§ 5241 — Income execution for support enforcement

New York § 5241

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 52: Enforcement of Money Judgments

Text

§ 5241. Income execution for support enforcement. (a) Definitions. As\nused in this section and in section fifty-two hundred forty-two of this\nchapter, the following terms shall have the following meanings:\n 1. "Order of support" means any temporary or final order, judgment,\nagreement or stipulation incorporated by reference in such judgment or\ndecree in a matrimonial action or family court proceeding, or any\nforeign support order, judgment or decree, registered pursuant to\narticle five-B of the family court act which directs the payment of\nalimony, maintenance, support or child support.\n 2. "Debtor" means any person directed to make payments by an order of\nsupport.\n 3. "Creditor" means any person entitled to enforce an order of\nsupport, including a support collection unit.\n 4. "Employer" means any employer, future employer, former employer,\nunion or employees' organization.\n 5. "Income payor" includes:\n (i) the auditor, comptroller, trustee or disbursing officer of any\npension fund, benefit program, policy of insurance or annuity;\n (ii) the state of New York or any political subdivision thereof, or\nthe United States; and\n (iii) any person, corporation, trustee, unincorporated business or\nassociation, partnership, financial institution, bank, savings and loan\nassociation, credit union, stock purchase plan, stock option plan,\nprofit sharing plan, stock broker, commodities broker, bond broker, real\nestate broker, insurance company, entity or institution.\n 6. "Income" includes any earned, unearned, taxable or non-taxable\nincome, benefits, or periodic or lump sum payment due to an individual,\nregardless of source, including wages, salaries, commissions, bonuses,\nworkers' compensation, disability benefits, unemployment insurance\nbenefits, payments pursuant to a public or private pension or retirement\nprogram, federal social security benefits as defined in 42 U.S.C.\nsection 662(f) (2), and interest, but excluding public assistance\nbenefits paid pursuant to the social services law and federal\nsupplemental security income.\n 7. "Default" means the failure of a debtor to remit to a creditor\nthree payments on the date due in the full amount directed by the order\nof support, or the accumulation of arrears equal to or greater than the\namount directed to be paid for one month, whichever first occurs.\n 8. "Mistake of fact" means an error in the amount of current support\nor arrears or in the identity of the debtor or that the order of support\ndoes not exist or has been vacated.\n 9. "Support collection unit" means any support collection unit\nestablished by a social services district pursuant to the provisions of\nsection one hundred eleven-h of the social services law.\n 10. "Date of withholding" means the date on which the income would\notherwise have been paid or made available to the debtor were it not\nwithheld by the employer or income payor.\n 11. "Health insurance benefits" means any medical, dental, optical and\nprescription drugs and health care services or other health care\nbenefits which may be provided for dependents through an employer or\norganization, including such employers or organizations which are\nself-insured.\n 12. "Business day" means a day on which state offices are open for\nregular business.\n 13. "Issuer" means a support collection unit, sheriff, the clerk of\ncourt, or the attorney for the creditor.\n (b) Issuance. (1) When a debtor is in default, an execution for\nsupport enforcement may be issued by the support collection unit, or by\nthe sheriff, the clerk of court or the attorney for the creditor as an\nofficer of the court. Where a debtor is receiving or will receive\nincome, an execution for deductions therefrom in amounts not to exceed\nthe limits set forth in subdivision (g) of this section may be served\nupon an employer or income payor after notice to the debtor. The amount\nof the deductions to be withheld shall be sufficient to ensure\ncompliance with the direction in the order of support, and shall include\nan additional amount to be applied to the reduction of arrears. The\nissuer may amend the execution before or after service upon the employer\nor income payor to reflect additional arrears or payments made by the\ndebtor after notice pursuant to subdivision (d) of this section, or to\nconform the execution to the facts found upon a determination made\npursuant to subdivision (e) of this section.\n (2) (i) Where the court orders the debtor to provide health insurance\nbenefits for specified dependents, an execution for medical support\nenforcement may, except as provided for herein, be issued by the support\ncollection unit, or by the sheriff, the clerk of court or the attorney\nfor the creditor as an officer of the court; provided, however, that\nwhen the court issues an order of child support or combined child and\nspousal support on behalf of persons other than those in receipt of\npublic assistance or in receipt of services pursuant to section one\nhundred eleven-g of the social services law, such medical execution\nshall be in the form of a separate qualified medical child support order\nas provided by subdivision (j) of section four hundred sixteen of the\nfamily court act and paragraph (h) of subdivision one of section two\nhundred forty of the domestic relations law. Such execution for medical\nsupport enforcement may require the debtor's employer, organization or\ngroup health plan administrator to purchase