2006 New York Code - Special Controlling Provisions; Prior Actions Or Proceedings; New Actions Or Proceedings.



 
    §  236.  Special controlling provisions; prior actions or proceedings;
  new actions or proceedings. Except as otherwise  expressly  provided  in
  this section, the provisions of part A shall be controlling with respect
  to  any  action  or  proceeding commenced prior to the date on which the
  provisions  of  this  section  as  amended  become  effective  and   the
  provisions  of part B shall be controlling with respect to any action or
  proceeding commenced on or after such effective date. Any  reference  to
  this  section  or  the  provisions  hereof  in  any  action, proceeding,
  judgment, order, rule or agreement shall  be  deemed  and  construed  to
  refer  to  either  the  provisions  of part A or part B respectively and
  exclusively, determined as provided in this paragraph  any  inconsistent
  provision of law notwithstanding.
 
                                   PART A
 
                        PRIOR ACTIONS OR PROCEEDINGS
 
    Alimony,  temporary  and  permanent.  1.  Alimony.  In  any  action or
  proceeding brought (1) during  the  lifetime  of  both  parties  to  the
  marriage  to annul a marriage or declare the nullity of a void marriage,
  or (2) for a separation, or (3) for a  divorce,  the  court  may  direct
  either  spouse  to  provide suitably for the support of the other as, in
  the court's discretion, justice requires, having regard to the length of
  time of the marriage, the ability of each spouse to be self  supporting,
  the  circumstances  of  the  case  and  of  the respective parties. Such
  direction may require the payment of a  sum  or  sums  of  money  either
  directly  to  either  spouse  or  to third persons for real and personal
  property and services furnished to either spouse, or for the  rental  of
  or mortgage amortization or interest payments, insurance, taxes, repairs
  or  other carrying charges on premises occupied by either spouse, or for
  both payments to either spouse and to such third persons. Such direction
  shall be effective as of the date of the application therefor,  and  any
  retroactive  amount  of alimony due shall be paid in one sum or periodic
  sums, as the court shall direct,  taking  into  account  any  amount  of
  temporary alimony which has been paid. Such direction may be made in the
  final  judgment  in  such action or proceeding, or by one or more orders
  from time to time before or subsequent to final  judgment,  or  by  both
  such  order or orders and the final judgment. Such direction may be made
  notwithstanding that the parties continue to reside in  the  same  abode
  and notwithstanding that the court refuses to grant the relief requested
  by either spouse (1) by reason of a finding by the court that a divorce,
  annulment  or  judgment  declaring the marriage a nullity had previously
  been granted to either spouse in an action in  which  jurisdiction  over
  the person of the other spouse was not obtained, or (2) by reason of the
  misconduct  of  the  other  spouse,  unless such misconduct would itself
  constitute grounds for separation or divorce, or  (3)  by  reason  of  a
  failure   of   proof  of  the  grounds  of  either  spouse's  action  or
  counterclaim. Any order or judgment made as in this section provided may
  combine in one lump sum any amount payable to either spouse  under  this
  section  with  any  amount  payable  to  either spouse under section two
  hundred forty of this chapter. Upon the application  of  either  spouse,
  upon  such  notice  to  the  other party and given in such manner as the
  court shall direct, the court may annul or modify  any  such  direction,
  whether made by order or by final judgment, or in case no such direction
  shall  have  been  made  in  the final judgment may, with respect to any
  judgment of annulment or  declaring  the  nullity  of  a  void  marriage
  rendered  on  or  after  September  first, nineteen hundred forty or any
  judgment of separation or divorce whenever rendered, amend the  judgment
  by  inserting  such  direction. Subject to the provisions of section two
  hundred forty-four of this chapter, no such  modification  or  annulment
  shall  reduce  or  annul  arrears  accrued  prior  to the making of such
  application  unless the defaulting party shows good cause for failure to
  make application for relief from the judgment or  order  directing  such
  payment  prior  to  the  accrual  of such arrears. Such modification may
  increase such support nunc pro tunc based on newly discovered evidence.
