2010 New York Code
DOM - Domestic Relations
Article 13 - (230 - 255) PROVISIONS APPLICABLE TO MORE THAN ONE TYPE OF MATRIMONIAL ACTION
236 - 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.
    * NB Effective until October 12, 2010
    * 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 subdivisions five-a and  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.
    * NB Effective October 12, 2010

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. a. 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.
    b.  With respect to matrimonial actions which commence on or after the
  effective date of this paragraph, the plaintiff shall cause to be served
  upon the defendant, simultaneous with the service of the summons, a copy
  of the automatic orders set  forth  in  this  paragraph.  The  automatic
  orders  shall  be  binding  upon  the  plaintiff in a matrimonial action
  immediately upon the filing of the summons, or  summons  and  complaint,
  and  upon  the  defendant  immediately upon the service of the automatic
  orders with the summons. The automatic orders shall remain in full force
  and effect  during  the  pendency  of  the  action,  unless  terminated,
  modified  or amended by further order of the court upon motion of either
  of the parties or  upon  written  agreement  between  the  parties  duly
  executed and acknowledged. The automatic orders are as follows:
    (1)  Neither  party  shall  sell, transfer, encumber, conceal, assign,
  remove or in any way dispose of, without the consent of the other  party
  in  writing,  or by order of the court, any property (including, but not

limited to, real  estate,  personal  property,  cash  accounts,  stocks,
  mutual  funds,  bank  accounts,  cars and boats) individually or jointly
  held by the parties,  except  in  the  usual  course  of  business,  for
  customary and usual household expenses or for reasonable attorney's fees
  in connection with this action.
    (2)  Neither  party shall transfer, encumber, assign, remove, withdraw
  or in any way dispose of any tax deferred funds, stocks or other  assets
  held  in  any  individual  retirement  accounts,  401K  accounts, profit
  sharing plans, Keogh  accounts,  or  any  other  pension  or  retirement
  account,  and  the  parties  shall  further refrain from applying for or
  requesting the payment of retirement benefits or annuity payments of any
  kind, without the consent of the other party in writing, or upon further
  order of the court; except that any party who is already in  pay  status
  may continue to receive such payments thereunder.
    (3) Neither party shall incur unreasonable debts hereafter, including,
  but  not limited to further borrowing against any credit line secured by
  the family residence, further encumbrancing any assets, or  unreasonably
  using  credit cards or cash advances against credit cards, except in the
  usual course of business or for customary or usual  household  expenses,
  or for reasonable attorney's fees in connection with this action.
    (4)  Neither  party shall cause the other party or the children of the
  marriage to be removed from any existing medical,  hospital  and  dental
  insurance  coverage, and each party shall maintain the existing medical,
  hospital and dental insurance coverage in full force and effect.
    (5) Neither party shall change the beneficiaries of any existing  life
  insurance  policies,  and  each  party  shall maintain the existing life
  insurance,  automobile  insurance,  homeowners  and  renters   insurance
  policies in full force and effect.
    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)  the  loss  of  health  insurance benefits upon dissolution of the
  marriage;
    (6) any award of maintenance under subdivision six of this part;
    (7) 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;
    (8) the liquid or non-liquid character of all marital property;
    (9) the probable future financial circumstances of each party;
    (10) 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;
    (11) the tax consequences to each party;
    (12) the wasteful dissipation of assets by either spouse;
    (13)  any  transfer  or  encumbrance  made  in  contemplation   of   a
  matrimonial action without fair consideration;
    (14)  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.
    * 5-a.  Temporary maintenance awards. 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 shall
  make its award for temporary maintenance pursuant to the  provisions  of
  this subdivision.
    b.  For  purposes of this subdivision, the following definitions shall
  be used:
    (1) "Payor" shall mean the spouse with the higher income.
    (2) "Payee" shall mean the spouse with the lower income.
    (3) "Length of marriage" shall  mean  the  period  from  the  date  of
  marriage until the date of commencement of action.
    (4) "Income" shall mean:

(a)  income as defined in the child support standards act and codified
  in section two hundred forty of this article and  section  four  hundred
  thirteen of the family court act; and
    (b)  income  from income producing property to be distributed pursuant
  to subdivision five of this part.
    (5) "Income cap" shall mean up to and including five hundred  thousand
  dollars  of  the  payor's  annual  income;  provided, however, beginning
  January  thirty-first,  two  thousand  twelve  and   every   two   years
  thereafter,  the  payor's  annual  income  amount  shall increase by the
  product of the average annual percentage changes in the  consumer  price
  index  for all urban consumers (CPI-U) as published by the United States
  department of labor bureau of labor statistics for the two  year  period
  rounded  to  the  nearest  one  thousand  dollars.  The  office of court
  administration shall determine and publish the income cap.
    (6) "Guideline amount of temporary maintenance"  shall  mean  the  sum
  derived by the application of paragraph c of this subdivision.
    (7)  "Guideline  duration" shall mean the durational period determined
  by the application of paragraph d of this subdivision.
    (8) "Presumptive  award"  shall  mean  the  guideline  amount  of  the
  temporary  maintenance  award  for  the  guideline duration prior to the
  court's  application  of  any  adjustment   factors   as   provided   in
  subparagraph one of paragraph e of this subdivision.
    (9)  "Self-support  reserve"  shall  mean  the self-support reserve as
  defined in the child support standards act and codified in  section  two
  hundred  forty  of this article and section four hundred thirteen of the
  family court act.
    c. The  court  shall  determine  the  guideline  amount  of  temporary
  maintenance  in  accordance  with the provisions of this paragraph after
  determining the income of the parties:
    (1) Where the payor's income is up to and including the income cap:
    (a) the court shall subtract twenty percent of the income of the payee
  from thirty percent of the income up to the income cap of the payor.
    (b) the court shall then multiply the sum of the payor's income up  to
  and  including  the  income  cap  and all of the payee's income by forty
  percent.
    (c) the court shall subtract the income of the payee from  the  amount
  derived from clause (b) of this subparagraph.
    (d)  the  guideline amount of temporary maintenance shall be the lower
  of the amounts determined by clauses (a) and (c) of  this  subparagraph;
  if the amount determined by clause (c) of this subparagraph is less than
  or equal to zero, the guideline amount shall be zero dollars.
    (2) Where the income of the payor exceeds the income cap:
    (a)  the  court  shall  determine  the  guideline  amount of temporary
  maintenance for that portion of the payor's income that  is  up  to  and
  including   the  income  cap  according  to  subparagraph  one  of  this
  paragraph, and, for the payor's income in excess of the income cap,  the
  court  shall  determine  any  additional  guideline  amount of temporary
  maintenance through consideration of the following factors:
    (i) the length of the marriage;
    (ii) the substantial differences in the incomes of the parties;
    (iii) the standard of living of the  parties  established  during  the
  marriage;
    (iv) the age and health of the parties;
    (v) the present and future earning capacity of the parties;
    (vi) the need of one party to incur education or training expenses;
    (vii) the wasteful dissipation of marital property;
    (viii)  the  transfer  or  encumbrance  made  in  contemplation  of  a
  matrimonial action without fair consideration;

