of
security, sequestration of property, entry of money judgments, income
deduction orders, and punishment for civil contempt.  Additionally,
for enforcement for child support or combined child and spousal
support, the Supreme Court may suspend the driving privileges or the
State professional and business licenses of an offending party.
Despite what appears to be an arsenal of legal remedies upon which to
rely when one party defaults in payment of court-ordered obligations,
there are numerous restrictions upon the authority of the Supreme
Court to require individuals in default to honor these orders.
Additionally, the DRL creates significant differences between the
proof requirements placed upon litigants who seek to enforce orders in
Supreme Court as compared to Family Court. These differences create
substantial and unwarranted burdens upon a family who seeks to enforce
an order directing payment of money which is being violated by a
present or former spouse. When a court order or judgement is violated,
and enforcement is sought in Supreme Court, DRL §245 requires the
court to first find to be unavailable ALL of the other enforcement
remedies set forth in the DRL. This "exhaustion of remedies"
requirement is an overly burdensome requirement on the plaintiff and
the court. Further, where the occurrence of a violation is contested,
at a hearing, the movant must establish that these alternate remedies
are unavailable. In many cases where the other party has some assets
or income, the exhaustion of remedies requirement can render the
contempt remedy all but illusory. While it is true that the remedy of
contempt should not be lightly invoked, and should be a penalty of
last resort, the existence of other means of enforcement should not be
an absolute bar to the contempt remedy, because the time and
procedural requirements for using such other remedies often completely
undermine what should be the goal of an enforcement procedure, I.E.,
prompt relief to the injured party. Thus, while a party may have
property which could be sequestered, for example, by an order
providing for a forced sale, such a procedure may take months to fully
implement. Similarly, a money judgment may be essentially meaningless
since the time involved in executing upon a judgment can be so lengthy
as to make it essentially of no value to a party who needs previously
ordered payments to meet present obligations for housing, clothing,
food, or other necessities for his or her own children or self.
Finally, changing DRL §243, which provides for the posting of security
by a non-paying party, is necessary because, in its present form, it
applies solely to orders for the payment of spousal or child support,
and does not authorize the court to use this remedy to ensure the
payment of monies as part of an equitable distribution award ordered
at the conclusion of a divorce action. As a result, when one party has
been ordered to make periodic payments, but fails to do so as
required, the court cannot now direct that any security be posted.
Where the daily existence of one party is dependent upon another's
compliance with a lawful mandate, this legislation, by freeing the
dependent party from the DRL §245 exhaustion of remedies requirement,
and making the remedy of security available to proceedings to enforce
equitable distribution awards, greatly enhances the ability of our
citizens to enjoy their lives, and denies the means of avoiding
enforcement to any party who purposely ignores his or her
court-ordered financial obligations.

 LEGISLATIVE HISTORY :
New Bill.

 FISCAL IMPLICATIONS :
Some savings to the courts by eliminating unnecessary and time
consuming proceedings caused by the "exhaustion of remedies"
requirement.

 EFFECTIVE DATE :
Immediately, and applies to all actions currently commenced as well as
all judgments or orders previously entered.

2009-S2977 (ACTIVE) - Bill Text download pdf

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

                                  2977

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              March 9, 2009
                               ___________

Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the domestic relations law,  in  relation  to  providing
  additional  enforcement  mechanisms for collection of spousal or child
  support

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  243 of the domestic relations law, as amended by
chapter 281 of the laws of 1980, is amended to read as follows:
  S 243. Security for payments by defendant in action for divorce, sepa-
ration or annulment; sequestration. Where  a  judgment  rendered  or  an
order  made in an action in this state for divorce, separation or annul-
ment, or for a declaration of nullity of a void marriage, or a  judgment
rendered  in  another state for divorce upon any of the grounds provided
in section one hundred seventy of this chapter,  or  for  separation  or
separate  support  and  maintenance  for  any of the causes specified in
section two hundred OF THIS CHAPTER, or for relief, however  designated,
granted  upon grounds which in this state would be grounds for annulment
of marriage or for a declaration of nullity of  a  void  marriage,  upon
which  an  action  has  been brought in this state and judgment rendered
therein, requires a spouse to provide for the education  or  maintenance
of  any  of the children of a marriage, or for the support of his or her
spouse, OR TO MAKE PAYMENTS PURSUANT TO A DISTRIBUTIVE AWARD OR  SETTLE-
MENT  OF  EQUITABLE  DISTRIBUTION  OF THE PROPERTY OF THE PARTIES TO ANY
SUCH ACTION, the court, in its discretion, also may  direct  the  spouse
from  whom  maintenance [or], support OR EQUITABLE DISTRIBUTION PAYMENTS
is sought to give reasonable security, in such a manner and within  such
a  time  as it thinks proper, for the payment, from time to time, of the
sums of money required for that purpose. If he or she fails to give  the
security,  or  to make any payment required by the terms of such a judg-
ment or order, whether or not security has been given  therefor,  or  to

