§ 236 — Special controlling provisions; prior actions or proceedings; new actions or proceedings

New York § 236

• Jurisdiction: New York
• Law DOM: Domestic Relations
• Art. 13: Provisions Applicable to More Than One Type of Matrimonial Action

Text

§ 236. Special controlling provisions; prior actions or proceedings;\nnew actions or proceedings. Except as otherwise expressly provided in\nthis section, the provisions of part A shall be controlling with respect\nto any action or proceeding commenced prior to the date on which the\nprovisions of this section as amended become effective and the\nprovisions of part B shall be controlling with respect to any action or\nproceeding commenced on or after such effective date. Any reference to\nthis section or the provisions hereof in any action, proceeding,\njudgment, order, rule or agreement shall be deemed and construed to\nrefer to either the provisions of part A or part B respectively and\nexclusively, determined as provided in this paragraph any inconsistent\nprovision of law notwithstanding.\n PART A\n PRIOR ACTIONS OR PROCEEDINGS\n Alimony, temporary and permanent. 1. Alimony. In any action or\nproceeding brought (1) during the lifetime of both parties to the\nmarriage to annul a marriage or declare the nullity of a void marriage,\nor (2) for a separation, or (3) for a divorce, the court may direct\neither spouse to provide suitably for the support of the other as, in\nthe court's discretion, justice requires, having regard to the length of\ntime of the marriage, the ability of each spouse to be self supporting,\nthe circumstances of the case and of the respective parties. Such\ndirection may require the payment of a sum or sums of money either\ndirectly to either spouse or to third persons for real and personal\nproperty and services furnished to either spouse, or for the rental of\nor mortgage amortization or interest payments, insurance, taxes, repairs\nor other carrying charges on premises occupied by either spouse, or for\nboth payments to either spouse and to such third persons. Such direction\nshall be effective as of the date of the application therefor, and any\nretroactive amount of alimony due shall be paid in one sum or periodic\nsums, as the court shall direct, taking into account any amount of\ntemporary alimony which has been paid. Such direction may be made in the\nfinal judgment in such action or proceeding, or by one or more orders\nfrom time to time before or subsequent to final judgment, or by both\nsuch order or orders and the final judgment. Such direction may be made\nnotwithstanding that the parties continue to reside in the same abode\nand notwithstanding that the court refuses to grant the relief requested\nby either spouse (1) by reason of a finding by the court that a divorce,\nannulment or judgment declaring the marriage a nullity had previously\nbeen granted to either spouse in an action in which jurisdiction over\nthe person of the other spouse was not obtained, or (2) by reason of the\nmisconduct of the other spouse, unless such misconduct would itself\nconstitute grounds for separation or divorce, or (3) by reason of a\nfailure of proof of the grounds of either spouse's action or\ncounterclaim. Any order or judgment made as in this section provided may\ncombine in one lump sum any amount payable to either spouse under this\nsection with any amount payable to either spouse under section two\nhundred forty of this chapter. Upon the application of either spouse,\nupon such notice to the other party and given in such manner as the\ncourt shall direct, the court may annul or modify any such direction,\nwhether made by order or by final judgment, or in case no such direction\nshall have been made in the final judgment may, with respect to any\njudgment of annulment or declaring the nullity of a void marriage\nrendered on or after September first, nineteen hundred forty or any\njudgment of separation or divorce whenever rendered, amend the judgment\nby inserting such direction. Subject to the provisions of section two\nhundred forty-four of this chapter, no such modification or annulment\nshall reduce or annul arrears accrued prior to the making of such\napplication unless the defaulting party shows good cause for failure to\nmake application for relief from the judgment or order directing such\npayment prior to the accrual of such arrears. Such modification may\nincrease such support nunc pro tunc based on newly discovered evidence.\n 2. Compulsory financial disclosure. In all matrimonial actions and\nproceedings commenced on or after September first, nineteen hundred\nseventy-five in supreme court in which alimony, maintenance or support\nis in issue and all support proceedings in family court, there shall be\ncompulsory disclosure by both parties of their respective financial\nstates. No showing of special circumstances shall be required before\nsuch disclosure is ordered. A sworn statement of net worth shall be\nprovided upon receipt of a notice in writing demanding the same, within\ntwenty days after the receipt thereof. In the event said statement is\nnot demanded, it shall be filed by each party, within ten days after\njoinder of issue, in the court in which the procedure is pending. As\nused in this section, the term net worth shall mean the amount by which\ntotal assets including income exceed total liabilities including fixed\nfinancial obligations. It shall include all income and assets of\nwhatsoever kind and nature and wherever situated and shall include a\nlist of all assets transferred in any manner during the preceding three\nyears, or the length of the marriage, whichever is shorter; provided,\nhowever that transfers in the routine course of business which resulted\nin an exchange of assets of substantially equivalent value need not be\nspecifically disclosed where such assets are otherwise identified in the\nstatement of net worth. Noncompliance shall be punishable by any or all\nof the penalties prescribed in section thirty-one hundred twenty-six of\nthe civil practice law and rules, in examination before or during trial.\n PART B\n NEW ACTIONS OR PROCEEDINGS\n Maintenance and distributive award. 1. Definitions. Whenever used in\nthis part, the following terms shall have the respective meanings\nhereinafter set forth or indicated:\n a. The term "maintenance" shall mean payments provided for in a valid\nagreement between the parties or awarded by the court in accordance with\nthe provisions of subdivisions five-a and six of this part, to be paid\nat fixed intervals for a definite or indefinite period of time, but an\naward of maintenance shall terminate upon the death of either party or\nupon the payee's valid or invalid marriage, or upon modification\npursuant to paragraph b of subdivision nine of this part or section two\nhundred forty-eight of this chapter.\n b. The term "distributive award" shall mean payments provided for in a\nvalid agreement between the parties or awarded by the court, in lieu of\nor to supplement, facilitate or effectuate the division or distribution\nof property where authorized in a matrimonial action, and payable either\nin a lump sum or over a period of time in fixed amounts. Distributive\nawards shall not include payments which are treated as ordinary income\nto the recipient under the provisions of the United States Internal\nRevenue Code.\n c. The term "marital property" shall mean all property acquired by\neither or both spouses during the marriage and before the execution of a\nseparation agreement or the commencement of a matrimonial action,\nregardless of the form in which title is held, except as otherwise\nprovided in agreement pursuant to subdivision three of this part.\nMarital property shall not include separate property as hereinafter\ndefined.\n d. The term separate property shall mean:\n (1) property acquired before marriage or property acquired by bequest,\ndevise, or descent, or gift from a party other than the spouse;\n (2) compensation for personal injuries;\n (3) property acquired in exchange for or the increase in value of\nseparate property, except to the extent that such appreciation is due in\npart to the contributions or efforts of the other spouse;\n (4) property described as separate property by written agreement of\nthe parties pursuant to subdivision three of this part.\n e. The term "custodial parent" shall mean a parent to whom custody of\na child or children is granted by a valid agreement between the parties\nor by an order or decree of a court.