NY State Senate Bill 2017-S4829A

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 03, 2018	referred to judiciary
Apr 03, 2017	print number 4829a
Apr 03, 2017	amend and recommit to judiciary
Mar 02, 2017	referred to judiciary

Bill Amendments

Original

A (Active)

2017-S4829 - Details

Current Committee:: Senate Judiciary
Law Section:: Family Court Act
Laws Affected:: Amd §413, Fam Ct Act; amd §240, Dom Rel L

2017-S4829 - Summary

Relates to agreements and stipulations of child support; explains when an agreement, stipulation or court order shall be deemed void and the hearing process that shall determine such.

2017-S4829 - Sponsor Memo

                                
 
BILL NUMBER: S4829              REVISED MEMO 02/26/2018

SPONSOR: AVELLA
 
TITLE OF BILL:  An act to amend the family court act and the domestic
relations law, in relation to agreements and stipulations of child
support

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Section 413(1)(h) of the Family Court Act and section 240( l -b)(h) of
the Domestic Relations Law provide three important protections for chil-
dren when their parents enter into agreements and stipulations for
payment of child support. Validly executed agreements and stipulations
entered into by the parties and presented to Supreme or Family Court for
incorporation into orders or judgments must include a statement that the
parties were advised of the provisions of the Child Support Standards
Act (CSSA), as well as a statement that the "basic child support obli-
gation" (application of the CSSA percentages to the parties' combined
parental income) would "presumptively result in the correct amount of
child support to be awarded." Where the agreement or stipulation is at
variance with the "basic child support obligation," a statement also

must be included as to what the presumptive amount would have been and
why deviation from that amount is appropriate. These protections are not
waivable by the parties or their attorneys. All four Judicial Depart-
ments have held that agreements not in compliance with these require-
ments are invalid and unenforceable. David v Cruz, 103 A.D.3d 394 (1st
Dept., 2013); Jefferson v Jefferson, 21 A.D.3d 879 (2nd Dept., 2005);
Spooner v Spooner, 154 A.D.3d 1158 (3rd Dept., 2071); Usenza v Swift. 52
A.D.3d 876 (3rd Dept., 2008); Panzarella v Panzarella, 106 A.D.3d 1527
(4th Dept., 2013). However, the Appellate Divisions have not agreed on
the procedures to be followed and the remedies for noncompliance with
these mandates. We propose this measure to supply the necessary clarity
to this area.

This measure would amend both section 413(1)(h) of the Family Court Act
and section 240(1-b)(h) of the Domestic Relations Law to provide that,
if an agreement or stipulation fails to comply with any of the three
provisions of the CSSA, the non-CSSA compliant provisions must be deemed
void as of the earlier of the date that one of the parties alleged the
noncompliance in a pleading or motion or the date the court made a find-
ing of noncompliance. This approach is consistent with that of the
Appellate Division, Third Department, which, in Clark v. Liska, 263
A.D.2d 640 (3rd Dept., 1999), treated a motion to vacate a stipulation
on the ground of noncompliance with these requirements as a prospective
modification of the parties' obligations. Noting that retroactive vaca-
tur of the agreement would negatively affect the accumulated child
support arrears owed by defendant, the cancellation of which is general-
ly prohibited,* the court affirmed the modification date as the date of
the application.  See also Luisi v Luisi, 6 AD.3d 398 (2nd Dept., 2004);
Matter of B.J.G.  v M.D.G., 29 Misc.3d 670 Sup. Ct., Nassau Co., 2010).
Cf., Jefferson v. Jefferson, 21 A.D.3d 879 (2nd Dept., 2005) (noncompli-
ance with CSSA rendered agreement invalid and unenforceable; matter
remitted for new determination of child support retroactive to the
original date of the agreement).

Further, this measure requires that, upon a finding of noncompliance,
the court must hold a hearing to determine an appropriate amount of
child support as of the earlier of the date the noncompliance had been
asserted in a pleading or a motion or the date of the court's finding of
noncompliance. Concomitantly, the measure provides that the noncompli-
ance with the CSSA may not be asserted as a defense to non-payment of
child support in violation of an agreement or stipulation for a period
prior to assertion of noncompliance in a motion or pleading or judicial
determination of noncompliance, whichever was earlier.