    2. Compulsory financial disclosure. In  all  matrimonial  actions  and
  proceedings  commenced  on  or  after  September first, nineteen hundred
  seventy-five in supreme court in which alimony, maintenance  or  support
  is  in issue and all support proceedings in family court, there shall be
  compulsory disclosure by both  parties  of  their  respective  financial
  states.  No  showing  of  special circumstances shall be required before
  such disclosure is ordered. A sworn statement  of  net  worth  shall  be
  provided  upon receipt of a notice in writing demanding the same, within
  twenty days after the receipt thereof. In the event  said  statement  is
  not  demanded,  it  shall  be filed by each party, within ten days after
  joinder of issue, in the court in which the  procedure  is  pending.  As
  used  in this section, the term net worth shall mean the amount by which
  total assets including income exceed total liabilities  including  fixed
  financial  obligations.  It  shall  include  all  income  and  assets of
  whatsoever kind and nature and wherever situated  and  shall  include  a
  list  of all assets transferred in any manner during the preceding three
  years, or the length of the marriage, whichever  is  shorter;  provided,
  however  that transfers in the routine course of business which resulted
  in an exchange of assets of substantially equivalent value need  not  be
  specifically disclosed where such assets are otherwise identified in the
  statement  of net worth. Noncompliance shall be punishable by any or all
  of the penalties prescribed in section thirty-one hundred twenty-six  of
  the civil practice law and rules, in examination before or during trial.
 
                                   PART B
 
                         NEW ACTIONS OR PROCEEDINGS
 
    Maintenance  and  distributive award. 1. Definitions. Whenever used in
  this part, the  following  terms  shall  have  the  respective  meanings
  hereinafter set forth or indicated:
    a.  The term "maintenance" shall mean payments provided for in a valid
  agreement between the parties or awarded by the court in accordance with
  the provisions of subdivision six of this part,  to  be  paid  at  fixed
  intervals  for  a definite or indefinite period of time, but an award of
  maintenance shall terminate upon the death of either party or  upon  the
  recipient's  valid or invalid marriage, or upon modification pursuant to
  paragraph (b) of subdivision nine of section two hundred  thirty-six  of
  this part or section two hundred forty-eight of this chapter.
    b. The term "distributive award" shall mean payments provided for in a
  valid  agreement between the parties or awarded by the court, in lieu of
  or to supplement, facilitate or effectuate the division or  distribution
  of property where authorized in a matrimonial action, and payable either
  in  a  lump  sum or over a period of time in fixed amounts. Distributive
  awards shall not include payments which are treated as  ordinary  income
  to  the  recipient  under  the  provisions of the United States Internal
  Revenue Code.
    c. The term "marital property" shall mean  all  property  acquired  by
  either or both spouses during the marriage and before the execution of a
  separation  agreement  or  the  commencement  of  a  matrimonial action,
  regardless of the form in which  title  is  held,  except  as  otherwise
  provided  in  agreement  pursuant  to  subdivision  three  of this part.
  Marital property shall not  include  separate  property  as  hereinafter
  defined.
    d. The term separate property shall mean:
    (1) property acquired before marriage or property acquired by bequest,
  devise, or descent, or gift from a party other than the spouse;
    (2) compensation for personal injuries;
    (3)  property  acquired  in  exchange  for or the increase in value of
  separate property, except to the extent that such appreciation is due in
  part to the contributions or efforts of the other spouse;
    (4) property described as separate property by  written  agreement  of
  the parties pursuant to subdivision three of this part.
    e.  The term "custodial parent" shall mean a parent to whom custody of
  a child or children is granted by a valid agreement between the  parties
  or by an order or decree of a court.
    f.  The  term  "child support" shall mean a sum paid pursuant to court
  order or decree by either  or  both  parents  or  pursuant  to  a  valid
  agreement between the parties for care, maintenance and education of any
  unemancipated child under the age of twenty-one years.
    2. Matrimonial actions. Except as provided in subdivision five of this
  part,  the provisions of this part shall be applicable to actions for an
  annulment or dissolution of a marriage, for a divorce, for a separation,
  for a declaration of the nullity of a void marriage, for  a  declaration
  of  the  validity  or  nullity  of  a foreign judgment of divorce, for a
  declaration of the validity or nullity of a marriage, and to proceedings
  to obtain maintenance or a distribution of marital property following  a
  foreign  judgment  of divorce, commenced on and after the effective date
  of this part. Any application which seeks a modification of a  judgment,
  order  or decree made in an action commenced prior to the effective date
  of this part shall be  heard  and  determined  in  accordance  with  the
  provisions of part A of this section.