on behalf of the debtor and\nthe debtor's dependents such available health insurance benefits. Such\nexecution shall direct the employer, organization or group health plan\nadministrator to provide to the dependents for whom such benefits are\nrequired to be provided or such dependents' custodial parent or legal\nguardian or social services district on behalf of persons applying for\nor in receipt of public assistance any identification cards and benefit\nclaim forms and to withhold from the debtor's income the employee's\nshare of the cost of such health insurance benefits, and to provide\nwritten confirmation of such enrollment indicating the date such\nbenefits were or become available or that such benefits are not\navailable and the reasons therefor to the issuer of the execution. An\nexecution for medical support enforcement shall not require a debtor's\nemployer, organization or group health plan administrator to purchase or\notherwise acquire health insurance or health insurance benefits that\nwould not otherwise be available to the debtor by reason of his or her\nemployment or membership. Nothing herein shall be deemed to obligate or\notherwise hold any employer, organization or group health plan\nadministrator responsible for an option exercised by the debtor in\nselecting medical insurance coverage by an employee or member.\n (ii) Where the child support order requires the debtor to provide\nhealth insurance benefits for specified dependents, and where the debtor\nprovides such coverage and then changes employment, and the new employer\nprovides health care coverage, an amended execution for medical support\nenforcement may be issued by the support collection unit, or by the\nsheriff, the clerk of the court or the attorney for the creditor as an\nofficer of the court without any return to court. The issuance of the\namended execution shall transfer notice of the requirements of the order\nand the execution to the new employer, organization or group health plan\nadministrator, and shall have the same effect as the original execution\nfor medical support issued pursuant to this section unless the debtor\ncontests the execution.\n (3) Any inconsistent provisions of this title or other law\nnotwithstanding, in any case in which a parent is required by a court\norder to provide health coverage for a child and the parent is eligible\nfor health insurance benefits as defined in this section through an\nemployer or organization, including those which are self-insured, doing\nbusiness in the state, such employer or organization must, in addition\nto implementing the provisions of a medical support execution:\n (i) permit such parent to immediately enroll under such health\ninsurance benefit coverage any such dependent who is otherwise eligible\nfor such coverage without regard to any seasonal enrollment\nrestrictions;\n (ii) if such a parent is enrolled but fails to make application to\nobtain coverage of such dependent child, immediately enroll such\ndependent child under such health benefit coverage upon application by\nsuch child's other parent or by the office of temporary and disability\nassistance or social services district furnishing medical assistance to\nsuch child, and\n (iii) not disenroll, or eliminate coverage of, such a child unless:\n(A) the employer or organization is provided with satisfactory written\nevidence that such court order is no longer in effect, or the child is\nor will be enrolled in comparable health coverage through another\ninsurer which will take effect not later than the effective date of such\ndisenrollment, or\n (B) such employer or organization has eliminated health insurance\ncoverage for all similarly situated employees.\n (c) Execution for support enforcement; form. (1) The income execution\nshall be on the form for income withholding promulgated by the office of\ntemporary and disability assistance for this purpose and shall include\nthe necessary information and directions to ensure its characterization\nas an income withholding notice as described and required by subsection\n(b) of section six hundred sixty-six of title forty-two of the United\nStates Code; provided, however, that where the court enters an order for\nspousal support only for which income withholding will be ordered by the\nsheriff, the clerk of court or the attorney for the creditor, an\nalternate spousal support form for income withholding promulgated by the\noffice of temporary and disability assistance may be used but is not\nrequired. In addition, the income execution shall specify the court in\nwhich it was entered, the amount of the periodic payments directed, and\nthe names of the debtor and creditor. In addition, to the extent not\nalready provided on the form for income withholding, a separate document\nshall be served with the income execution which shall include:\n (i) the name and address of the employer or income payor from whom the\ndebtor is receiving or will receive income;\n (ii) the amount of the deductions to be made therefrom on account of\ncurrent support, and the amount to be applied to the reduction of\narrears;\n (iii) a notice that deductions will apply to current and subsequent\nincome;\n (iv) a notice that the income execution will be served upon any\ncurrent or subsequent employer or income payor unless a mistake of fact\nis shown within fifteen days, a notice of the manner in which a mistake\nof fact may be asserted, and a notice that, if the debtor claims a\nmistake of fact, a determination will be made within forty-five days\nafter notice to the debtor as provided in subdivision (d) of this\nsection, and