Finally, this measure provides that unless Supreme Court has retained
exclusive jurisdiction to enforce or modify the agreement, Family Court
would have subject matter jurisdiction to review, and, where necessary,
set a new child support obligation in cases in which a divorce judgment
did not conform to the CSSA. While the Third Department has held that
Family Court has the authority to make such an order, Hardman v Coleman,
154 A.D.3d 1146 (3rd Dept., 2017); Matter of DuBois v Swisher, 306
A.D.2d 610 (3rd Dept., 2003), the First and Second Departments have
decided that in the absence of statutory authority, Family Court has no
jurisdiction to make a new order of support where it finds that the
underlying order did not comply with the CSSA.. Byrne v Javino, 145
A.D.3d 718 (2nd Dept., 2016); Georgette D.W. v Gary N.R., 134 A.D. 3d
406 (1st Dept., 2015); Castaneda v Castaneda, 132 A.D.3d 667 (2nd Dept.,
2015); Savini v Burgaleta, 34 A.D.3d 686 (2nd Dept, 2006). If a Family
Court in one of these jurisdictions finds that the support order is
unenforceable, it has no choice but to dismiss the petition and direct
the parties to return to Supreme Court, an often time-consuming and
expensive option. And since the order is invalid, Family Court cannot
even direct a support obligor to pay arrears that may have accrued under
the order to the custodial parent.  At the same time, the measure recog-
nizes that there are instances when child support provisions that do not
comply with the CSSA are so intertwined with a non-child support
provision that voiding the child support provisions would also result in
the inappropriate invalidation of non-child support provisions. See,
Cimons v Cimons, 53 A.D.3d 125 (2nd Dept., 2008). Therefore, the measure
provides that if Family Court determines that there are intertwined
provisions over which it has no jurisdiction, e.g. equitable distrib-
utions, it must dismiss the petition in order to allow the parties to
return to Supreme Court.

In light of the ambiguity surrounding the law in this area and, in
particular, the varying approaches taken by courts regarding treatment
of agreements and stipulations deemed not to comply with the CSSA, this
measure will provide needed clarification. In so doing, it will spur
greater compliance with the CSSA, thus fulfilling the legislative intent
of providing appropriate support for children.

This measure would have no fiscal impact on the State. It would take
effect 90 days after becoming a law and apply to agreements and stipu-
lations entered into on or after that date.

 
2017-18 LEGISLATIVE HISTORY:

OCA 2017-16

 
2016 LEGISLATIVE HISTORY:

OCA 2016-96

 
2007-08 LEGISLATIVE HISTORY:
Senate 8342 (Sen. DeFrancisco) (ref. to Rules)
Assembly 7378-A (M. of A. Weinstein) (PASSED)


* See, e.g., Matter of Dax v. Tynon, 90 N.Y.2d 166 (1997).

2017-S4829 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4829
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               March 2, 2017
                                ___________
 
 Introduced by Sen. AVELLA -- (at request of the Office of Court Adminis-
   tration)  --  read  twice  and ordered printed, and when printed to be
   committed to the Committee on Judiciary
 
 AN ACT to amend the family court act and the domestic relations law,  in
   relation to agreements and stipulations of child support

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (h) of subdivision 1 of section 413 of the family
 court act, as amended by chapter 41 of the laws of 1992, is  amended  to
 read as follows:
   (h)  (1)  A  validly  executed  agreement  or  stipulation voluntarily
 entered into between the parties after the effective date of this subdi-
 vision presented to the court for incorporation in an order or  judgment
 shall include THE FOLLOWING:
   (I)  a  provision  stating  that  the parties have been advised of the
 provisions of this subdivision; and
   (II) A PROVISION STATING  that  the  basic  child  support  obligation
 provided for therein would presumptively result in the correct amount of
 child support to be awarded.
   (2)  In the event that such agreement or stipulation deviates from the
 basic child support obligation, the agreement or stipulation must speci-
 fy the amount that such basic child support obligation would  have  been
 and  the  reason  or reasons that such agreement or stipulation does not
 provide for payment of that amount.
   (3) Such provision may not be waived by either party or counsel.
   (4) 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  basic  child  support
 obligation  provided  such  agreements  or  stipulations comply with the
 provisions  of  this  paragraph.  The  court  shall,   however,   retain
 discretion with respect to child support pursuant to this section.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD07081-02-7

