§ 246 — Persons financially unable to comply with orders or judgments directing the payment of alimony

§ 246. Persons financially unable to comply with orders or judgments\ndirecting the payment of alimony. 1. Any person who, by an order or\njudgment made or entered in an action for divorce, separation, annulment\nor declaration of the nullity of a void marriage or an action for the\nenforcement in this state of a judgment for divorce, separation or\nannulment or declaring the nullity of a void marriage rendered in\nanother state, is directed to make payment of any sum or sums of money\nand against whom an order to punish for a contempt of court has been\nmade pursuant to the provisions of section two hundred forty-five of\nthis chapter or the judiciary law may, if financially unable to comply\nwith the order or judgment to make such payment, upon such notice to\nsuch parties as the court may direct, make application to the court for\nan order relieving him from such payment and such contempt order. The\ncourt, upon the hearing of such application, if satisfied from the\nproofs and evidence offered and submitted that the applicant is\nfinancially unable to make such payment may, upon a showing of good\ncause, until further order of the court, modify the order or judgment to\nmake such payment and relieve him from such contempt order. No such\nmodification shall reduce or annul unpaid sums or installments accrued\nprior to the making of such application unless the defaulting party\nshows good cause for failure to make application for relief from the\njudgement or order directing such payment prior to the accrual of such\narrears. Such modification may increase such support nunc pro tunc\nbased on newly discovered evidence.\n 2. Whenever, upon application to the court by an interested party, it\nappears to the satisfaction of the court that any person, who has been\nrelieved totally or partially from making any such payment pursuant to\nthe provisions of this section, is no longer financially unable to\ncomply with the order or judgment to make such payment, then the court\nmay, upon a showing of good cause, modify or revoke its order relieving\nhim totally or partially from making such payment.\n 3. Any person may assert his financial inability to comply with the\ndirections contained in an order or judgment made or entered in an\naction for divorce, separation, annulment or declaration of the nullity\nof a void marriage or an action for the enforcement in this state of a\njudgment for divorce, separation or annulment or declaring the nullity\nof a void marriage rendered in another state, as a defense in a\nproceeding instituted against him under section two hundred forty-five\nor under the judiciary law to punish him for his failure to comply with\nsuch directions and, if the court, upon the hearing of such contempt\nproceeding, is satisfied from the proofs and evidence offered and\nsubmitted that the defendant is financially unable to comply with such\norder or judgment, it may, in its discretion, until further order of the\ncourt, make an order modifying such order or judgment and denying the\napplication to punish the defendant for contempt. No such modification\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 as of the date of the application\nbased on newly discovered evidence. Any retroactive amount of support\ndue shall be paid in one sum or periodic sums, as the court shall\ndirect, taking into account any amount of temporary support which has\nbeen paid.\n