\n f. The term "child support" shall mean a sum paid pursuant to court\norder or decree by either or both parents or pursuant to a valid\nagreement between the parties for care, maintenance and education of any\nunemancipated child under the age of twenty-one years.\n 2. Matrimonial actions. a. Except as provided in subdivision five of\nthis part, the provisions of this part shall be applicable to actions\nfor an annulment or dissolution of a marriage, for a divorce, for a\nseparation, for a declaration of the nullity of a void marriage, for a\ndeclaration of the validity or nullity of a foreign judgment of divorce,\nfor a declaration of the validity or nullity of a marriage, and to\nproceedings to obtain maintenance or a distribution of marital property\nfollowing a foreign judgment of divorce, commenced on and after the\neffective date of this part. Any application which seeks a modification\nof a judgment, order or decree made in an action commenced prior to the\neffective date of this part shall be heard and determined in accordance\nwith the provisions of part A of this section.\n b. With respect to matrimonial actions which commence on or after the\neffective date of this paragraph, the plaintiff shall cause to be served\nupon the defendant, simultaneous with the service of the summons, a copy\nof the automatic orders set forth in this paragraph. The automatic\norders shall take effect and be binding upon the plaintiff in a\nmatrimonial action immediately upon the filing of the summons, or\nsummons and complaint, and shall be binding upon the defendant\nimmediately upon the service of the automatic orders with the summons.\nEach automatic order shall remain in full force and effect until the\njudgment of divorce is entered or the action is dismissed, discontinued\nor stayed, whichever shall occur first, unless the order is terminated,\nmodified or amended by further order of the court upon motion of either\nof the parties or upon written agreement between the parties duly\nexecuted and acknowledged. The automatic orders are as follows:\n (1) Neither party shall sell, transfer, encumber, conceal, assign,\nremove or in any way dispose of, without the consent of the other party\nin writing, or by order of the court, any property (including, but not\nlimited to, real estate, personal property, cash accounts, stocks,\nmutual funds, bank accounts, cars and boats) individually or jointly\nheld by the parties, except in the usual course of business, for\ncustomary and usual household expenses or for reasonable attorney's fees\nin connection with this action.\n (2) Neither party shall transfer, encumber, assign, remove, withdraw\nor in any way dispose of any tax deferred funds, stocks or other assets\nheld in any individual retirement accounts, 401K accounts, profit\nsharing plans, Keogh accounts, or any other pension or retirement\naccount, and the parties shall further refrain from applying for or\nrequesting the payment of retirement benefits or annuity payments of any\nkind, without the consent of the other party in writing, or upon further\norder of the court; except that any party who is already in pay status\nmay continue to receive such payments thereunder.\n (3) Neither party shall incur unreasonable debts hereafter, including,\nbut not limited to further borrowing against any credit line secured by\nthe family residence, further encumbrancing any assets, or unreasonably\nusing credit cards or cash advances against credit cards, except in the\nusual course of business or for customary or usual household expenses,\nor for reasonable attorney's fees in connection with this action.\n (4) Neither party shall cause the other party or the children of the\nmarriage to be removed from any existing medical, hospital and dental\ninsurance coverage, and each party shall maintain the existing medical,\nhospital and dental insurance coverage in full force and effect.\n (5) Neither party shall change the beneficiaries of any existing life\ninsurance policies, and each party shall maintain the existing life\ninsurance, automobile insurance, homeowners and renters insurance\npolicies in full force and effect.\n (6) If either party receives notice of a tax lien, foreclosure,\nbankruptcy, or litigation, or the filing of same, or of the lifting of a\nstay in bankruptcy, that could adversely affect the marital estate, that\nparty shall, within ten days after receiving such notice, send written\nnotice of such event to the other party.\n 3. Agreement of the parties. An agreement by the parties, made before\nor during the marriage, shall be valid and enforceable in a matrimonial\naction if such agreement is in writing, subscribed by the parties, and\nacknowledged or proven in the manner required to entitle a deed to be\nrecorded. Notwithstanding any other provision of law, an acknowledgment\nof an agreement made before marriage may be executed before any person\nauthorized to solemnize a marriage pursuant to subdivisions one, two and\nthree of section eleven of this chapter. Such an agreement may include\n(1) a contract to make a testamentary provision of any kind, or a waiver\nof any right to elect against the provisions of a will; (2) provision\nfor the ownership, division or distribution of separate and marital\nproperty; (3) provision for the amount and duration of maintenance or\nother terms and conditions of the marriage relationship, subject to the\nprovisions of section 5-311 of the general obligations law, and provided\nthat such terms were fair and reasonable at the time of the making of\nthe agreement and are not unconscionable at the time of entry of final\njudgment; and (4) provision for the custody, care, education and\nmaintenance of any child of the parties, subject to the provisions of\nsection two hundred forty of this article. Nothing in this subdivision\nshall be deemed to affect the validity of any agreement made prior to\nthe effective date of this subdivision.\n 4. Compulsory financial disclosure. a. In all matrimonial actions and\nproceedings in which alimony, maintenance or support is in issue, there\nshall be compulsory disclosure by both parties of their respective\nfinancial states. No showing of special circumstances shall be required\nbefore such disclosure is ordered. A sworn statement of net worth shall\nbe provided upon receipt of a notice in writing demanding the same,\nwithin twenty days after the receipt thereof. In the event said\nstatement is not demanded, it shall be filed with the clerk of the court\nby each party, within ten days after joinder of issue, in the court in\nwhich the proceeding is pending. As used in this part, the term "net\nworth" shall mean the amount by which total assets including income\nexceed total liabilities including fixed financial obligations. It shall\ninclude all income and assets of whatsoever kind and nature and wherever\nsituated and shall include a list of all assets transferred in any\nmanner during the preceding three years, or the length of the marriage,\nwhichever is shorter; provided, however that transfers in the routine\ncourse of business which resulted in an exchange of assets of\nsubstantially equivalent value need not be specifically disclosed where\nsuch assets are otherwise identified in the statement of net worth. All\nsuch sworn statements of net worth shall be accompanied by a current and\nrepresentative paycheck stub and the most recently filed state and\nfederal income tax returns including a copy of the W-2(s) wage and tax\nstatement(s) submitted with the returns. In addition, both parties shall\nprovide information relating to any and all group health plans available\nto them for the provision of care or other medical benefits by insurance\nor otherwise for the benefit of the child or children for whom support\nis sought, including all such information as may be required to be\nincluded in a qualified medical child support order as defined in\nsection six hundred nine of the employee retirement income security act\nof 1974 (29 USC 1169) including, but not limited to: (i) the name and\nlast known mailing address of each party and of each dependent to be\ncovered by the order; (ii) the identification and a description of each\ngroup health plan available for the benefit or coverage of the\ndisclosing party and the child or children for whom support is sought;\n(iii) a detailed description of the type of coverage available from each\ngroup health plan for the potential benefit of each such dependent; (iv)\nthe identification of the plan administrator for each such group health\nplan and the address of such administrator; (v) the identification\nnumbers for each such group health plan; and (vi) such other information\nas may be required by the court. Noncompliance shall be punishable by\nany or all of the penalties prescribed in section thirty-one hundred\ntwenty-six of the civil practice law and rules, in examination before or\nduring trial.