 S. 4829                             2
 
   (5)  Any  court  order  or  judgment  incorporating a validly executed
 agreement or stipulation which deviates from  the  basic  child  support
 obligation shall set forth the court's reasons for such deviation.
   (6)  THE  SECTIONS  RELATING TO CHILD SUPPORT IN ANY AGREEMENT, STIPU-
 LATION OR COURT ORDER WHICH A COURT FINDS FAILS TO COMPLY  WITH  ANY  OF
 THE  PROVISIONS  OF  THIS  PARAGRAPH SHALL BE DEEMED VOID AS OF THE DATE
 THAT ANY OF THE PARTIES RAISES THIS FAILURE TO COMPLY IN A  PLEADING  OR
 MOTION OR A COURT OF COMPETENT JURISDICTION MAKES A FINDING OF THE FAIL-
 URE TO COMPLY, WHICHEVER IS EARLIER.
   (7)  IF  A  COURT  OF  COMPETENT JURISDICTION FINDS THAT AN AGREEMENT,
 STIPULATION OR COURT ORDER FAILS TO COMPLY WITH ANY OF THE PROVISIONS OF
 THIS PARAGRAPH, THE COURT SHALL ISSUE A TEMPORARY ORDER OF CHILD SUPPORT
 AND SCHEDULE A HEARING TO DETERMINE THE FINAL CHILD SUPPORT  ORDER.  THE
 FINAL  DETERMINATION  OF  CHILD  SUPPORT  SHALL BE MADE PURSUANT TO THIS
 SECTION DE NOVO AND SHALL BE EFFECTIVE AS OF THE DATE THAT  ANY  OF  THE
 PARTIES  RAISES THE FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
 PARAGRAPH IN A PLEADING OR MOTION OR A COURT OF  COMPETENT  JURISDICTION
 MAKES A FINDING OF THE FAILURE TO COMPLY, WHICHEVER IS EARLIER.
   (8) THE PROVISIONS OF THIS PARAGRAPH SHALL NOT CONSTITUTE A DEFENSE TO
 NON-PAYMENT  OF A CHILD SUPPORT OBLIGATION PRIOR TO THE DATE THAT ANY OF
 THE PARTIES RAISES THE FAILURE TO COMPLY IN A PLEADING OR  MOTION  OR  A
 COURT  OF  COMPETENT  JURISDICTION  MAKES  A  FINDING  OF THE FAILURE TO
 COMPLY, WHICHEVER IS EARLIER.
   (9) FOR THE PURPOSES OF THIS SECTION, A COURT OF  COMPETENT  JURISDIC-
 TION  SHALL  BE  EITHER  THE FAMILY COURT OR THE SUPREME COURT, NOTWITH-
 STANDING THE COURT IN WHICH THE  AGREEMENT,  STIPULATION  OR  ORDER  WAS
 INITIATED,  UNLESS THE SUPREME COURT HAS RETAINED EXCLUSIVE JURISDICTION
 TO ENFORCE OR MODIFY THE AGREEMENT, STIPULATION OR ORDER.
   § 2. Paragraph (h) of subdivision 1-b of section 240 of  the  domestic
 relations  law, as amended by chapter 41 of the laws of 1992, is amended
 to read as follows:
   (h) (1)  A  validly  executed  agreement  or  stipulation  voluntarily
 entered into between the parties after the effective date of this subdi-
 vision  presented to the court for incorporation in an order or judgment
 shall include THE FOLLOWING:
   (I) a provision stating that the parties  have  been  advised  of  the
 provisions of this subdivision[,]; and
   (II)  A  PROVISION  STATING  that  the  basic child support obligation
 provided for therein would presumptively result in the correct amount of
 child support to be awarded.
   (2) In the event that such agreement or stipulation deviates from  the
 basic child support obligation, the agreement or stipulation must speci-
 fy  the  amount that such basic child support obligation would have been
 and the reason or reasons that such agreement or  stipulation  does  not
 provide for payment of that amount.
   (3) Such provision may not be waived by either party or counsel.
   (4)  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 basic child support
 obligation provided such agreements  or  stipulations  comply  with  the
 provisions   of   this  paragraph.  The  court  shall,  however,  retain
 discretion with respect to child support pursuant to this section.
   (5) Any court order  or  judgment  incorporating  a  validly  executed
 agreement  or  stipulation  which  deviates from the basic child support
 obligation shall set forth the court's reasons for such deviation.