    3.  Agreement of the parties. An agreement by the parties, made before
  or during the marriage, shall be valid and enforceable in a  matrimonial
  action  if  such agreement is in writing, subscribed by the parties, and
  acknowledged or proven in the manner required to entitle a  deed  to  be
  recorded.  Notwithstanding any other provision of law, an acknowledgment
  of an agreement made before marriage may be executed before  any  person
  authorized to solemnize a marriage pursuant to subdivisions one, two and
  three  of  section eleven of this chapter. Such an agreement may include
  (1) a contract to make a testamentary provision of any kind, or a waiver
  of any right to elect against the provisions of a  will;  (2)  provision
  for  the  ownership,  division  or  distribution of separate and marital
  property; (3) provision for the amount and duration  of  maintenance  or
  other  terms and conditions of the marriage relationship, subject to the
  provisions of section 5-311 of the general obligations law, and provided
  that such terms were fair and reasonable at the time of  the  making  of
  the  agreement  and are not unconscionable at the time of entry of final
  judgment; and  (4)  provision  for  the  custody,  care,  education  and
  maintenance  of  any  child of the parties, subject to the provisions of
  section two hundred forty of this article. Nothing in  this  subdivision
  shall  be  deemed  to affect the validity of any agreement made prior to
  the effective date of this subdivision.
    4. Compulsory financial disclosure.  a. In all matrimonial actions and
  proceedings in which alimony, maintenance or support is in issue,  there
  shall  be  compulsory  disclosure  by  both  parties of their respective
  financial states. No showing of special circumstances shall be  required
  before  such disclosure is ordered. A sworn statement of net worth shall
  be provided upon receipt of a notice  in  writing  demanding  the  same,
  within  twenty  days  after  the  receipt  thereof.  In  the  event said
  statement is not demanded, it shall be filed with the clerk of the court
  by each party, within ten days after joinder of issue, in the  court  in
  which  the  proceeding is pending.   As used in this part, the term "net
  worth" shall mean the amount by  which  total  assets  including  income
  exceed total liabilities including fixed financial obligations. It shall
  include all income and assets of whatsoever kind and nature and wherever
  situated  and  shall  include  a  list  of all assets transferred in any
  manner during the preceding three years, or the length of the  marriage,
  whichever  is  shorter;  provided, however that transfers in the routine
  course  of  business  which  resulted  in  an  exchange  of  assets   of
  substantially  equivalent value need not be specifically disclosed where
  such assets are otherwise identified in the statement of net worth.  All
  such sworn statements of net worth shall be accompanied by a current and
  representative  paycheck  stub  and  the  most  recently filed state and
  federal income tax returns including a copy of the W-2(s) wage  and  tax
  statement(s) submitted with the returns. In addition, both parties shall
  provide information relating to any and all group health plans available
  to them for the provision of care or other medical benefits by insurance
  or  otherwise  for the benefit of the child or children for whom support
  is sought, including all such information  as  may  be  required  to  be
  included  in  a  qualified  medical  child  support  order as defined in
  section six hundred nine of the employee retirement income security  act
  of  1974  (29 USC 1169) including, but not limited to:  (i) the name and
  last known mailing address of each party and of  each  dependent  to  be
  covered  by the order; (ii) the identification and a description of each
  group  health  plan  available  for  the  benefit  or  coverage  of  the
  disclosing  party  and the child or children for whom support is sought;
  (iii) a detailed description of the type of coverage available from each
  group health plan for the potential benefit of each such dependent; (iv)
  the identification of the plan administrator for each such group  health
  plan  and  the  address  of  such  administrator; (v) the identification
  numbers for each such group health plan; and (vi) such other information
  as may be required by the court. Noncompliance shall  be  punishable  by
  any  or  all  of  the penalties prescribed in section thirty-one hundred
  twenty-six of the civil practice law and rules, in examination before or
  during trial.
    b. As  soon  as  practicable  after  a  matrimonial  action  has  been
  commenced,  the  court shall set the date or dates the parties shall use
  for the valuation of each asset. The valuation  date  or  dates  may  be
  anytime  from  the  date  of  commencement  of the action to the date of
  trial.