\n b. As soon as practicable after a matrimonial action has been\ncommenced, the court shall set the date or dates the parties shall use\nfor the valuation of each asset. The valuation date or dates may be\nanytime from the date of commencement of the action to the date of\ntrial.\n 5. Disposition of property in certain matrimonial actions. a. Except\nwhere the parties have provided in an agreement for the disposition of\ntheir property pursuant to subdivision three of this part, the court, in\nan action wherein all or part of the relief granted is divorce, or the\ndissolution, annulment or declaration of the nullity of a marriage, and\nin proceedings to obtain a distribution of marital property following a\nforeign judgment of divorce, shall determine the respective rights of\nthe parties in their separate or marital property, and shall provide for\nthe disposition thereof in the final judgment.\n b. Separate property shall remain such.\n c. Marital property shall be distributed equitably between the\nparties, considering the circumstances of the case and of the respective\nparties.\n d. In determining an equitable disposition of property under paragraph\nc, the court shall consider:\n (1) the income and property of each party at the time of marriage, and\nat the time of the commencement of the action;\n (2) the duration of the marriage and the age and health of both\nparties;\n (3) the need of a custodial parent to occupy or own the marital\nresidence and to use or own its household effects;\n (4) the loss of inheritance and pension rights upon dissolution of the\nmarriage as of the date of dissolution;\n (5) the loss of health insurance benefits upon dissolution of the\nmarriage;\n (6) any award of maintenance under subdivision six of this part;\n (7) any equitable claim to, interest in, or direct or indirect\ncontribution made to the acquisition of such marital property by the\nparty not having title, including joint efforts or expenditures and\ncontributions and services as a spouse, parent, wage earner and\nhomemaker, and to the career or career potential of the other party. The\ncourt shall not consider as marital property subject to distribution the\nvalue of a spouse's enhanced earning capacity arising from a license,\ndegree, celebrity goodwill, or career enhancement. However, in arriving\nat an equitable division of marital property, the court shall consider\nthe direct or indirect contributions to the development during the\nmarriage of the enhanced earning capacity of the other spouse;\n (8) the liquid or non-liquid character of all marital property;\n (9) the probable future financial circumstances of each party;\n (10) the impossibility or difficulty of evaluating any component asset\nor any interest in a business, corporation or profession, and the\neconomic desirability of retaining such asset or interest intact and\nfree from any claim or interference by the other party;\n (11) the tax consequences to each party;\n (12) the wasteful dissipation of assets by either spouse;\n (13) any transfer or encumbrance made in contemplation of a\nmatrimonial action without fair consideration;\n (14) whether either party has committed an act or acts of domestic\nviolence, as described in subdivision one of section four hundred\nfifty-nine-a of the social services law, against the other party and the\nnature, extent, duration and impact of such act or acts;\n (15) in awarding the possession of a companion animal, the court shall\nconsider the best interest of such animal. "Companion animal", as used\nin this subparagraph, shall have the same meaning as in subdivision five\nof section three hundred fifty of the agriculture and markets law; and\n (16) any other factor which the court shall expressly find to be just\nand proper.\n e. In any action in which the court shall determine that an equitable\ndistribution is appropriate but would be impractical or burdensome or\nwhere the distribution of an interest in a business, corporation or\nprofession would be contrary to law, the court in lieu of such equitable\ndistribution shall make a distributive award in order to achieve equity\nbetween the parties. The court in its discretion, also may make a\ndistributive award to supplement, facilitate or effectuate a\ndistribution of marital property.\n f. In addition to the disposition of property as set forth above, the\ncourt may make such order regarding the use and occupancy of the marital\nhome and its household effects as provided in section two hundred\nthirty-four of this chapter, without regard to the form of ownership of\nsuch property.\n g. In any decision made pursuant to this subdivision, the court shall\nset forth the factors it considered and the reasons for its decision and\nsuch may not be waived by either party or counsel.\n h. In any decision made pursuant to this subdivision the court shall,\nwhere appropriate, consider the effect of a barrier to remarriage, as\ndefined in subdivision six of section two hundred fifty-three of this\narticle, on the factors enumerated in paragraph d of this subdivision.\n 5-a. Temporary maintenance awards. a. Except where the parties have\nentered into an agreement providing for maintenance pursuant to\nsubdivision three of this part, in any matrimonial action the court,\nupon application by a party, shall make its award for temporary\nmaintenance pursuant to the provisions of this subdivision.\n b. For purposes of this subdivision, the following definitions shall\nbe used:\n (1) "Payor" shall mean the spouse with the higher income.\n (2) "Payee" shall mean the spouse with the lower income.\n (3) "Length of marriage" shall mean the period from the date of\nmarriage until the date of commencement of action.\n (4) "Income" shall mean income as defined in the child support\nstandards act and codified in section two hundred forty of this article\nand section four hundred thirteen of the family court act without\nsubtracting alimony or maintenance actually paid or to be paid to a\nspouse that is a party to the instant action pursuant to subclause (C)\nof clause (vii) of subparagraph five of paragraph (b) of subdivision\none-b of section two hundred forty of this article and subclause (C) of\nclause (vii) of subparagraph five of paragraph (b) of subdivision one of\nsection four hundred thirteen of the family court act and without\nsubtracting spousal support paid pursuant to section four hundred twelve\nof such act.\n (5) "Income cap" shall mean up to and including one hundred\neighty-four thousand dollars of the payor's annual income; provided,\nhowever, beginning March first, two thousand twenty and every two years\nthereafter, the income cap amount shall increase by the sum of the\naverage annual percentage changes in the consumer price index for all\nurban consumers (CPI-U) as published by the United States department of\nlabor bureau of labor statistics for the prior two years multiplied by\nthe then income cap and then rounded to the nearest one thousand\ndollars. The office of court administration shall determine and publish\nthe income cap.\n (6) "Guideline amount of temporary maintenance" shall mean the dollar\namount derived by the application of paragraph c or d of this\nsubdivision.\n (7) "Self-support reserve" shall mean the self-support reserve as\ndefined in the child support standards act and codified in section two\nhundred forty of this article and section four hundred thirteen of the\nfamily court act.\n (8) "Agreement" shall have the same meaning as provided in subdivision\nthree of this part.\n c. Where the payor's income is lower than or equal to the income cap,\nthe court shall determine the guideline amount of temporary maintenance\nas follows:\n (1) Where child support will be paid for children of the marriage and\nwhere the payor as defined in this subdivision is also the non-custodial\nparent pursuant to the child support standards act:\n (a) the court shall subtract twenty-five percent of the payee's income\nfrom twenty percent of the payor's income.