 S. 4829                             3
 
   (6) THE SECTIONS RELATING TO CHILD SUPPORT IN  ANY  AGREEMENT,  STIPU-
 LATION  OR  COURT ORDER WHICH FAILS TO COMPLY WITH ANY OF THE PROVISIONS
 OF THIS PARAGRAPH SHALL BE DEEMED VOID AS OF THE DATE THAT  ANY  OF  THE
 PARTIES RAISES THIS FAILURE TO COMPLY IN A PLEADING OR MOTION OR A COURT
 OF  COMPETENT  JURISDICTION  MAKES  A  FINDING OF THE FAILURE TO COMPLY,
 WHICHEVER IS EARLIER.
   (7) IF A COURT OF COMPETENT  JURISDICTION  FINDS  THAT  AN  AGREEMENT,
 STIPULATION OR COURT ORDER FAILS TO COMPLY WITH ANY OF THE PROVISIONS OF
 THIS PARAGRAPH, THE COURT SHALL ISSUE A TEMPORARY ORDER OF CHILD SUPPORT
 AND  SCHEDULE  A HEARING TO DETERMINE THE FINAL CHILD SUPPORT ORDER. THE
 FINAL DETERMINATION OF CHILD SUPPORT SHALL  BE  MADE  PURSUANT  TO  THIS
 SECTION  DE  NOVO  AND SHALL BE EFFECTIVE AS OF THE DATE THAT ANY OF THE
 PARTIES RAISES THE FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF  THIS
 PARAGRAPH  IN  A PLEADING OR MOTION OR A COURT OF COMPETENT JURISDICTION
 MAKES A FINDING OF THE FAILURE TO COMPLY, WHICHEVER IS EARLIER.
   (8) THE PROVISIONS OF THIS PARAGRAPH SHALL NOT CONSTITUTE A DEFENSE TO
 NON-PAYMENT OF A CHILD SUPPORT OBLIGATION FOR ANY PERIOD  PRIOR  TO  THE
 DATE  THAT ANY OF THE PARTIES RAISES THE FAILURE TO COMPLY IN A PLEADING
 OR MOTION OR A COURT OF COMPETENT JURISDICTION MAKES A  FINDING  OF  THE
 FAILURE TO COMPLY, WHICHEVER IS EARLIER.
   (9)  FOR  THE PURPOSES OF THIS SECTION, A COURT OF COMPETENT JURISDIC-
 TION SHALL BE EITHER THE FAMILY COURT OR  THE  SUPREME  COURT,  NOTWITH-
 STANDING  THE  COURT  IN  WHICH  THE AGREEMENT, STIPULATION OR ORDER WAS
 INITIATED, UNLESS THE SUPREME COURT HAS RETAINED EXCLUSIVE  JURISDICTION
 TO ENFORCE OR MODIFY THE AGREEMENT, STIPULATION OR ORDER.
   §  3.  This  act shall take effect on the ninetieth day after it shall
 have become a law and shall apply to agreements and stipulations entered
 into on or after such effective date.

2017-S4829A (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Family Court Act
Laws Affected:: Amd §413, Fam Ct Act; amd §240, Dom Rel L

2017-S4829A (ACTIVE) - Summary

Relates to agreements and stipulations of child support; explains when an agreement, stipulation or court order shall be deemed void and the hearing process that shall determine such.

2017-S4829A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4829A

 TITLE OF BILL :  An act to amend the family court act and the
domestic relations law, in relation to agreements and stipulations of
child support

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Section 413(1)(h) of the Family Court Act and section 240(1-b)(h) of
the Domestic Relations Law provide three important protections for
children when their parents enter into agreements and stipulations for
payment of child support. Validly executed agreements and stipulations
entered into by the parties and presented to Supreme or Family Court
for incorporation into orders or judgments must include a statement
that the parties were advised of the provisions of the Child Support
Standards Act (CSSA), as well as a statement that the "basic child
support obligation" (application of the CSSA percentages to the
parties' combined parental income) would "presumptively result in the
correct amount of child support to be awarded." Where the agreement or
stipulation is at variance with the "basic child support obligation,"
a statement also must be included as to what the presumptive amount
would have been and why the deviation from that amount is appropriate.
These protections are not waivable by the parties or their attorneys.
All four Judicial Departments have held that agreements not in

compliance with these requirements are invalid and unenforceable.
David v Cruz, 103 A.D.3d 394 (1St Dept., 2013); Jefferson v Jefferson,
21 A.D.3d 879 (2nd Dept., 2005); Usenza v Swift, 52 A.D.3d 876 (3rd
Dept., 2008); Panzarella v Panzarella, 106 A.D.3d 1527 (4th Dept.,
2013). However, they have not agreed on the procedures to be followed
and the remedies for noncompliance with these mandates. We propose
this measure to supply the necessary clarity to this area.