    5. Disposition of property in certain matrimonial actions.  a.  Except
  where  the  parties have provided in an agreement for the disposition of
  their property pursuant to subdivision three of this part, the court, in
  an action wherein all or part of the relief granted is divorce,  or  the
  dissolution,  annulment or declaration of the nullity of a marriage, and
  in proceedings to obtain a distribution of marital property following  a
  foreign  judgment  of  divorce, shall determine the respective rights of
  the parties in their separate or marital property, and shall provide for
  the disposition thereof in the final judgment.
    b. Separate property shall remain such.
    c.  Marital  property  shall  be  distributed  equitably  between  the
  parties, considering the circumstances of the case and of the respective
  parties.
    d. In determining an equitable disposition of property under paragraph
  c, the court shall consider:
    (1) the income and property of each party at the time of marriage, and
  at the time of the commencement of the action;
    (2)  the  duration  of  the  marriage  and  the age and health of both
  parties;
    (3) the need of a custodial  parent  to  occupy  or  own  the  marital
  residence and to use or own its household effects;
    (4) the loss of inheritance and pension rights upon dissolution of the
  marriage as of the date of dissolution;
    (5) any award of maintenance under subdivision six of this part;
    (6)  any  equitable  claim  to,  interest  in,  or  direct or indirect
  contribution made to the acquisition of such  marital  property  by  the
  party  not  having  title,  including  joint efforts or expenditures and
  contributions  and  services  as  a  spouse,  parent,  wage  earner  and
  homemaker, and to the career or career potential of the other party;
    (7) the liquid or non-liquid character of all marital property;
    (8) the probable future financial circumstances of each party;
    (9)  the impossibility or difficulty of evaluating any component asset
  or any interest in  a  business,  corporation  or  profession,  and  the
  economic  desirability  of  retaining  such asset or interest intact and
  free from any claim or interference by the other party;
    (10) the tax consequences to each party;
    (11) the wasteful dissipation of assets by either spouse;
    (12)  any  transfer  or  encumbrance  made  in  contemplation   of   a
  matrimonial action without fair consideration;
    (13)  any other factor which the court shall expressly find to be just
  and proper.
    e. In any action in which the court shall determine that an  equitable
  distribution  is  appropriate  but would be impractical or burdensome or
  where the distribution of an interest  in  a  business,  corporation  or
  profession would be contrary to law, the court in lieu of such equitable
  distribution  shall make a distributive award in order to achieve equity
  between the parties. The court  in  its  discretion,  also  may  make  a
  distributive   award   to   supplement,   facilitate   or  effectuate  a
  distribution of marital property.
    f. In addition to the disposition of property as set forth above,  the
  court may make such order regarding the use and occupancy of the marital
  home  and  its  household  effects  as  provided  in section two hundred
  thirty-four of this chapter, without regard to the form of ownership  of
  such property.
    g.  In any decision made pursuant to this subdivision, the court shall
  set forth the factors it considered and the reasons for its decision and
  such may not be waived by either party or counsel.
    h. In any decision made pursuant to this subdivision the court  shall,
  where  appropriate,  consider  the effect of a barrier to remarriage, as
  defined in subdivision six of section two hundred  fifty-three  of  this
  article, on the factors enumerated in paragraph d of this subdivision.
    6.  Maintenance.  a.  Except  where  the  parties have entered into an
  agreement pursuant to subdivision  three  of  this  part  providing  for
  maintenance,  in  any  matrimonial  action the court may order temporary
  maintenance or maintenance in such amount as  justice  requires,  having
  regard  for the standard of living of the parties established during the
  marriage, whether the party in whose favor maintenance is granted  lacks
  sufficient  property  and  income  to  provide for his or her reasonable
  needs and whether the other party has sufficient property or  income  to
  provide  for  the reasonable needs of the other and the circumstances of
  the case and of the respective parties. Such order shall be effective as
  of the date of the application therefor, and any retroactive  amount  of
  maintenance  due shall be paid in one sum or periodic sums, as the court
  shall direct, taking into account any amount  of  temporary  maintenance
  which  has  been  paid.  In  determining  the  amount  and  duration  of
  maintenance the court shall consider:
    (1)  the  income  and  property  of  the  respective parties including
  marital property distributed pursuant to subdivision five of this part;
    (2) the duration of the marriage  and  the  age  and  health  of  both
  parties;
    (3) the present and future earning capacity of both parties;
    (4)   the   ability   of  the  party  seeking  maintenance  to  become
  self-supporting and, if applicable, the  period  of  time  and  training
  necessary therefor;
    (5)  reduced  or  lost  lifetime earning capacity of the party seeking
  maintenance as  a  result  of  having  foregone  or  delayed  education,
  training, employment, or career opportunities during the marriage;
    (6)  the  presence of children of the marriage in the respective homes
  of the parties;
    (7) the tax consequences to each party;
    (8) contributions and services of the party seeking maintenance  as  a
  spouse,  parent,  wage earner and homemaker, and to the career or career
  potential of the other party;
    (9) the wasteful dissipation of marital property by either spouse;
    (10)  any  transfer  or  encumbrance  made  in  contemplation   of   a
  matrimonial action without fair consideration; and
    (11)  any other factor which the court shall expressly find to be just
  and proper.