\n (b) the court shall then multiply the sum of the payor's income and\nthe payee's income by forty percent.\n (c) the court shall subtract the payee's income from the amount\nderived from clause (b) of this subparagraph.\n (d) the court shall determine the lower of the two amounts derived by\nclauses (a) and (c) of this subparagraph.\n (e) the guideline amount of temporary maintenance shall be the amount\ndetermined by clause (d) of this subparagraph except that, if the amount\ndetermined by clause (d) of this subparagraph is less than or equal to\nzero, the guideline amount of temporary maintenance shall be zero\ndollars.\n (f) temporary maintenance shall be calculated prior to child support\nbecause the amount of temporary maintenance shall be subtracted from the\npayor's income and added to the payee's income as part of the\ncalculation of the child support obligation.\n (2) Where child support will not be paid for children of the marriage,\nor where child support will be paid for children of the marriage but the\npayor as defined in this subdivision is the custodial parent pursuant to\nthe child support standards act:\n (a) the court shall subtract twenty percent of the payee's income from\nthirty percent of the payor's income.\n (b) the court shall then multiply the sum of the payor's income and\nthe payee's income by forty percent.\n (c) the court shall subtract the payee's income from the amount\nderived from clause (b) of this subparagraph.\n (d) the court shall determine the lower of the two amounts derived by\nclauses (a) and (c) of this subparagraph.\n (e) the guideline amount of temporary maintenance shall be the amount\ndetermined by clause (d) of this subparagraph except that, if the amount\ndetermined by clause (d) of this subparagraph is less than or equal to\nzero, the guideline amount of temporary maintenance shall be zero\ndollars.\n (f) if child support will be paid for children of the marriage but the\npayor as defined in this subdivision is the custodial parent pursuant to\nthe child support standards act, temporary maintenance shall be\ncalculated prior to child support because the amount of temporary\nmaintenance shall be subtracted from the payor's income pursuant to this\nsubdivision and added to the payee's income pursuant to this subdivision\nas part of the calculation of the child support obligation.\n d. Where the payor's income exceeds the income cap, the court shall\ndetermine the guideline amount of temporary maintenance as follows:\n (1) the court shall perform the calculations set forth in paragraph c\nof this subdivision for the income of the payor up to and including the\nincome cap; and\n (2) for income exceeding the cap, the amount of additional maintenance\nawarded, if any, shall be within the discretion of the court which shall\ntake into consideration any one or more of the factors set forth in\nsubparagraph one of paragraph h of this subdivision; and\n (3) the court shall set forth the factors it considered and the\nreasons for its decision in writing or on the record. Such decision,\nwhether in writing or on the record, may not be waived by either party\nor counsel.\n e. Notwithstanding the provisions of this subdivision, where the\nguideline amount of temporary maintenance would reduce the payor's\nincome below the self-support reserve for a single person, the guideline\namount of temporary maintenance shall be the difference between the\npayor's income and the self-support reserve. If the payor's income is\nbelow the self-support reserve, there shall be a rebuttable presumption\nthat no temporary maintenance is awarded.\n f. The court shall determine the duration of temporary maintenance by\nconsidering the length of the marriage.\n g. Temporary maintenance shall terminate no later than the issuance of\nthe judgment of divorce or the death of either party, whichever occurs\nfirst.\n h. (1) The court shall order the guideline amount of temporary\nmaintenance up to the income cap in accordance with paragraph c of this\nsubdivision, unless the court finds that the guideline amount of\ntemporary maintenance is unjust or inappropriate, which finding shall be\nbased upon consideration of any one or more of the following factors,\nand adjusts the guideline amount of temporary maintenance accordingly\nbased upon such consideration:\n (a) the age and health of the parties;\n (b) the present or future earning capacity of the parties, including a\nhistory of limited participation in the workforce;\n (c) the need of one party to incur education or training expenses;\n (d) the termination of a child support award during the pendency of\nthe temporary maintenance award when the calculation of temporary\nmaintenance was based upon child support being awarded and which\nresulted in a maintenance award lower than it would have been had child\nsupport not been awarded;\n (e) the wasteful dissipation of marital property, including transfers\nor encumbrances made in contemplation of a matrimonial action without\nfair consideration;\n (f) the existence and duration of a pre-marital joint household or a\npre-divorce separate household;\n (g) acts by one party against another that have inhibited or continue\nto inhibit a party's earning capacity or ability to obtain meaningful\nemployment. Such acts include but are not limited to acts of domestic\nviolence as provided in section four hundred fifty-nine-a of the social\nservices law;\n (h) the availability and cost of medical insurance for the parties;\n (i) the care of children or stepchildren, disabled adult children or\nstepchildren, elderly parents or in-laws provided during the marriage\nthat inhibits a party's earning capacity;\n (j) the tax consequences to each party;\n (k) the standard of living of the parties established during the\nmarriage;\n (l) the reduced or lost earning capacity of the payee as a result of\nhaving forgone or delayed education, training, employment or career\nopportunities during the marriage; and\n (m) any other factor which the court shall expressly find to be just\nand proper.\n (2) Where the court finds that the guideline amount of temporary\nmaintenance is unjust or inappropriate and the court adjusts the\nguideline amount of temporary maintenance pursuant to this paragraph,\nthe court shall set forth, in a written decision or on the record, the\nguideline amount of temporary maintenance, the factors it considered,\nand the reasons that the court adjusted the guideline amount of\ntemporary maintenance. Such decision, whether in writing or on the\nrecord, shall not be waived by either party or counsel.\n (3) Where either or both parties are unrepresented, the court shall\nnot enter a temporary maintenance order unless the court informs the\nunrepresented party or parties of the guideline amount of temporary\nmaintenance.\n i. Nothing contained in this subdivision shall be construed to alter\nthe rights of the parties to voluntarily enter into agreements or\nstipulations as defined in subdivision three of this part which deviate\nfrom the presumptive award of temporary maintenance.\n j. When a payor has defaulted and/or the court is otherwise presented\nwith insufficient evidence to determine income, the court shall order\nthe temporary maintenance award based upon the needs of the payee or the\nstandard of living of the parties prior to commencement of the divorce\naction, whichever is greater. Such order may be retroactively modified\nupward without a showing of change in circumstances upon a showing of\nnewly discovered evidence.\n k. In any action or proceeding for modification of an order of\nmaintenance or alimony existing prior to the effective date of this\nsubdivision, brought pursuant to this article, the temporary maintenance\nguidelines set forth in this subdivision shall not constitute a change\nof circumstances warranting modification of such support order.\n l. In any action or proceeding for modification where the parties have\nentered into an agreement providing for maintenance pursuant to\nsubdivision three of this part entered into prior to the effective date\nof this subdivision, brought pursuant to this article, the temporary\nmaintenance guidelines set forth in this subdivision shall not\nconstitute a change of circumstances warranting modification of such\nsupport order.