This measure would amend both section 413(1)(h) of the Family Court
Act and section 240(1-b)(h) of the Domestic Relations Law to provide
that if an agreement or stipulation fails to comply with any of the
three provisions of the CSSA, the non-CSSA compliant provisions must
be deemed void as of the earlier of the date that one of the parties
alleged the noncompliance in a pleading or motion or the date the
Court made a finding of noncompliance. This approach is consistent
with that of the Appellate Division, Third Department, which, in Clark
v. Liska, 263 A.D.2d 640 (3rd Dept., 1999), treated a motion to vacate
a stipulation on the ground of noncompliance with these requirements
as a prospective modification of the parties' obligations. Noting that
retroactive vacatur of the agreement would negatively affect the
accumulated child support arrears owed by defendant, the cancellation
of which is generally prohibited,* the Court affirmed the modification
date as the date of the application..  See also LaSi v Luisi, 6 AD.3d
398 (2"d Dept., 2004); Matter of B.J.G. v M.D.6., 29 Misc.3d 670 Sup.
Ct., Nassau Co., 2010). Cf., Jefferson v. Jefferson, 21 A.D.3d 879 (ed
Dept., 2005) (noncompliance with CSSA rendered agreement invalid and
unenforceable; matter remitted for new determination of child support
retroactive to the original date of the agreement).

Further, this measure requires that, upon a finding of noncompliance,
the Court must hold a hearing to determine an appropriate amount of
child support as of the earlier of the date the noncompliance had been
asserted in a pleading or a motion or the date of the Court's finding
of noncompliance. Concomitantly, the measure provides that the
noncompliance with the CSSA may not be asserted as a defense to
non-payment of child support in violation of an agreement or
stipulation for a period prior to assertion of noncompliance in a
motion or pleading or judicial determination of noncompliance,
whichever was earlier.

Finally, this measure provides that unless Supreme Court has retained
exclusive jurisdiction to enforce or modify the agreement, Family
Court would have subject matter jurisdiction to review, and, where
necessary, set a new child support obligation in cases in which a
divorce judgment did not conform to the CSSA. While the Third
Department has held that Family Court has the authority to make such
an order, Matter of DuBois v Swisher, 306 A.D.2d 610 (3rd Dept.,
2003), the First and Second Departments have decided that in the
absence of statutory authority, Family Court has no jurisdiction to
make a new order of support where it finds that the underlying order
did not comply with the CSSA. Georgette D. W v Gary N.R., 134 A.D. 3d
406 (1st Dept., 2015); Sawn/ v Burga/eta, 34 A.D.3d 686 (2nd Dept,
2006). If a Family Court in one of these jurisdictions finds that the
support order is unenforceable, it has no choice but to dismiss the
petition and direct the parties to return to Supreme Court, an often
time-consuming and expensive option. And since the order is invalid,
Family Court cannot even direct a support obligor to pay arrears that
may have accrued under the order to the custodial parent.

At the same time, the measure recognizes that there are instances when
child support provisions that do not comply with the CSSA are so
intertwined with a non-child support provision that voiding the child
support provisions would also result in the inappropriate invalidation
of non-child support provisions. See, Cimons v Cimons, 53 A.D.3d 125
(2nd Dept., 2008). Therefore, the measure provides that if the Family
Court determines that there are intertwined provisions over which it
has no jurisdiction, e.g. equitable distributions, it must dismiss the
petition in order to allow the parties to return to Supreme Court.

In light of the ambiguity surrounding the law in this area and, in
particular, the varying approaches taken by courts regarding treatment
of agreements and stipulations deemed not to comply with the CSSA,
this measure will provide needed clarification. In so doing, it will
spur greater compliance with the CSSA, thus fulfilling the legislative
intent of providing appropriate support for children.

This measure would have no fiscal impact on the State. It would take
effect 90 days after becoming a law and shall apply to agreements and
stipulations entered into on or after that date.