that the debtor will receive written notice whether the\nincome execution will be served and of the time that deductions will\nbegin;\n (v) a notice that the employer or income payor must commence\ndeductions no later than the first pay period that occurs after fourteen\ndays following the service of the income execution and that payment must\nbe remitted within seven business days of the date that the debtor paid;\n (vi) a notice that the income execution is binding until further\nnotice;\n (vii) a notice of the substance of the provisions of section fifty-two\nhundred fifty-two of this article and that a violation thereof is\npunishable as a contempt of court by fine or imprisonment or both;\n (viii) a notice of the limitations upon deductions from wages set\nforth in subdivision (g) of this section;\n (ix) a notice that an employer must notify the issuer promptly when\nthe debtor terminates employment and provide the debtor's last address\nand the name and address of the new employer, if known;\n (x) a notice that when an employer receives an income withholding\ninstrument issued by another state, the employer shall apply the income\nwithholding law of the state of the debtor's principal place of\nemployment in determining:\n (A) the employer's fee for processing income withholding;\n (B) the maximum amount permitted to be withheld from the debtor's\nincome;\n (C) the time periods within which the employer must implement the\nincome withholding and forward the child support payment;\n (D) the priorities for withholding and allocating income withheld for\nmultiple child support creditors; and\n (E) any withholding terms or conditions not specified in the\nwithholding instrument;\n (xi) a notice that an employer who complies with an income execution\nthat is regular on its face shall not be subject to civil liability to\nany individual or agency for conduct in compliance with the notice; and\n (xii) the amount of arrears.\n (2) The medical support execution shall contain the caption of the\norder of support and specify the date that the order of support was\nentered and the court in which it was entered. Such execution shall\ninclude the name and address of the employer or organization and shall\ninclude:\n (i) a notice that the debtor has been ordered by the court to enroll\nthe dependents in any available health insurance benefits and to\nmaintain such coverage for such dependents as long as such benefits\nremain available;\n (ii) a notice inquiring of the employer or organization as to whether\nsuch health insurance benefits are presently in effect for the eligible\ndependents named in the execution, the date such benefits were or become\navailable, or that such benefits are not available and the reasons\ntherefor and directing that the response to such inquiry immediately be\nforwarded to the issuer of such execution;\n (iii) a statement directing the employer or organization to purchase\non behalf of the debtor any available health insurance benefits to be\nmade available to the debtor's dependents as directed by the execution,\nincluding the enrollment of such eligible dependents in such benefit\nplans and the provision to the dependents or such dependents' custodial\nparent or legal guardian or social services district on behalf of\npersons applying for or in receipt of public assistance of any\nidentification cards and benefit claim forms;\n (iv) a statement directing the employer or organization to deduct from\nthe debtor's income such amount which is the debtor's share of the\npremium, if any, for such health insurance benefits for such dependents\nwho are otherwise eligible for such coverage without regard to any\nseasonal enrollment restrictions;\n (v) a notice that the debtor's employer must notify the issuer\npromptly at any time the debtor terminates or changes such health\ninsurance benefits;\n (vi) a statement that the debtor's employer or organization shall not\nbe required to purchase or otherwise acquire health insurance or health\ninsurance benefits for such dependents that would not otherwise be\navailable to the debtor by reason of his employment or membership;\n (vii) a statement that failure to enroll the eligible dependents in\nsuch health insurance plan or benefits or failure to deduct from the\ndebtor's income the debtor's share of the premium for such plan or\nbenefits shall make such employer or organization jointly and severally\nliable for all medical expenses incurred on the behalf of the debtor's\ndependents named in the execution while such dependents are not so\nenrolled to the extent of the health insurance benefits that should have\nbeen provided under the execution;\n (viii) the name and last known mailing address of the debtor and the\nname and mailing address of the dependents; provided however, that the\nname and mailing address of a social services official may be\nsubstituted on behalf of such dependents;\n (ix) a reasonable description of the type of coverage to be provided\nto each dependent, or the manner in which such type of coverage is to be\ndetermined;\n (x) the period to which such execution applies; and\n (xi) a statement that the debtor's employer or organization shall not\nbe required to provide any type or form of benefit or option not\notherwise provided under the group health plan except to the extent\nnecessary to meet the requirements of a law relating to medical child\nsupport described in section one thousand three hundred ninety-six-g-1\nof title forty-two of the United States Code.