\n m. In determining temporary maintenance, the court shall consider and\nallocate, where appropriate, the responsibilities of the respective\nspouses for the family's expenses during the pendency of the proceeding.\n n. The temporary maintenance order shall not prejudice the rights of\neither party regarding a post-divorce maintenance award.\n 6. Post-divorce maintenance awards. a. Except where the parties have\nentered into an agreement pursuant to subdivision three of this part\nproviding for maintenance, in any matrimonial action, the court, upon\napplication by a party, shall make its award for post-divorce\nmaintenance pursuant to the provisions of this subdivision.\n b. For purposes of this subdivision, the following definitions shall\nbe used:\n (1) "Payor" shall mean the spouse with the higher income.\n (2) "Payee" shall mean the spouse with the lower income.\n (3) "Income" shall mean:\n (a) income as defined in the child support standards act and codified\nin section two hundred forty of this article and section four hundred\nthirteen of the family court act, without subtracting alimony or\nmaintenance actually paid or to be paid to a spouse that is a party to\nthe instant action pursuant to subclause (C) of clause (vii) of\nsubparagraph five of paragraph (b) of subdivision one-b of section two\nhundred forty of this article and subclause (C) of clause (vii) of\nsubparagraph five of paragraph (b) of subdivision one of section four\nhundred thirteen of the family court act and without subtracting spousal\nsupport paid pursuant to section four hundred twelve of such act; and\n (b) income from income-producing property distributed or to be\ndistributed pursuant to subdivision five of this part.\n (4) "Income cap" shall mean up to and including one hundred\neighty-four thousand dollars of the payor's annual income; provided,\nhowever, beginning March first, two thousand twenty and every two years\nthereafter, the income cap amount shall increase by the sum of the\naverage annual percentage changes in the consumer price index for all\nurban consumers (CPI-U) as published by the United States department of\nlabor bureau of labor statistics for the prior two years multiplied by\nthe then income cap and then rounded to the nearest one thousand\ndollars. The office of court administration shall determine and publish\nthe income cap.\n (5) "Guideline amount of post-divorce maintenance" shall mean the\ndollar amount derived by the application of paragraph c or d of this\nsubdivision.\n (6) "Guideline duration of post-divorce maintenance" shall mean the\ndurational period determined by the application of paragraph f of this\nsubdivision.\n (7) "Post-divorce maintenance guideline obligation" shall mean the\nguideline amount of post-divorce maintenance and the guideline duration\nof post-divorce maintenance.\n (8) "Length of marriage" shall mean the period from the date of\nmarriage until the date of commencement of the action.\n (9) "Self-support reserve" shall mean the self-support reserve as\ndefined in the child support standards act and codified in section two\nhundred forty of this article and section four hundred thirteen of the\nfamily court act.\n (10) "Agreement" shall have the same meaning as provided in\nsubdivision three of this part.\n c. Where the payor's income is lower than or equal to the income cap,\nthe court shall determine the guideline amount of post-divorce\nmaintenance as follows:\n (1) Where child support will be paid for children of the marriage and\nwhere the payor as defined in this subdivision is also the non-custodial\nparent pursuant to the child support standards act:\n (a) the court shall subtract twenty-five percent of the payee's income\nfrom twenty percent of the payor's income.\n (b) the court shall then multiply the sum of the payor's income and\nthe payee's income by forty percent.\n (c) the court shall subtract the payee's income from the amount\nderived from clause (b) of this subparagraph.\n (d) the court shall determine the lower of the two amounts derived by\nclauses (a) and (c) of this subparagraph.\n (e) the guideline amount of post-divorce maintenance shall be the\namount determined by clause (d) of this subparagraph except that, if the\namount determined by clause (d) of this subparagraph is less than or\nequal to zero, the guideline amount of post-divorce maintenance shall be\nzero dollars.\n (f) notwithstanding the provisions of this subdivision, where the\nguideline amount of post-divorce maintenance would reduce the payor's\nincome below the self-support reserve for a single person, the guideline\namount of post-divorce maintenance shall be the difference between the\npayor's income and the self-support reserve. If the payor's income is\nbelow the self-support reserve, there shall be a rebuttable presumption\nthat no post-divorce maintenance is awarded.\n (g) maintenance shall be calculated prior to child support because the\namount of maintenance shall be subtracted from the payor's income and\nadded to the payee's income as part of the calculation of the child\nsupport obligation.\n (2) Where child support will not be paid for children of the marriage,\nor where child support will be paid for children of the marriage but the\npayor as defined in this subdivision is the custodial parent pursuant to\nthe child support standards act:\n (a) the court shall subtract twenty percent of the payee's income from\nthirty percent of the payor's income.\n (b) the court shall then multiply the sum of the payor's income and\nthe payee's income by forty percent.\n (c) the court shall subtract the payee's income from the amount\nderived from clause (b) of this subparagraph.\n (d) the court shall determine the lower of the two amounts derived by\nclauses (a) and (c) of this subparagraph.\n (e) the guideline amount of post-divorce maintenance shall be the\namount determined by clause (d) of this subparagraph except that, if the\namount determined by clause (d) of this subparagraph is less than or\nequal to zero, the guideline amount of post-divorce maintenance shall be\nzero dollars.\n (f) if child support will be paid for children of the marriage but the\npayor as defined in this subdivision is the custodial parent pursuant to\nthe child support standards act, post-divorce maintenance shall be\ncalculated prior to child support because the amount of post-divorce\nmaintenance shall be subtracted from the payor's income pursuant to this\nsubdivision and added to the payee's income pursuant to this subdivision\nas part of the calculation of the child support obligation.\n (g) notwithstanding the provisions of this subdivision, where the\nguideline amount of post-divorce maintenance would reduce the payor's\nincome below the self-support reserve for a single person, the guideline\namount of post-divorce maintenance shall be the difference between the\npayor's income and the self-support reserve. If the payor's income is\nbelow the self-support reserve, there shall be a rebuttable presumption\nthat no post-divorce maintenance is awarded.\n d. Where the payor's income exceeds the income cap, the court shall\ndetermine the guideline amount of post-divorce maintenance as follows:\n (1) the court shall perform the calculations set forth in paragraph c\nof this subdivision for the income of payor up to and including the\nincome cap; and\n (2) for income exceeding the cap, the amount of additional maintenance\nawarded, if any, shall be within the discretion of the court which shall\ntake into consideration any one or more of the factors set forth in\nsubparagraph one of paragraph e of this subdivision; and\n (3) the court shall set forth the factors it considered and the\nreasons for its decision in writing or on the record. Such decision,\nwhether in writing or on the record, may not be waived by either party\nor counsel.