 2017 LEGISLATIVE HISTORY :

OCA 2017-16
Senate 4829 (Sen. Avella) (ref to Judiciary)

 2016 LEGISLATIVE HISTORY :

OCA 2016-96

2007-08 Legislative History:

Senate 8342 (Sen. DeFrancisco) (ref. to Rules)
Assembly 7378-A (M. of A. Weinstein) (PASSED)


*See, e.g., Matter of Dax v.Tynon 90 N.Y.2d 166 (1997).

2017-S4829A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4829--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               March 2, 2017
                                ___________
 
 Introduced by Sen. AVELLA -- (at request of the Office of Court Adminis-
   tration)  --  read  twice  and ordered printed, and when printed to be
   committed to the Committee on Judiciary -- committee discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee

 AN ACT to amend the family court act and the domestic relations law,  in
   relation to agreements and stipulations of child support
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (h) of subdivision 1 of section 413 of the family
 court act, as amended by chapter 41 of the laws of 1992, is  amended  to
 read as follows:
   (h)  (1)  A  validly  executed  agreement  or  stipulation voluntarily
 entered into between the parties after the effective date of this subdi-
 vision presented to the court for incorporation in an order or  judgment
 shall include THE FOLLOWING:
   (I)  a  provision  stating  that  the parties have been advised of the
 provisions of this subdivision; and
   (II) A PROVISION STATING  that  the  basic  child  support  obligation
 provided for therein would presumptively result in the correct amount of
 child support to be awarded.
   (2)  In the event that such agreement or stipulation deviates from the
 basic child support obligation, the agreement or stipulation must speci-
 fy the amount that such basic child support obligation would  have  been
 and  the  reason  or reasons that such agreement or stipulation does not
 provide for payment of that amount.
   (3) Such provision may not be waived by either party or counsel.
   (4) 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  basic  child  support
 obligation  provided  such  agreements  or  stipulations comply with the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD07081-03-7