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01551-01-9

S. 2977                             2

pay  any sum of money for the support and maintenance of the children or
the support and maintenance of the spouse during  the  pendency  of  the
action,  OR TO MAKE PAYMENTS PURSUANT TO A DISTRIBUTIVE AWARD OR SETTLE-
MENT  OF  EQUITABLE  DISTRIBUTION  OF THE PROPERTY OF THE PARTIES TO ANY
SUCH ACTION, or for counsel  fees  and  expenses  which  he  or  she  is
required  to  pay by a judgment or order, the court may cause his or her
personal property and the rents and profits of his or her real  property
to  be  sequestered,  and  may appoint a receiver thereof. The rents and
profits and other property so sequestered may be applied, from  time  to
time,  under  the  direction  of the court, to the payment of any of the
sums of money specified in this section, as justice requires; and if the
same shall be insufficient to pay the sums of money required, the court,
on application of the receiver, may direct the mortgage or sale of  such
real property by the receiver, under such terms and conditions as it may
prescribe, sufficient to pay such sums.
  S  2. Section 245 of the domestic relations law, as amended by chapter
809 of the laws of 1985, is amended to read as follows:
  S 245. Enforcement by contempt proceedings of  judgment  or  order  in
action  for  divorce,  separation  or annulment.   Where a spouse, in an
action for divorce, separation, annulment or declaration of nullity of a
void marriage, or for the enforcement in this state of  a  judgment  for
divorce,  separation,  annulment  or  declaration  of  nullity of a void
marriage rendered in another state, makes default in paying any  sum  of
money  as required by the judgment or order directing the payment there-
of, [and it appears presumptively, to the  satisfaction  of  the  court,
that  payment  cannot be enforced pursuant to section two hundred forty-
three or two hundred forty-four of this  chapter  or  section  fifty-two
hundred  forty-one  or fifty-two hundred forty-two of the civil practice
law and rules,] the aggrieved spouse may make  application  pursuant  to
the  provisions  of section seven hundred fifty-six of the judiciary law
to punish the defaulting spouse for contempt, and where the judgment  or
order  directs  the  payment  to  be  made in installments, or at stated
intervals, failure to make such single payment  or  installment  may  be
punished  as  therein  provided,  and such punishment, either by fine or
commitment, shall not be a bar to a subsequent proceeding to punish  the
defaulting  spouse  as  for  a  contempt  for  failure to pay subsequent
installments, but for such purpose such spouse may be proceeded  against
under  the  said  order  in  the same manner and with the same effect as
though such installment payment was directed to be paid  by  a  separate
and distinct order, and the provisions of the civil rights law are here-
by  superseded  so far as they are in conflict therewith.  Such applica-
tion may also be made without any previous sequestration or direction to
give security [where the court is satisfied that they would be  ineffec-
tual], OR ANY APPLICATION FOR ENFORCEMENT BY ANY OTHER MEANS.  No demand
of  any kind upon the defaulting spouse shall be necessary in order that
he or she be proceeded against and punished for failure to make any such
payment or to pay  any  such  installment;  personal  service  upon  the
defaulting  spouse of an uncertified copy of the judgment or order under
which the default has occurred shall be sufficient.
  S 3. This act shall take effect immediately and apply to  all  actions
currently  commenced  as  well  as  all  judgments  or orders previously
entered.

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Senate Bill S2977

Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

2009-S2977 (ACTIVE) - Details

2009-S2977 (ACTIVE) - Summary

2009-S2977 (ACTIVE) - Sponsor Memo

2009-S2977 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S2977

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Sponsored By

John L. Sampson

Archive: Last Bill Status - In Senate Committee Judiciary Committee

2009-S2977 (ACTIVE) - Details

2009-S2977 (ACTIVE) - Summary

2009-S2977 (ACTIVE) - Sponsor Memo

2009-S2977 (ACTIVE) - Bill Text download pdf

Comments