\n e. (1) The court shall order the post-divorce maintenance guideline\nobligation up to the income cap in accordance with paragraph c of this\nsubdivision, unless the court finds that the post-divorce maintenance\nguideline obligation is unjust or inappropriate, which finding shall be\nbased upon consideration of any one or more of the following factors,\nand adjusts the post-divorce maintenance guideline obligation\naccordingly based upon such consideration:\n (a) the age and health of the parties;\n (b) the present or future earning capacity of the parties, including a\nhistory of limited participation in the workforce;\n (c) the need of one party to incur education or training expenses;\n (d) the termination of a child support award before the termination of\nthe maintenance award when the calculation of maintenance was based upon\nchild support being awarded which resulted in a maintenance award lower\nthan it would have been had child support not been awarded;\n (e) the wasteful dissipation of marital property, including transfers\nor encumbrances made in contemplation of a matrimonial action without\nfair consideration;\n (f) the existence and duration of a pre-marital joint household or a\npre-divorce separate household;\n (g) acts by one party against another that have inhibited or continue\nto inhibit a party's earning capacity or ability to obtain meaningful\nemployment. Such acts include but are not limited to acts of domestic\nviolence as provided in section four hundred fifty-nine-a of the social\nservices law;\n (h) the availability and cost of medical insurance for the parties;\n (i) the care of children or stepchildren, disabled adult children or\nstepchildren, elderly parents or in-laws provided during the marriage\nthat inhibits a party's earning capacity;\n (j) the tax consequences to each party;\n (k) the standard of living of the parties established during the\nmarriage;\n (l) the reduced or lost earning capacity of the payee as a result of\nhaving forgone or delayed education, training, employment or career\nopportunities during the marriage;\n (m) the equitable distribution of marital property and the income or\nimputed income on the assets so distributed;\n (n) the contributions and services of the payee as a spouse, parent,\nwage earner and homemaker and to the career or career potential of the\nother party; and\n (o) any other factor which the court shall expressly find to be just\nand proper.\n (2) Where the court finds that the post-divorce maintenance guideline\nobligation is unjust or inappropriate and the court adjusts the\npost-divorce maintenance guideline obligation pursuant to this\nparagraph, the court shall set forth, in a written decision or on the\nrecord, the unadjusted post-divorce maintenance guideline obligation,\nthe factors it considered, and the reasons that the court adjusted the\npost-divorce maintenance obligation. Such decision shall not be waived\nby either party or counsel.\n f. The duration of post-divorce maintenance may be determined as\nfollows:\n (1) The court may determine the duration of post-divorce maintenance\nin accordance with the following advisory schedule:\nLength of the marriage Percent of the length of the\n marriage for which\n maintenance will be payable\n0 up to and including 15 years 15% - 30%\nMore than 15 up to and including 30% - 40%\n20 years\nMore than 20 years 35% - 50%\n (2) In determining the duration of post-divorce maintenance, whether\nor not the court utilizes the advisory schedule, it shall consider the\nfactors listed in subparagraph one of paragraph e of this subdivision\nand shall set forth, in a written decision or on the record, the factors\nit considered. Such decision shall not be waived by either party or\ncounsel. Nothing herein shall prevent the court from awarding\nnon-durational maintenance in an appropriate case.\n (3) Notwithstanding the provisions of subparagraph one of this\nparagraph, post-divorce maintenance shall terminate upon the death of\neither party or upon the payee's valid or invalid marriage, or upon\nmodification pursuant to paragraph b of subdivision nine of this part or\nsection two hundred forty-eight of this article.\n (4) Notwithstanding the provisions of subparagraph one of this\nparagraph, when determining duration of post-divorce maintenance, the\ncourt shall take into consideration anticipated retirement assets,\nbenefits, and retirement eligibility age of both parties if\nascertainable at the time of decision. If not ascertainable at the time\nof decision, the actual full or partial retirement of the payor with\nsubstantial diminution of income shall be a basis for a modification of\nthe award.\n g. Where either or both parties are unrepresented, the court shall not\nenter a maintenance order or judgment unless the court informs the\nunrepresented party or parties of the post-divorce maintenance guideline\nobligation.\n h. Nothing contained in this subdivision shall be construed to alter\nthe rights of the parties to voluntarily enter into validly executed\nagreements or stipulations which deviate from the post-divorce\nmaintenance guideline obligation.\n i. When a payor has defaulted and/or the court makes a finding at the\ntime of trial that it was presented with insufficient evidence to\ndetermine income, the court shall order the post-divorce maintenance\nbased upon the needs of the payee or the standard of living of the\nparties prior to commencement of the divorce action, whichever is\ngreater. Such order may be retroactively modified upward without a\nshowing of change in circumstances upon a showing of substantial newly\ndiscovered evidence.\n j. Post-divorce maintenance may be modified pursuant to paragraph b of\nsubdivision nine of this part.\n k. In any action or proceeding for modification of an order of\nmaintenance or alimony existing prior to the effective date of the\nchapter of the laws of two thousand fifteen which amended this\nsubdivision, brought pursuant to this article, the guidelines for\npost-divorce maintenance set forth in this subdivision shall not\nconstitute a change of circumstances warranting modification of such\nsupport order.\n l. In any action or proceeding for modification where the parties have\nentered into an agreement providing for maintenance pursuant to\nsubdivision three of this part entered into prior to the effective date\nof the chapter of the laws of two thousand fifteen which amended this\nsubdivision, brought pursuant to this article, the guidelines for\npost-divorce maintenance set forth in this subdivision shall not\nconstitute a change of circumstances warranting modification of such\nagreement.\n m. In any action or proceeding for modification of an order of\nmaintenance or alimony existing prior to the effective date of the\nchapter of the laws of two thousand fifteen which amended this\nsubdivision, brought pursuant to this article, the guidelines for\npost-divorce maintenance set forth in paragraphs c, d and e of this\nsubdivision shall not apply.\n n. In any action or proceeding for modification where the parties have\nentered into an agreement providing for maintenance pursuant to\nsubdivision three of this part entered into prior to the effective date\nof the chapter of the laws of two thousand fifteen which amended this\nsubdivision, brought pursuant to this article, the guidelines for\npost-divorce maintenance set forth in paragraphs c, d and e of this\nsubdivision shall not apply.\n o. In any decision made pursuant to this subdivision the court shall,\nwhere appropriate, consider the effect of a barrier to remarriage, as\ndefined in subdivision six of section two hundred fifty-three of this\narticle, on the factors enumerated in paragraph e of this subdivision.\n 6-a. Law revision commission study. a. The legislature hereby finds\nand declares it to be the policy of the state that it is necessary to\nachieve equitable outcomes when families divorce and it is important to\nensure that the economic consequences of a divorce are fairly shared by\ndivorcing couples. Serious concerns have been raised that the\nimplementation of New York state's maintenance laws have not resulted in\nequitable results. Maintenance is often not granted and where it is\ngranted, the results are inconsistent and unpredictable. This raises\nserious concerns about the ability of our current maintenance laws to\nachieve equitable and fair outcomes.\n The legislature further finds a comprehensive review of the provisions\nof our state's maintenance laws should be undertaken. It has been thirty\nyears since the legislature significantly reformed our state's divorce\nlaws by enacting equitable distribution of marital property and\nintroduced the concept of maintenance to replace alimony. Concerns that\nthe implementation of our maintenance laws have not resulted in\nequitable results compel the need for a review of these laws.