 S. 4829--A                          2
 
 provisions  of  this  paragraph.  The  court  shall,   however,   retain
 discretion with respect to child support pursuant to this section.
   (5)  Any  court  order  or  judgment  incorporating a validly executed
 agreement or stipulation which deviates from  the  basic  child  support
 obligation shall set forth the court's reasons for such deviation.
   (6)  IF A COURT OF COMPETENT JURISDICTION FINDS THAT SECTIONS RELATING
 TO CHILD SUPPORT IN ANY AGREEMENT, STIPULATION OR COURT  ORDER  FAIL  TO
 COMPLY WITH ANY OF THE PROVISIONS OF THIS PARAGRAPH, SUCH SECTIONS SHALL
 BE  DEEMED VOID AS OF THE DATE THAT ANY OF THE PARTIES RAISES THIS FAIL-
 URE TO COMPLY IN A PLEADING OR MOTION OR AS OF THE DATE THAT A COURT  OF
 COMPETENT  JURISDICTION MAKES A FINDING OF THE FAILURE TO COMPLY, WHICH-
 EVER IS EARLIER. ANY SECTIONS OF  AN  AGREEMENT,  STIPULATION  OR  COURT
 ORDER  THAT  ARE  SO  DIRECTLY  CONNECTED  OR INTERTWINED WITH A SECTION
 DEEMED VOID THAT THEY NECESSARILY MUST BE RECALCULATED  THEREWITH  SHALL
 ALSO BE DEEMED VOID AS OF THE SAME EARLIER DATE. PROVIDED, HOWEVER, THAT
 THE  PROVISIONS  OF  THIS  SUBPARAGRAPH SHALL BE SUBJECT TO THE TERMS OF
 SUBPARAGRAPH EIGHT OF THIS PARAGRAPH.
   (7) IF A COURT OF COMPETENT  JURISDICTION  FINDS  THAT  AN  AGREEMENT,
 STIPULATION OR COURT ORDER FAILS TO COMPLY WITH ANY OF THE PROVISIONS OF
 THIS PARAGRAPH, THE COURT SHALL ISSUE A TEMPORARY ORDER OF CHILD SUPPORT
 AND  SCHEDULE  A HEARING TO DETERMINE THE FINAL CHILD SUPPORT ORDER. THE
 FINAL DETERMINATION OF CHILD SUPPORT SHALL  BE  MADE  PURSUANT  TO  THIS
 SECTION  DE  NOVO  AND SHALL BE EFFECTIVE AS OF THE DATE THAT ANY OF THE
 PARTIES RAISES THE FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF  THIS
 PARAGRAPH  IN  A PLEADING OR MOTION OR A COURT OF COMPETENT JURISDICTION
 MAKES A FINDING OF THE FAILURE TO COMPLY, WHICHEVER IS EARLIER.
   (8) IF THE FAMILY COURT FINDS THAT SECTIONS OF  AN  AGREEMENT,  STIPU-
 LATION  OR  COURT  ORDER  OTHER THAN THOSE RELATING TO CHILD SUPPORT ARE
 DIRECTLY CONNECTED OR INTERTWINED WITH A SECTION THAT RELATES  TO  CHILD
 SUPPORT THAT THE COURT HAS FOUND FAILS TO COMPLY WITH THIS PARAGRAPH, IT
 SHALL DISMISS THE PROCEEDING WITHOUT PREJUDICE.
   (9) THE PROVISIONS OF THIS PARAGRAPH SHALL NOT CONSTITUTE A DEFENSE TO
 NON-PAYMENT  OF A CHILD SUPPORT OBLIGATION PRIOR TO THE DATE THAT ANY OF
 THE PARTIES RAISES THE FAILURE TO COMPLY IN A PLEADING OR  MOTION  OR  A
 COURT  OF  COMPETENT  JURISDICTION  MAKES  A  FINDING  OF THE FAILURE TO
 COMPLY, WHICHEVER IS EARLIER.
   (10) FOR THE PURPOSES OF THIS SECTION, A COURT OF COMPETENT  JURISDIC-
 TION  SHALL  BE  EITHER  THE FAMILY COURT OR THE SUPREME COURT, NOTWITH-
 STANDING THE COURT IN WHICH THE  AGREEMENT,  STIPULATION  OR  ORDER  WAS
 INITIATED,  UNLESS THE SUPREME COURT HAS RETAINED EXCLUSIVE JURISDICTION
 TO ENFORCE OR MODIFY THE AGREEMENT, STIPULATION OR ORDER.
   § 2. Paragraph (h) of subdivision 1-b of section 240 of  the  domestic
 relations  law, as amended by chapter 41 of the laws of 1992, is amended
 to read as follows:
   (h) (1)  A  validly  executed  agreement  or  stipulation  voluntarily
 entered into between the parties after the effective date of this subdi-
 vision  presented to the court for incorporation in an order or judgment
 shall include THE FOLLOWING:
   (I) a provision stating that the parties  have  been  advised  of  the
 provisions of this subdivision[,]; and
   (II)  A  PROVISION  STATING  that  the  basic child support obligation
 provided for therein would presumptively result in the correct amount of
 child support to be awarded.
   (2) In the event that such agreement or stipulation deviates from  the
 basic child support obligation, the agreement or stipulation must speci-
 fy  the  amount that such basic child support obligation would have been