    b. In any decision made pursuant to this subdivision, the court  shall
  set forth the factors it considered and the reasons for its decision and
  such may not be waived by either party or counsel.
    c.  The  court  may  award  permanent  maintenance,  but  an  award of
  maintenance shall terminate upon the death of either party or  upon  the
  recipient's  valid or invalid marriage, or upon modification pursuant to
  paragraph (b) of subdivision nine of section two hundred  thirty-six  of
  this part or section two hundred forty-eight of this chapter.
    d.  In any decision made pursuant to this subdivision the court shall,
  where appropriate, consider the effect of a barrier  to  remarriage,  as
  defined  in  subdivision  six of section two hundred fifty-three of this
  article, on the factors enumerated in paragraph a of this subdivision.
    7. Child support. a. In any matrimonial action, or in  an  independent
  action  for child  support, the court as provided in section two hundred
  forty of this  chapter  shall  order  either  or  both  parents  to  pay
  temporary  child support or child support without requiring a showing of
  immediate or emergency need. The court shall make an order for temporary
  child support notwithstanding that information with  respect  to  income
  and  assets  of  either  or  both parents may be unavailable. Where such
  information is available, the court may  make  an  order  for  temporary
  child  support  pursuant  to  section two hundred forty of this article.
  Such order shall, except as provided for herein, be effective as of  the
  date  of  the  application therefor, and any retroactive amount of child
  support due shall be support arrears/past due support and shall be  paid
  in  one  sum  or  periodic  sums, as the court shall direct, taking into
  account any amount of temporary child support which has  been  paid.  In
  addition,  such  retroactive  child  support shall be enforceable in any
  manner provided by law including, but not limited to, an  execution  for
  support  enforcement  pursuant  to  subdivision (b) of section fifty-two
  hundred forty-one of the civil practice law  and  rules.  When  a  child
  receiving  support  is  a  public  assistance recipient, or the order of
  support is being enforced or is to be enforced pursuant to  section  one
  hundred  eleven-g  of the social services law, the court shall establish
  the amount of retroactive child support and notify the parties that such
  amount shall be enforced by the support collection unit pursuant  to  an
  execution  for support enforcement as provided for in subdivision (b) of
  section fifty-two hundred forty-one of the civil practice law and rules,
  or  in  such periodic payments as would have been authorized had such an
  execution been issued. In such case, the  court  shall  not  direct  the
  schedule  of  repayment  of  retroactive  support.  The  court shall not
  consider the misconduct of either party but shall  make  its  award  for
  child support pursuant to section two hundred forty of this article.
    b. Notwithstanding any other provision of law, any written application
  or  motion  to  the  court  for  the  establishment  of  a child support
  obligation for persons not in receipt of family assistance must  contain
  either  a  request  for  child  support enforcement services which would
  authorize the collection of the  support  obligation  by  the  immediate
  issuance  of an income execution for support enforcement as provided for
  by this chapter, completed  in  the  manner  specified  in  section  one
  hundred  eleven-g  of  the  social services law; or a statement that the
  applicant has applied for or is  in  receipt  of  such  services;  or  a
  statement that the applicant knows of the availability of such services,
  has  declined  them  at this time and where support enforcement services
  pursuant to section one hundred eleven-g of the social services law have
  been declined that the applicant understands that  an  income  deduction
  order may be issued pursuant to subdivision (c) of section five thousand
  two  hundred forty-two of the civil practice law and rules without other
  child support enforcement services and that payment of an administrative
  fee may be required. The court shall provide a copy of any such  request
  for child support enforcement services to the support collection unit of
  the appropriate social services district any time it directs payments to
  be  made  to such support collection unit. Additionally, the copy of any
  such request shall be  accompanied  by  the  name,  address  and  social
  security  number  of  the  parties;  the  date and place of the parties'
  marriage; the name and date of birth of the child or children;  and  the
  name  and  address  of the employers and income payors of the party from
  whom child support is sought. Unless the party receiving  child  support
  has  applied  for  or  is  receiving  such services, the court shall not
  direct such payments to be made  to  the  support  collection  unit,  as
  established in section one hundred eleven-h of the social services law.
    c. The court shall direct that a copy of any child support or combined
  child  and  spousal  support  order  issued by the court on or after the
  first day of October, nineteen hundred ninety-eight, in  any  proceeding
  under  this  section  be  provided  promptly  to the state case registry
  established pursuant  to  subdivision  four-a  of  section  one  hundred
  eleven-b of the social services law.