\n b. The law revision commission is hereby directed to:\n (1) review and assess the economic consequences of divorce on the\nparties;\n (2) review the maintenance laws of the state, including the way in\nwhich they are administered to determine the impact of these laws on\npost marital economic disparities, and the effectiveness of such laws\nand their administration in achieving the state's policy goals and\nobjectives of ensuring that the economic consequences of a divorce are\nfairly and equitably shared by the divorcing couple; and\n (3) make recommendations to the legislature, including such proposed\nrevisions of such laws as it determines necessary to achieve these goals\nand objectives.\n c. The law revision commission shall make a preliminary report to the\nlegislature and the governor of its findings, conclusions, and any\nrecommendations not later than nine months from the effective date of\nthis subdivision, and a final report of its findings, conclusions and\nrecommendations not later than December thirty-first, two thousand\neleven.\n 7. Child support. a. In any matrimonial action, or in an independent\naction for child support, the court as provided in section two hundred\nforty of this chapter shall order either or both parents to pay\ntemporary child support or child support without requiring a showing of\nimmediate or emergency need. The court shall make an order for temporary\nchild support notwithstanding that information with respect to income\nand assets of either or both parents may be unavailable. Where such\ninformation is available, the court may make an order for temporary\nchild support pursuant to section two hundred forty of this article.\nSuch order shall, except as provided for herein, be effective as of the\ndate of the application therefor, and any retroactive amount of child\nsupport due shall be support arrears/past due support and shall be paid\nin one sum or periodic sums, as the court shall direct, taking into\naccount any amount of temporary child support which has been paid. In\naddition, such retroactive child support shall be enforceable in any\nmanner provided by law including, but not limited to, an execution for\nsupport enforcement pursuant to subdivision (b) of section fifty-two\nhundred forty-one of the civil practice law and rules. When a child\nreceiving support is a public assistance recipient, or the order of\nsupport is being enforced or is to be enforced pursuant to section one\nhundred eleven-g of the social services law, the court shall establish\nthe amount of retroactive child support and notify the parties that such\namount shall be enforced by the support collection unit pursuant to an\nexecution for support enforcement as provided for in subdivision (b) of\nsection fifty-two hundred forty-one of the civil practice law and rules,\nor in such periodic payments as would have been authorized had such an\nexecution been issued. In such case, the court shall not direct the\nschedule of repayment of retroactive support. The court shall not\nconsider the misconduct of either party but shall make its award for\nchild support pursuant to section two hundred forty of this article.\n b. Notwithstanding any other provision of law, any written application\nor motion to the court for the establishment of a child support\nobligation for persons not in receipt of family assistance must contain\neither a request for child support enforcement services which would\nauthorize the collection of the support obligation by the immediate\nissuance of an income execution for support enforcement as provided for\nby this chapter, completed in the manner specified in section one\nhundred eleven-g of the social services law; or a statement that the\napplicant has applied for or is in receipt of such services; or a\nstatement that the applicant knows of the availability of such services,\nhas declined them at this time and where support enforcement services\npursuant to section one hundred eleven-g of the social services law have\nbeen declined that the applicant understands that an income deduction\norder may be issued pursuant to subdivision (c) of section five thousand\ntwo hundred forty-two of the civil practice law and rules without other\nchild support enforcement services and that payment of an administrative\nfee may be required. The court shall provide a copy of any such request\nfor child support enforcement services to the support collection unit of\nthe appropriate social services district any time it directs payments to\nbe made to such support collection unit. Additionally, the copy of any\nsuch request shall be accompanied by the name, address and social\nsecurity number of the parties; the date and place of the parties'\nmarriage; the name and date of birth of the child or children; and the\nname and address of the employers and income payors of the party from\nwhom child support is sought. Unless the party receiving child support\nhas applied for or is receiving such services, the court shall not\ndirect such payments to be made to the support collection unit, as\nestablished in section one hundred eleven-h of the social services law.\n c. The court shall direct that a copy of any child support or combined\nchild and spousal support order issued by the court on or after the\nfirst day of October, nineteen hundred ninety-eight, in any proceeding\nunder this section be provided promptly to the state case registry\nestablished pursuant to subdivision four-a of section one hundred\neleven-b of the social services law.\n d. Any child support order made by the court in any proceeding under\nthe provisions of this section shall include, on its face, a notice\nprinted or typewritten in a size equal to at least eight point bold type\ninforming the parties of their right to seek a modification of the child\nsupport order upon a showing of:\n (i) a substantial change in circumstances; or\n (ii) that three years have passed since the order was entered, last\nmodified or adjusted; or\n (iii) there has been a change in either party's gross income by\nfifteen percent or more since the order was entered, last modified, or\nadjusted;\nhowever, if the parties have specifically opted out of subparagraph (ii)\nor (iii) of this paragraph in a validly executed agreement or\nstipulation, then that basis to seek modification does not apply.\n 8. Special relief in matrimonial actions. a. In any matrimonial\naction the court may order a party to purchase, maintain or assign a\npolicy of insurance providing benefits for health and hospital care and\nrelated services for either spouse or children of the marriage not to\nexceed such period of time as such party shall be obligated to provide\nmaintenance, child support or make payments of a distributive award. The\ncourt may also order a party to purchase, maintain or assign a policy of\naccident insurance or insurance on the life of either spouse, and to\ndesignate in the case of life insurance, either spouse or children of\nthe marriage, or in the case of accident insurance, the insured spouse\nas irrevocable beneficiaries during a period of time fixed by the court.\nThe obligation to provide such insurance shall cease upon the\ntermination of the spouse's duty to provide maintenance, child support\nor a distributive award. A copy of such order shall be served, by\nregistered mail, on the home office of the insurer specifying the name\nand mailing address of the spouse or children, provided that failure to\nso serve the insurer shall not affect the validity of the order.\n b. In any action where the court has ordered temporary maintenance,\nmaintenance, distributive award or child support, the court may direct\nthat a payment be made directly to the other spouse or a third person\nfor real and personal property and services furnished to the other\nspouse, or for the rental or mortgage amortization or interest payments,\ninsurances, taxes, repairs or other carrying charges on premises\noccupied by the other spouse, or for both payments to the other spouse\nand to such third persons. Such direction may be made notwithstanding\nthat the parties continue to reside in the same abode and\nnotwithstanding that the court refuses to grant the relief requested by\nthe other spouse.\n c. Any order or judgment made as in this section provided may combine\nany amount payable to either spouse under this section with any amount\npayable to such spouse as child support or under section two hundred\nforty of this chapter.