(ix) the existence and duration of a pre-marital joint household or  a
  pre-divorce separate household;
    (x)  acts by one party against another that have inhibited or continue
  to inhibit a party's earning capacity or ability  to  obtain  meaningful
  employment.  Such  acts  include but are not limited to acts of domestic
  violence as provided in section four hundred fifty-nine-a of the  social
  services law;
    (xi) the availability and cost of medical insurance for the parties;
    (xii)  the  care  of  the  children  or  stepchildren,  disabled adult
  children or stepchildren, elderly parents or in-laws that has  inhibited
  or  continues to inhibit a party's earning capacity or ability to obtain
  meaningful employment;
    (xiii) the inability of one party to obtain meaningful employment  due
  to age or absence from the workforce;
    (xiv)  the  need  to  pay  for exceptional additional expenses for the
  child or children, including, but not limited to,  schooling,  day  care
  and medical treatment;
    (xv) the tax consequences to each party;
    (xvi) marital property subject to distribution pursuant to subdivision
  five of this part;
    (xvii)  the  reduced  or  lost  earning  capacity of the party seeking
  temporary  maintenance  as  a  result  of  having  foregone  or  delayed
  education,  training,  employment  or  career  opportunities  during the
  marriage;
    (xviii) the contributions and services of the party seeking  temporary
  maintenance  as  a  spouse, parent, wage earner and homemaker and to the
  career or career potential of the other party; and
    (xix) any other factor which the court shall expressly find to be just
  and proper.
    (b) In any decision made pursuant  to  this  subparagraph,  the  court
  shall  set  forth  the  factors  it  considered  and the reasons for its
  decision.   Such written order may not be  waived  by  either  party  or
  counsel.
    (3)  Notwithstanding  the  provisions  of  this  paragraph,  where the
  guideline amount of  temporary  maintenance  would  reduce  the  payor's
  income   below  the  self-support  reserve  for  a  single  person,  the
  presumptive amount of the  guideline  amount  of  temporary  maintenance
  shall  be the difference between the payor's income and the self-support
  reserve. If the payor's income is below the self-support reserve,  there
  is a rebuttable presumption that no temporary maintenance is awarded.
    d.  The  court  shall  determine  the  guideline duration of temporary
  maintenance  by  considering  the  length  of  the  marriage.  Temporary
  maintenance  shall  terminate  upon  the  issuance of the final award of
  maintenance or the death of either party, whichever occurs first.
    e. (1) The court  shall  order  the  presumptive  award  of  temporary
  maintenance  in  accordance with paragraphs c and d of this subdivision,
  unless  the  court  finds  that  the  presumptive  award  is  unjust  or
  inappropriate and adjusts the presumptive award of temporary maintenance
  accordingly based upon consideration of the following factors:
    (a)  the  standard  of  living  of  the parties established during the
  marriage;
    (b) the age and health of the parties;
    (c) the earning capacity of the parties;
    (d) the need of one party to incur education or training expenses;
    (e) the wasteful dissipation of marital property;
    (f) the transfer or encumbrance made in contemplation of a matrimonial
  action without fair consideration;

(g) the existence and duration of a pre-marital joint household  or  a
  pre-divorce separate household;
    (h)  acts by one party against another that have inhibited or continue
  to inhibit a party's earning capacity or ability  to  obtain  meaningful
  employment.  Such  acts  include but are not limited to acts of domestic
  violence as provided in section four hundred fifty-nine-a of the  social
  services law;
    (i) the availability and cost of medical insurance for the parties;
    (j)  the care of the children or stepchildren, disabled adult children
  or stepchildren, elderly  parents  or  in-laws  that  has  inhibited  or
  continues  to  inhibit  a  party's earning capacity or ability to obtain
  meaningful employment;
    (k) the inability of one party to obtain meaningful employment due  to
  age or absence from the workforce;
    (l)  the need to pay for exceptional additional expenses for the child
  or children, including, but not limited  to,  schooling,  day  care  and
  medical treatment;
    (m) the tax consequences to each party;
    (n)  marital  property subject to distribution pursuant to subdivision
  five of this part;
    (o) the  reduced  or  lost  earning  capacity  of  the  party  seeking
  temporary  maintenance  as  a  result  of  having  foregone  or  delayed
  education, training,  employment  or  career  opportunities  during  the
  marriage;
    (p)  the  contributions  and  services  of the party seeking temporary
  maintenance as a spouse, parent, wage earner and homemaker  and  to  the
  career or career potential of the other party; and
    (q)  any  other factor which the court shall expressly find to be just
  and proper.
    (2) Where the court finds that  the  presumptive  award  of  temporary
  maintenance  is  unjust  or  inappropriate  and  the  court  adjusts the
  presumptive award of temporary maintenance pursuant to  this  paragraph,
  the  court  shall  set  forth,  in  a  written  order, the amount of the
  unadjusted presumptive award of temporary maintenance,  the  factors  it
  considered,  and  the  reasons  that  the court adjusted the presumptive
  award of temporary maintenance. Such written order shall not  be  waived
  by either party or counsel.
    (3)  Where  either  or both parties are unrepresented, the court shall
  not enter a temporary maintenance order unless the  unrepresented  party
  or  parties  have  been  informed  of the presumptive award of temporary
  maintenance.
    f. A validly executed agreement  or  stipulation  voluntarily  entered
  into between the parties in an action commenced after the effective date
  of this subdivision presented to the court for incorporation in an order
  shall  include a provision stating that the parties have been advised of
  the provisions of this  subdivision,  and  that  the  presumptive  award
  provided  for  therein  results  in  the  correct  amount  of  temporary
  maintenance. In the event that such agreement  or  stipulation  deviates
  from  the  presumptive  award of temporary maintenance, the agreement or
  stipulation must specify the  amount  that  such  presumptive  award  of
  temporary  maintenance  would  have  been and the reason or reasons that
  such agreement or stipulation does  not  provide  for  payment  of  that
  amount.  Such  provision  may  not be waived by either party or counsel.
  Nothing contained in this subdivision shall be construed  to  alter  the
  rights  of  the  parties  to  voluntarily  enter  into  validly executed
  agreements or stipulations which deviate from the presumptive  award  of
  temporary  maintenance  provided  such agreements or stipulations comply
  with the provisions of  this  subdivision.  The  court  shall,  however,