\n (d) Notice to debtor. The issuer shall serve a copy of the execution\nupon the debtor by regular mail to the debtor at his last known\nresidence or such other place where he is likely to receive notice, or\nin the same manner as a summons may be served.\n (e) Determination of mistake of fact. Where the execution has been\nissued by the support collection unit, the debtor may assert a mistake\nof fact and shall have an opportunity to make a submission in support of\nthe objection within fifteen days from service of a copy thereof.\nThereafter, the agency shall determine the merits of the objection, and\nshall notify the debtor of its determination within forty-five days\nafter notice to the debtor as provided in subdivision (d) of this\nsection. If the objection is disallowed, the debtor shall be notified\nthat the income execution will be served on the employer or income\npayor, and of the time that deductions will begin. Where the income\nexecution has been issued by an attorney as officer of the court, or by\nthe sheriff, or by the clerk of the court, the debtor may assert a\nmistake of fact within fifteen days from service of a copy thereof by\napplication to the supreme court or to the family court having\njurisdiction in accordance with section four hundred sixty-one of the\nfamily court act. If application is made to the family court, such\napplication shall be by petition on notice to the creditor and it shall\nbe heard and determined in accordance with the provisions of section\nfour hundred thirty-nine of the family court act, and a determination\nthereof shall be made, and the debtor notified thereof within forty-five\ndays of the application. If application is made to the supreme court\nsuch application shall be by order to show cause or motion on notice to\nthe creditor in the action in which the order or judgement sought to be\nenforced was entered and a determination thereof shall be made, and the\ndebtor notified thereof within forty-five days of the application.\n (f) Levy. If a debtor fails to show mistake of fact within fifteen\ndays, or after a determination pursuant to subdivision (e) of this\nsection has been made, or if the issuer is unable to serve the execution\nupon the debtor, the creditor may levy upon the income that the debtor\nis receiving or will receive by serving the execution upon the employer\nor income payor personally in the same manner as a summons or by regular\nmail, except that such service shall not be made by delivery to a person\nauthorized to receive service of summons solely by a designation filed\npursuant to a provision of law other than rule 318.\n (g) Deduction from income. (1) An employer or income payor served with\nan income execution shall commence deductions from income due or\nthereafter due to the debtor no later than the first pay period that\noccurs fourteen days after service of the execution, and shall remit\npayments within seven business days of the date that the debtor is paid.\nEach payment remitted by an employer or income payor shall include the\ninformation as instructed on the income execution and shall be payable\nto and remitted to the state disbursement unit established in this state\nin accordance with section six hundred fifty-four-b of title forty-two\nof the United States Code unless the income execution is for spousal\nsupport only, in which case the payments shall be payable to and\nremitted to the creditor. If the money due to the debtor consists of\nsalary or wages and his or her employment is terminated by resignation\nor dismissal at any time after service of the execution, the levy shall\nthereafter be ineffective, and the execution shall be returned, unless\nthe debtor is reinstated or re-employed within ninety days after such\ntermination. An employer must notify the issuer promptly when the debtor\nterminates employment and provide the debtor's last address and name and\naddress of the new employer, if known. An income payor must notify the\nissuer promptly when the debtor no longer receives income and must\nprovide the debtor's last address and the name and address of the\ndebtor's new employer, if known. Where the income is compensation paid\nor payable to the debtor for personal services, the amount of the\ndeductions to be withheld shall not exceed the following:\n (i) Where a debtor is currently supporting a spouse or dependent child\nother than the creditor, the amount of the deductions to be withheld\nshall not exceed fifty percent of the earnings of the debtor remaining\nafter the deduction therefrom of any amounts required by law to be\nwithheld ("disposable earnings"), except that if any part of such\ndeduction is to be applied to the reduction of arrears which shall have\naccrued more than twelve weeks prior to the beginning of the week for\nwhich such earnings are payable, the amount of such deduction shall not\nexceed fifty-five percent of disposable earnings.\n (ii) Where a debtor is not currently supporting a spouse or dependent\nchild other than the creditor, the amount of the deductions to be\nwithheld shall not exceed sixty percent of the earnings of the debtor\nremaining after the deduction therefrom of any amounts required by law\nto be withheld ("disposable earnings"), except that if any part of such\ndeduction is to be applied to the reduction of arrears which shall have\naccrued more than twelve weeks prior to the beginning of the week for\nwhich such earnings are payable, the amount of such deduction shall not\nexceed sixty-five percent of disposable earnings.