§ 5242 — Income deduction order for support enforcement

New York § 5242

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

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§ 5242. Income deduction order for support enforcement. (a) Upon\napplication of a creditor, for good cause shown, and upon such terms as\njustice may require, the court may correct any defect, irregularity,\nerror or omission in an income execution for support enforcement issued\npursuant to section 5241 of this article.\n (b) Upon application of a creditor, for good cause shown, the court\nmay enter an income deduction order for support enforcement. In\ndetermining good cause, the court may take into consideration evidence\nof the degree of such debtor's past financial responsibility, credit\nreferences, credit history, and any other matter the court considers\nrelevant in determining the likelihood of payment in accordance with the\norder of support. Proof of default establishes a prima facie case\nagainst the debtor, which can be overcome only by proof of the debtor's\ninability to make the payments. Unless the prima facie case is overcome,\nthe court shall enter an income deduction order for support enforcement\npursuant to this section.\n (c) When the court enters an order of support on behalf of persons\nother than those in receipt of public assistance or in receipt of\nservices pursuant to section one hundred eleven-g of the social services\nlaw, or registers pursuant to article five-B of the family court act an\norder of support which has been issued by a foreign jurisdiction and\nwhich is not to be enforced pursuant to title six-A of article three of\nthe social services law, where the court determines that the debtor has\nincome that could be subject to an income deduction order, the court\nshall issue an income deduction order to obtain payment of the order at\nthe same time it issues or registers the order. The court shall enter\nthe income deduction order unless the court finds and sets forth in\nwriting (i) the reasons that there is good cause not to require\nimmediate income withholding; or (ii) that an agreement providing for an\nalternative arrangement has been reached between the parties. Such\nagreement may include a written agreement or an oral stipulation, made\non the record, that results in a written order. For purposes of this\nsubdivision, good cause shall mean substantial harm to the debtor. The\nabsence of an arrearage or the mere issuance of an income deduction\norder shall not constitute good cause. When the court determines that\nthere is good cause not to issue an income deduction order immediately\nor when the parties agree to an alternative arrangement as provided in\nthis subdivision, the court shall state expressly in the order of\nsupport the basis for its decision.\n (d) In entering the income deduction order, the court shall use the\nform for income withholding promulgated by the office of temporary and\ndisability assistance for this purpose, which form shall include the\nnecessary information and directions to ensure the characterization of\nthe income deduction order as an income withholding notice as described\nand required by subsection (b) of section six hundred sixty-six of title\nforty-two of the United States Code; provided, however, that where the\ncourt enters an order for spousal support only, an alternate spousal\nsupport form for income withholding promulgated by the office of\ntemporary and disability assistance may be used but is not required. The\ncourt shall serve or cause to be served a copy of the income deduction\norder on the employer or income payor and transmit copies of such order\nto the parties; and, in addition, where the income deduction order is\nfor child support or combined child and spousal support, to the state\ndisbursement unit established in this state in accordance with section\nsix hundred fifty-four-b of title forty-two of the United States Code.\n (e) An employer or income payor served with an income deduction order\nentered pursuant to this section shall commence deductions from the\nincome due or thereafter due to the debtor no later than the first pay\nperiod that occurs fourteen days after service of the income deduction\norder, and shall make payments payable to and remit such payments to the\nstate disbursement unit if the deductions are for child or combined\nchild and spousal support, or to the creditor if the deductions are for\nspousal support only, within seven business days of the date that the\ndebtor is paid. Each payment remitted by the employer or income payor\nshall include the information as instructed on the income deduction\norder. The amount remitted by the employer or income payor shall be as\nset forth in the income deduction order including the additional amount\nthat shall be ordered by the court and applied to the reduction of\narrears, if any, unless such deduction is otherwise limited by\nsubdivision (f) of this section.\n (f) An employer or income payor shall be liable to the creditor for\nfailure to deduct the amounts specified in the income deduction order,\nprovided however that deduction by the employer or income payor of the\namounts specified shall not relieve the debtor of the underlying\nobligation of support. If an employer or income payor shall fail to so\npay the state disbursement unit or, if a spousal support only payment\nthe creditor, the creditor may commence a proceeding against the\nemployer or income payor for accrued deductions, together with interest\nand reasonable attorney's fees. If the debtor's employment is terminated\nby resignation or dismissal at any time after service of the income\ndeduction order, the order shall cease to have force and effect 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 must provide the debtor's last address and the\nname and address of the debtor's new employer, if known. An income payor\nmust notify the issuer when the debtor no longer receives income and\nmust provide 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 withheld by\nthe employer shall not exceed the following:\n (i) Where the debtor currently is supporting a spouse or dependent\nchild other than the creditor's dependent child, the amount 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 the\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 withheld shall not exceed\nfifty-five percent of disposable earnings.\n (ii) Where the debtor currently is not supporting a spouse or\ndependent child other than the creditor's dependent child, the amount\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 the\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 withheld shall not exceed\nsixty-five percent of disposable earnings.\n (g) An order pursuant to this section shall take priority over any\nother assignment, levy or process. If an employer or income payor is\nserved with more than one income deduction order pertaining to a single\nemployee pursuant to this section, or with an order issued pursuant to\nthis section and also an execution pursuant to section 5241 of this\narticle, and if the combined total amount of the income to be withheld\nexceeds the limits set forth in subdivision (f) of this section, the\nemployer or income payor shall withhold the maximum amount permitted\nthereby and pay to each creditor that proportion thereof which such\ncreditor's claim bears to the combined total.\n (h) An employer or income payor shall be liable to the creditor for\nfailure to deduct the amounts specified, provided however that deduction\nof the amounts specified by the employer or income payor shall not\nrelieve the debtor of the underlying obligation of support.\n (i) A creditor shall not be required to issue process under section\n5241 of this article prior to obtaining relief pursuant to this section.\n