 S. 4829--A                          3
 
 and the reason or reasons that such agreement or  stipulation  does  not
 provide for payment of that amount.
   (3) Such provision may not be waived by either party or counsel.
   (4)  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 basic child support
 obligation provided such agreements  or  stipulations  comply  with  the
 provisions   of   this  paragraph.  The  court  shall,  however,  retain
 discretion with respect to child support pursuant to this section.
   (5) Any court order  or  judgment  incorporating  a  validly  executed
 agreement  or  stipulation  which  deviates from the basic child support
 obligation shall set forth the court's reasons for such deviation.
   (6) IF A COURT OF COMPETENT JURISDICTION FINDS THAT SECTIONS  RELATING
 TO  CHILD  SUPPORT  IN ANY AGREEMENT, STIPULATION OR COURT ORDER FAIL TO
 COMPLY WITH ANY OF THE PROVISIONS OF THIS PARAGRAPH, SUCH SECTIONS SHALL
 BE DEEMED VOID AS OF THE DATE THAT ANY OF THE PARTIES RAISES THIS  FAIL-
 URE  TO COMPLY IN A PLEADING OR MOTION OR AS OF THE DATE THAT A COURT OF
 COMPETENT JURISDICTION MAKES A FINDING OF THE FAILURE TO COMPLY,  WHICH-
 EVER  IS  EARLIER.  ANY  SECTIONS  OF AN AGREEMENT, STIPULATION OR COURT
 ORDER THAT ARE SO DIRECTLY  CONNECTED  OR  INTERTWINED  WITH  A  SECTION
 DEEMED  VOID  THAT THEY NECESSARILY MUST BE RECALCULATED THEREWITH SHALL
 ALSO BE DEEMED VOID AS OF THE SAME EARLIER DATE. PROVIDED, HOWEVER, THAT
 THE PROVISIONS OF THIS SUBPARAGRAPH SHALL BE SUBJECT  TO  THE  TERMS  OF
 SUBPARAGRAPH EIGHT OF THIS PARAGRAPH.
   (7)  IF  A  COURT  OF  COMPETENT JURISDICTION FINDS THAT AN AGREEMENT,
 STIPULATION OR COURT ORDER FAILS TO COMPLY WITH ANY OF THE PROVISIONS OF
 THIS PARAGRAPH, THE COURT SHALL ISSUE A TEMPORARY ORDER OF CHILD SUPPORT
 AND SCHEDULE A HEARING TO DETERMINE THE FINAL CHILD SUPPORT  ORDER.  THE
 FINAL  DETERMINATION  OF  CHILD  SUPPORT  SHALL BE MADE PURSUANT TO THIS
 SECTION DE NOVO AND SHALL BE EFFECTIVE AS OF THE DATE THAT  ANY  OF  THE
 PARTIES  RAISES THE FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
 PARAGRAPH IN A PLEADING OR MOTION OR A COURT OF  COMPETENT  JURISDICTION
 MAKES A FINDING OF THE FAILURE TO COMPLY, WHICHEVER IS EARLIER.
   (8)  IF  THE  FAMILY COURT FINDS THAT SECTIONS OF AN AGREEMENT, STIPU-
 LATION OR COURT ORDER OTHER THAN THOSE RELATING  TO  CHILD  SUPPORT  ARE
 DIRECTLY  CONNECTED  OR INTERTWINED WITH A SECTION THAT RELATES TO CHILD
 SUPPORT THAT THE COURT HAS FOUND FAILS TO COMPLY WITH THIS PARAGRAPH, IT
 SHALL DISMISS THE PROCEEDING WITHOUT PREJUDICE.
   (9) THE PROVISIONS OF THIS PARAGRAPH SHALL NOT CONSTITUTE A DEFENSE TO
 NON-PAYMENT OF A CHILD SUPPORT OBLIGATION FOR ANY PERIOD  PRIOR  TO  THE
 DATE  THAT ANY OF THE PARTIES RAISES THE FAILURE TO COMPLY IN A PLEADING
 OR MOTION OR A COURT OF COMPETENT JURISDICTION MAKES A  FINDING  OF  THE
 FAILURE TO COMPLY, WHICHEVER IS EARLIER.
   (10)  FOR THE PURPOSES OF THIS SECTION, A COURT OF COMPETENT JURISDIC-
 TION SHALL BE EITHER THE FAMILY COURT OR  THE  SUPREME  COURT,  NOTWITH-
 STANDING  THE  COURT  IN  WHICH  THE AGREEMENT, STIPULATION OR ORDER WAS
 INITIATED, UNLESS THE SUPREME COURT HAS RETAINED EXCLUSIVE  JURISDICTION
 TO ENFORCE OR MODIFY THE AGREEMENT, STIPULATION OR ORDER.
   §  3.  This  act shall take effect on the ninetieth day after it shall
 have become a law and shall apply to agreements and stipulations entered
 into on or after such effective date.

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Senate Bill S4829A

Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Bill Amendments

2017-S4829 - Details

2017-S4829 - Summary

2017-S4829 - Sponsor Memo

2017-S4829 - Bill Text download pdf

2017-S4829A (ACTIVE) - Details

2017-S4829A (ACTIVE) - Summary

2017-S4829A (ACTIVE) - Sponsor Memo

2017-S4829A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S4829A

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Sponsored By

Tony Avella

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Bill Amendments

2017-S4829 - Details

2017-S4829 - Summary

2017-S4829 - Sponsor Memo

2017-S4829 - Bill Text download pdf

2017-S4829A (ACTIVE) - Details

2017-S4829A (ACTIVE) - Summary

2017-S4829A (ACTIVE) - Sponsor Memo

2017-S4829A (ACTIVE) - Bill Text download pdf

Comments