    8.  Special  relief  in  matrimonial  actions.   a. In any matrimonial
  action the court may order a party to purchase,  maintain  or  assign  a
  policy  of insurance providing benefits for health and hospital care and
  related services for either spouse or children of the  marriage  not  to
  exceed  such  period of time as such party shall be obligated to provide
  maintenance, child support or make payments of a distributive award. The
  court may also order a party to purchase, maintain or assign a policy of
  accident insurance or insurance on the life of  either  spouse,  and  to
  designate  in  the  case of life insurance, either spouse or children of
  the marriage, or in the case of accident insurance, the  insured  spouse
  as irrevocable beneficiaries during a period of time fixed by the court.
  The   obligation   to  provide  such  insurance  shall  cease  upon  the
  termination of the spouse's duty to provide maintenance,  child  support
  or  a  distributive  award.  A  copy  of  such order shall be served, by
  registered mail, on the home office of the insurer specifying  the  name
  and  mailing address of the spouse or children, provided that failure to
  so serve the insurer shall not affect the validity of the order.
    b.  In  any  action where the court has ordered temporary maintenance,
  maintenance, distributive award or child support, the court  may  direct
  that  a  payment  be made directly to the other spouse or a third person
  for real and personal property  and  services  furnished  to  the  other
  spouse, or for the rental or mortgage amortization or interest payments,
  insurances,  taxes,  repairs  or  other  carrying  charges  on  premises
  occupied by the other spouse, or for both payments to the  other  spouse
  and  to  such  third persons. Such direction may be made notwithstanding
  that  the  parties  continue  to  reside   in   the   same   abode   and
  notwithstanding  that the court refuses to grant the relief requested by
  the other spouse.
    c. Any order or judgment made as in this section provided may  combine
  any  amount  payable to either spouse under this section with any amount
  payable to such spouse as child support or  under  section  two  hundred
  forty of this chapter.
    9. Enforcement and modification of orders and judgments in matrimonial
  actions. a. All orders or judgments entered in matrimonial actions shall
  be  enforceable  pursuant  to  section  fifty-two  hundred  forty-one or
  fifty-two hundred forty-two of the civil practice law and rules,  or  in
  any other manner provided by law. Orders or judgments for child support,
  alimony  and  maintenance  shall also be enforceable pursuant to article
  fifty-two of the civil practice law and rules upon a debtor's default as
  such term is defined in paragraph seven of subdivision  (a)  of  section
  fifty-two  hundred  forty-one  of  the civil practice law and rules. The
  establishment  of  a  default  shall  be  subject  to   the   procedures
  established  for  the  determination  of  a  mistake  of fact for income
  executions pursuant to subdivision  (e)  of  section  fifty-two  hundred
  forty-one  of  the  civil  practice  law  and rules. For the purposes of
  enforcement of child  support  orders  or  combined  spousal  and  child
  support  orders  pursuant to section five thousand two hundred forty-one
  of the civil practice law and rules, a  "default"  shall  be  deemed  to
  include  amounts arising from retroactive support. The court may, and if
  a party shall fail or refuse to pay maintenance, distributive  award  or
  child  support  the  court  shall, upon notice and an opportunity to the
  defaulting party to be heard, require the party to furnish a surety,  or
  the  sequestering  and  sale  of assets for the purpose of enforcing any
  award for maintenance, distributive award or child support and  for  the
  payment of reasonable and necessary attorney's fees and disbursements.