retain   discretion   with   respect   to  temporary,  and  post-divorce
  maintenance  awards  pursuant  to  this   section.   Any   court   order
  incorporating a validly executed agreement or stipulation which deviates
  from  the presumptive award of temporary maintenance shall set forth the
  court's reasons for such deviation.
    g. When a party has defaulted and/or the court is otherwise  presented
  with  insufficient  evidence  to determine gross income, the court shall
  order the temporary maintenance award based upon the needs of the  payee
  or  the  standard  of living of the parties prior to commencement of the
  divorce action, whichever is greater. Such order  may  be  retroactively
  modified  upward  without  a  showing  of change in circumstances upon a
  showing of newly discovered or obtained evidence.
    h. In any action  or  proceeding  for  modification  of  an  order  of
  maintenance  or  alimony  existing  prior  to the effective date of this
  subdivision, brought pursuant to this article, the temporary maintenance
  guidelines set forth in this subdivision shall not constitute  a  change
  of circumstances warranting modification of such support order.
    i.  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 this subdivision.
    * NB Effective October 12, 2010
    * 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;

(11)  the  loss  of  health insurance benefits upon dissolution of the
  marriage; and
    (12)  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.
    * NB Effective until October 12, 2010
    * 6. Post-divorce maintenance awards. 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
  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 length of the marriage;
    (3) the age and health of both parties;
    (4) the present and future earning capacity of both parties;
    (5) the need of one party to incur education or training expenses;
    (6) the existence and duration of a pre-marital joint household  or  a
  pre-divorce separate household;
    (7)  acts by one party against another that have inhibited or continue
  to inhibit a party's earning capacity or ability  to  obtain  meaningful
  employment.  Such  acts  include but are not limited to acts of domestic
  violence as provided in section four hundred fifty-nine-a of the  social
  services law;
    (8)   the   ability   of  the  party  seeking  maintenance  to  become
  self-supporting and, if applicable, the  period  of  time  and  training
  necessary therefor;
    (9)  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;
    (10)  the presence of children of the marriage in the respective homes
  of the parties;
    (11) the care of the children or stepchildren, disabled adult children
  or stepchildren, elderly  parents  or  in-laws  that  has  inhibited  or
  continues to inhibit a party's earning capacity;
    (12) the inability of one party to obtain meaningful employment due to
  age or absence from the workforce;