\n 9. Enforcement and modification of orders and judgments in matrimonial\nactions. a. All orders or judgments entered in matrimonial actions shall\nbe enforceable pursuant to section fifty-two hundred forty-one or\nfifty-two hundred forty-two of the civil practice law and rules, or in\nany other manner provided by law. Orders or judgments for child support,\nalimony and maintenance shall also be enforceable pursuant to article\nfifty-two of the civil practice law and rules upon a debtor's default as\nsuch term is defined in paragraph seven of subdivision (a) of section\nfifty-two hundred forty-one of the civil practice law and rules. The\nestablishment of a default shall be subject to the procedures\nestablished for the determination of a mistake of fact for income\nexecutions pursuant to subdivision (e) of section fifty-two hundred\nforty-one of the civil practice law and rules. For the purposes of\nenforcement of child support orders or combined spousal and child\nsupport orders pursuant to section five thousand two hundred forty-one\nof the civil practice law and rules, a "default" shall be deemed to\ninclude amounts arising from retroactive support. The court may, and if\na party shall fail or refuse to pay maintenance, distributive award or\nchild support the court shall, upon notice and an opportunity to the\ndefaulting party to be heard, require the party to furnish a surety, or\nthe sequestering and sale of assets for the purpose of enforcing any\naward for maintenance, distributive award or child support and for the\npayment of reasonable and necessary attorney's fees and disbursements.\n b. (1) Upon application by either party, the court may annul or modify\nany prior order or judgment made after trial as to maintenance, upon a\nshowing of the payee's inability to be self-supporting or upon a showing\nof a substantial change in circumstance, including financial hardship or\nupon actual full or partial retirement of the payor if the retirement\nresults in a substantial change in financial circumstances. Where, after\nthe effective date of this part, an agreement remains in force, no\nmodification of an order or judgment incorporating the terms of said\nagreement shall be made as to maintenance without a showing of extreme\nhardship on either party, in which event the judgment or order as\nmodified shall supersede the terms of the prior agreement and judgment\nfor such period of time and under such circumstances as the court\ndetermines. The court shall not reduce or annul any arrears of\nmaintenance which have been reduced to final judgment pursuant to\nsection two hundred forty-four of this article. No other arrears of\nmaintenance which have accrued prior to the making of such application\nshall be subject to modification or annulment unless the defaulting\nparty shows good cause for failure to make application for relief from\nthe judgment or order directing such payment prior to the accrual of\nsuch arrears and the facts and circumstances constituting good cause are\nset forth in a written memorandum of decision. Such modification may\nincrease maintenance nunc pro tunc as of the date of application based\non newly discovered evidence. Any retroactive amount of maintenance due\nshall, except as provided for herein, be paid in one sum or periodic\nsums, as the court directs, taking into account any temporary or partial\npayments which have been made. The provisions of this subdivision shall\nnot apply to a separation agreement made prior to the effective date of\nthis part.\n (2) (i) The court may modify an order of child support, including an\norder incorporating without merging an agreement or stipulation of the\nparties, upon a showing of a substantial change in circumstances.\nIncarceration shall not be considered voluntary unemployment and shall\nnot be a bar to finding a substantial change in circumstances.\n (ii) In addition, unless the parties have specifically opted out of\nthe following provisions in a validly executed agreement or stipulation\nentered into between the parties, the court may modify an order of child\nsupport where:\n (A) three years have passed since the order was entered, last modified\nor adjusted; or\n (B) there has been a change in either party's gross income by fifteen\npercent or more since the order was entered, last modified, or adjusted.\nA reduction in income shall not be considered as a ground for\nmodification unless it was involuntary and the party has made diligent\nattempts to secure employment commensurate with his or her education,\nability, and experience.\n (iii) No modification or annulment shall reduce or annul any arrears\nof child support which have accrued prior to the date of application to\nannul or modify any prior order or judgment as to child support. Such\nmodification may increase child support nunc pro tunc as of the date of\napplication based on newly discovered evidence. Any retroactive amount\nof child support due shall, except as provided for in this subparagraph,\nbe paid in one sum or periodic sums, as the court directs, taking into\naccount any temporary or partial payments which have been made. Any\nretroactive amount of child support due shall be support arrears/past\ndue support. In addition, such retroactive child support shall be\nenforceable in any manner provided by law including, but not limited to,\nan execution for support enforcement pursuant to subdivision (b) of\nsection fifty-two hundred forty-one of the civil practice law and rules.\nWhen a child receiving support is a public assistance recipient, or the\norder of support is being enforced or is to be enforced pursuant to\nsection one hundred eleven-g of the social services law, the court shall\nestablish the amount of retroactive child support and notify the parties\nthat such amount shall be enforced by the support collection unit\npursuant to an immediate execution for support enforcement as provided\nfor by this chapter, or in such periodic payments as would have been\nauthorized had such an execution been issued. In such case, the court\nshall not direct the schedule of repayment of retroactive support.\n c. Notwithstanding any other provision of law, any written application\nor motion to the court for the modification or enforcement of a child\nsupport or combined maintenance and child support order for persons not\nin receipt of family assistance must contain either a request for child\nsupport enforcement services which would authorize the collection of the\nsupport obligation by the immediate issuance of an income execution for\nsupport enforcement as provided for by this chapter, completed in the\nmanner specified in section one hundred eleven-g of the social services\nlaw; or a statement that the applicant has applied for or is in receipt\nof such services; or a statement that the applicant knows of the\navailability of such services, has declined them at this time and where\nsupport enforcement services pursuant to section one hundred eleven-g of\nthe social services law have been declined that the applicant\nunderstands that an income deduction order may be issued pursuant to\nsubdivision (c) of section five thousand two hundred forty-two of the\ncivil practice law and rules without other child support enforcement\nservices and that payment of an administrative fee may be required. The\ncourt shall provide a copy of any such request for child support\nenforcement services to the support collection unit of the appropriate\nsocial services district any time it directs payments to be made to such\nsupport collection unit. Additionally, the copy of such request shall be\naccompanied by the name, address and social security number of the\nparties; the date and place of the parties' marriage; the name and date\nof birth of the child or children; and the name and address of the\nemployers and income payors of the party ordered to pay child support to\nthe other party. Unless the party receiving child support or combined\nmaintenance and child support has applied for or is receiving such\nservices, the court shall not direct such payments to be made to the\nsupport collection unit, as established in section one hundred eleven-h\nof the social services law.\n d. The court shall direct that a copy of any child support or combined\nchild and spousal support order issued by the court on or after the\nfirst day of October, nineteen hundred ninety-eight, in any proceeding\nunder this section be provided promptly to the state case registry\nestablished pursuant to subdivision four-a of section one hundred\neleven-b of the social services law.\n