\n (2) (A) An employer or income payor served with an income execution in\naccordance with paragraph one of this subdivision shall be liable to the\ncreditor for failure to deduct the amounts specified. The creditor may\ncommence a proceeding against the employer or income payor for accrued\ndeductions, together with interest and reasonable attorney's fees.\n (B) An employer or income payor served with an income execution in\naccordance with paragraph one of this subdivision shall be liable to the\ncreditor and the debtor for failure to remit any amounts which have been\ndeducted as directed by the income execution. Either party may commence\na proceeding against the employer or income payor for accrued\ndeductions, together with interest and reasonable attorney's fees.\n (C) The actions of the employer or income payor in deducting or\nfailing to deduct amounts specified by an income execution shall not\nrelieve the debtor of the underlying obligation of support.\n (D) In addition to the remedies herein provided and as may be\notherwise authorized by law, upon a finding by the family court that the\nemployer or income payor failed to deduct or remit deductions as\ndirected in the income execution, the court shall issue to the employer\nor income payor an order directing compliance and may direct the payment\nof a civil penalty not to exceed five hundred dollars for the first\ninstance and one thousand dollars per instance for the second and\nsubsequent instances of employer or income payor noncompliance. The\npenalty shall be paid to the creditor and may be enforced in the same\nmanner as a civil judgment or in any other manner permitted by law.\n (3) If an employer, organization or group health plan administrator is\nserved with an execution for medical support enforcement, such employer,\norganization or group health plan administrator shall: (i) purchase on\nbehalf of the debtor any health insurance benefits which may be made\navailable to the debtor's dependents as ordered by the execution,\nincluding the immediate enrollment of such eligible dependents in such\nbenefit plans; (ii) provide the dependents for whom such benefits are\nrequired, or a social services official substituted for such dependents,\nidentification cards and benefit claim forms; (iii) commence deductions\nfrom income due or thereafter due to the debtor of such amount which is\nthe debtor's share of the premium, if any, for such health insurance\nbenefits, provided, however, that such deduction when combined with\ndeductions for support does not exceed the limitations set forth in\nparagraph one of this subdivision and is consistent with the priority\nprovisions set forth in subdivision (h) of this section; and (iv)\nprovide a confirmation of such enrollment indicating the date such\nbenefits were or become available or that such benefits are not\navailable and the reasons therefor to the issuer of the execution.\nExcept as otherwise provided by law, nothing herein shall be deemed to\nobligate an employer or organization to maintain or continue an\nemployee's or member's health insurance benefits.\n (4) If such employer, organization or group health plan administrator\nshall fail to so enroll such eligible dependents or to deduct from the\ndebtor's income the debtor's share of the premium, such employer,\norganization or group health plan administrator shall be jointly and\nseverally liable for all medical expenses incurred on behalf of the\ndebtor's dependents named in the execution while such dependents are not\nso enrolled to the extent of the insurance benefits that should have\nbeen provided under such execution. Except as otherwise provided by law,\nnothing herein shall be deemed to obligate an employer, organization or\ngroup health plan administrator to maintain or continue an employee's or\nmember's health insurance benefits.\n (h) Priority. A levy pursuant to this section or an income deduction\norder pursuant to section 5242 of this chapter shall take priority over\nany other assignment, levy or process. If an employer or income payor is\nserved with more than one execution pursuant to this section, or with an\nexecution pursuant to this section and also an order pursuant to section\n5242 of this chapter, and if the combined total amount of the deductions\nto be withheld exceeds the limits set forth in subdivision (g) of this\nsection, the employer or income payor shall withhold the maximum amount\npermitted thereby and pay to each creditor that proportion thereof which\nsuch creditor's claim bears to the combined total. Any additional\ndeduction authorized by subdivision (g) of this section to be applied to\nthe reduction of arrears shall be applied to such arrears in proportion\nto the amount of arrears due to each creditor. Deductions to satisfy\ncurrent support obligations shall have priority over deductions for the\ndebtor's share of health insurance premiums which shall have priority\nover any additional deduction authorized by subdivision (g) of this\nsection.\n (i) Levy upon money payable by the state. A levy upon money payable\ndirectly by a department of the state, or by an institution under its\njurisdiction, shall be made by serving the income execution upon the\nhead of the department, or upon a person designated by him, at the\noffice of the department in Albany; a levy upon money payable directly\nupon the state comptroller's warrant, or directly by a state board,\ncommission, body or agency which is not within any department of the\nstate, shall be made by serving the execution upon the state department\nof audit and control at its office in Albany. Service at the office of a\ndepartment or any agency or institution of the state in Albany may be\nmade by registered or certified mail, return receipt requested.\n