(13)  the  need  to  pay  for  exceptional additional expenses for the
  child/children, including but not limited to, schooling,  day  care  and
  medical treatment;
    (14) the tax consequences to each party;
    (15) the equitable distribution of marital property;
    (16)  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;
    (17) the wasteful dissipation of marital property by either spouse;
    (18)   the   transfer  or  encumbrance  made  in  contemplation  of  a
  matrimonial action without fair consideration;
    (19) the loss of health insurance benefits  upon  dissolution  of  the
  marriage,  and  the  availability  and cost of medical insurance for the
  parties; and
    (20) 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 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.
    * NB Effective October 12, 2010
    6-a.  Law  revision  commission study. a. The legislature hereby finds
  and declares it to be the policy of the state that it  is  necessary  to
  achieve  equitable outcomes when families divorce and it is important to
  ensure that the economic consequences of a divorce are fairly shared  by
  divorcing   couples.   Serious   concerns  have  been  raised  that  the
  implementation of New York state's maintenance laws have not resulted in
  equitable results. Maintenance is often not  granted  and  where  it  is
  granted,  the  results  are  inconsistent and unpredictable. This raises
  serious concerns about the ability of our current  maintenance  laws  to
  achieve equitable and fair outcomes.
    The legislature further finds a comprehensive review of the provisions
  of our state's maintenance laws should be undertaken. It has been thirty
  years  since  the legislature significantly reformed our state's divorce
  laws  by  enacting  equitable  distribution  of  marital  property   and
  introduced  the concept of maintenance to replace alimony. Concerns that
  the  implementation  of  our  maintenance  laws  have  not  resulted  in
  equitable results compel the need for a review of these laws.
    b. The law revision commission is hereby directed to:
    (1)  review  and  assess  the  economic consequences of divorce on the
  parties;
    (2) review the maintenance laws of the state,  including  the  way  in
  which  they  are  administered  to determine the impact of these laws on
  post marital economic disparities, and the effectiveness  of  such  laws
  and  their  administration  in  achieving  the  state's policy goals and
  objectives of ensuring that the economic consequences of a  divorce  are
  fairly and equitably shared by the divorcing couple; and
    (3)  make  recommendations to the legislature, including such proposed
  revisions of such laws as it determines necessary to achieve these goals
  and objectives.

c. The law revision commission shall make a preliminary report to  the
  legislature  and  the  governor  of  its  findings, conclusions, and any
  recommendations not later than nine months from the  effective  date  of
  this  subdivision,  and  a final report of its findings, conclusions and
  recommendations  not  later  than  December  thirty-first,  two thousand
  eleven.
    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.
    * d. Any child support order made by the court in any proceeding under
  the  provisions  of  this  section  shall include, on its face, a notice
  printed or typewritten in a size equal to at least eight point bold type
  informing the parties of their right to seek a modification of the child
  support order upon a showing of:
    (i) a substantial change in circumstances; or
    (ii) that three years have passed since the order  was  entered,  last
  modified or adjusted; or
    (iii)  there  has  been  a  change  in  either party's gross income by
  fifteen percent or more since the order was entered, last  modified,  or
  adjusted;
  however, if the parties have specifically opted out of subparagraph (ii)
  or   (iii)  of  this  paragraph  in  a  validly  executed  agreement  or
  stipulation, then that basis to seek modification does not apply.
    * NB Effective October 13, 2010
    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.
    * NB Effective until October 13, 2010
    * b.  (1)  Upon  application  by  either party, the court may annul or
  modify any prior order or judgment as to maintenance, 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. 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 article. 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 nunc pro tunc as of the date of
  application based on newly discovered evidence. Any  retroactive  amount
  of  maintenance 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. The provisions of
  this subdivision shall not apply to a separation agreement made prior to
  the effective date of this part.
    (2) (i) The court may modify an order of child support,  including  an
  order  incorporating  without merging an agreement or stipulation of the
  parties, upon a  showing  of  a  substantial  change  in  circumstances.
  Incarceration  shall  not  be  a  bar to finding a substantial change in
  circumstances  provided  such  incarceration  is  not  the   result   of
  non-payment  of  a  child  support  order,  or  an  offense  against the
  custodial parent or child who is the subject of the order or judgment.
    (ii) In addition, unless the parties have specifically  opted  out  of
  the  following provisions in a validly executed agreement or stipulation
  entered into between the parties, the court may modify an order of child
  support where:
    (A) three years have passed since the order was entered, last modified
  or adjusted; or
    (B) there has been a change in either party's gross income by  fifteen
  percent or more since the order was entered, last modified, or adjusted.
  A  reduction  in  income  shall  not  be  considered  as  a  ground  for
  modification unless it was involuntary and the party has  made  diligent

attempts  to  secure  employment commensurate with his or her education,
  ability, and experience.
    (iii)  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. Such
  modification may increase child support nunc pro tunc as of the date  of
  application  based  on newly discovered evidence. Any retroactive amount
  of child support due shall, except as provided for in this subparagraph,
  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 immediate execution for support enforcement  as  provided
  for  by  this  chapter,  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.
    * NB Effective October 13, 2010
    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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