    b. Upon application by either party, the court may annul or modify any
  prior  order  or  judgment  as  to  maintenance or child support, upon a
  showing  of  the  recipient's  inability  to  be  self-supporting  or  a
  substantial  change  in  circumstance  or  termination  of child support
  awarded pursuant to section two hundred forty of this article, including
  financial hardship. Where, after the effective  date  of  this  part,  a
  separation  agreement  remains in force no modification of a prior order
  or judgment incorporating the terms of said agreement shall be  made  as
  to maintenance without a showing of extreme hardship on either party, in
  which  event the judgment or order as modified shall supersede the terms
  of the prior agreement and judgment for such period of  time  and  under
  such  circumstances  as the court determines. Provided, however, that no
  modification or annulment shall reduce or annul  any  arrears  of  child
  support  which have accrued prior to the date of application to annul or
  modify any prior order or judgment as to child support. The court  shall
  not  reduce  or annul any arrears of maintenance which have been reduced
  to final judgment pursuant to section two  hundred  forty-four  of  this
  chapter. No other arrears of maintenance which have accrued prior to the
  making of such application shall be subject to modification or annulment
  unless  the  defaulting  party  shows  good  cause  for  failure to make
  application for relief from the judgment or order directing such payment
  prior  to  the  accrual  of such arrears and the facts and circumstances
  constituting good cause  are  set  forth  in  a  written  memorandum  of
  decision.  Such  modification  may increase maintenance or child support
  nunc pro tunc as of the date of application based  on  newly  discovered
  evidence.  Any  retroactive  amount of maintenance, or child support due
  shall, except as provided for herein, be paid in  one  sum  or  periodic
  sums, as the court directs, taking into account any temporary or partial
  payments  which  have been made. Any retroactive amount of child support
  due shall  be  support  arrears/past  due  support.  In  addition,  such
  retroactive child support shall be enforceable in any manner provided by
  law  including, but not limited to, an execution for support enforcement
  pursuant to subdivision (b) of section fifty-two  hundred  forty-one  of
  the  civil  practice  law and rules. When a child receiving support is a
  public assistance recipient, or the order of support is  being  enforced
  or  is  to  be  enforced pursuant to section one hundred eleven-g of the
  social services law, the court shall establish the amount of retroactive
  child support and notify the parties that such amount shall be  enforced
  by  the  support  collection  unit  pursuant to an execution for support
  enforcement as provided for in  subdivision  (b)  of  section  fifty-two
  hundred  forty-one  of  the  civil  practice  law  and rules, or in such
  periodic payments as would have been authorized had  such  an  execution
  been  issued.  In  such case, the court shall not direct the schedule of
  repayment of retroactive support. The  provisions  of  this  subdivision
  shall  not  apply  to a separation agreement made prior to the effective
  date of this part.
    c. Notwithstanding any other provision of law, any written application
  or motion to the court for the modification or enforcement  of  a  child
  support  or combined maintenance and child support order for persons not
  in receipt of family assistance must contain either a request for  child
  support enforcement services which would authorize the collection of the
  support  obligation by the immediate issuance of an income execution for
  support enforcement as provided for by this chapter,  completed  in  the
  manner  specified in section one hundred eleven-g of the social services
  law; or a statement that the applicant has applied for or is in  receipt
  of  such  services;  or  a  statement  that  the  applicant knows of the
  availability of such services, has declined them at this time and  where
  support enforcement services pursuant to section one hundred eleven-g of
  the   social   services  law  have  been  declined  that  the  applicant
  understands that an income deduction order may  be  issued  pursuant  to
  subdivision  (c)  of  section five thousand two hundred forty-two of the
  civil practice law and rules without  other  child  support  enforcement
  services  and that payment of an administrative fee may be required. The
  court shall provide a  copy  of  any  such  request  for  child  support
  enforcement  services  to the support collection unit of the appropriate
  social services district any time it directs payments to be made to such
  support collection unit. Additionally, the copy of such request shall be
  accompanied by the name, address  and  social  security  number  of  the
  parties;  the date and place of the parties' marriage; the name and date
  of birth of the child or children; and  the  name  and  address  of  the
  employers and income payors of the party ordered to pay child support to
  the  other  party.  Unless the party receiving child support or combined
  maintenance and child support has  applied  for  or  is  receiving  such
  services,  the  court  shall  not direct such payments to be made to the
  support collection unit, as established in section one hundred  eleven-h
  of the social services law.
    d. The court shall direct that a copy of any child support or combined
  child  and  spousal  support  order  issued by the court on or after the
  first day of October, nineteen hundred ninety-eight, in  any  proceeding
  under  this  section  be  provided  promptly  to the state case registry
  established  pursuant  to  subdivision  four-a  of  section  one hundred
  eleven-b of the social services law.

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