Provides additional enforcement mechanisms for the collection of spousal or child support

Summary of provisions of bill

Section 1 amends §243 of the DRL giving the court discretion to include payments pursuant to a distributive award or settlement of equitable distribution to the orders which a court may direct the defendant to give security for payments.

Section 2 amends §245 of the DRL and deals with enforcement of judgments or orders in actions for divorce, separation or annulment and grants additional powers to the court for enforcement, including giving the court discretion in using such remedies for enforcement as set forth in the law, rather than the present requirement that the wronged party must attempt and exhaust all remedies before the court can issue an order for civil contempt.

Justification

Under the DRL, in divorce litigation, the court's options to enforce compliance with court orders include requiring the posting of security, sequestration of property, entry of money judgments, income deduction orders, and punishment for civil contempt. Additionally, for enforcement for child support or combined child and spousal support, the Supreme Court may suspend the driving privileges or the State professional and business licenses of an offending party. Despite what appears to be an arsenal of legal remedies upon which to rely when one party defaults in payment of court-ordered obligations, there are numerous restrictions upon the authority of Supreme Court to require individuals in default to honor these orders. Additionally, the DRL creates significant differences between the proof requirements placed upon litigants who seek to enforce orders in Supreme Court as compared to Family Court. These differences create substantial and unwarranted burdens upon a party who seeks to enforce an order directing payment of money which is being violated by a present or former spouse.

When a court order or judgement is violated, and enforcement is sought in Supreme Court, DRL §245 requires the court to first find to be unavailable ALL of the other enforcement remedies set forth in the DRL. This "exhaustion of remedies" requirement is an overly burdensome requirement on the plaintiff and the court. Further, where the occurrence of a violation is contested, at a hearing, the movant must establish that these alternate remedies are unavailable. In many cases where the other party has some assets or income, the exhaustion of remedies requirement can render the contempt remedy all but illusory. While it is true that the remedy of contempt should not be lightly invoked, and should be a penalty of last resort, the existence of other means of enforcement should not be an absolute bar to the contempt remedy, because the time and procedural requirements for

using such other remedies often completely undermine what should be the goal of an enforcement procedure, I.E., prompt relief to the injured party. Thus, while a party may have property which could be sequestered, for example, by an order providing for a forced sale, such a procedure may take months to fully implement. Similarly, a money judgment may be essentially meaningless since the time involved in executing upon a judgment can be so lengthy as to make it essentially of no value to a party who needs previously ordered payments to meet present obligations for housing, clothing, food, or other necessities for his or her own children or self.

Finally, changing DRL §243, which provides for the posting of security by a non-paying party, is necessary because, in its present form, it applies solely to orders for the payment of spousal or child support, and does not authorize the court to use this remedy to ensure the payment of monies as part of an equitable distribution award ordered at the conclusion of a divorce action. As a result, when one party has been ordered to make periodic payments, but fails to do so as required, the court cannot now direct that any security be posted. Where the daily existence of one party is dependent upon another's compliance with a lawful mandate, this legislation, by freeing the dependent party from the DRL §245 exhaustion of remedies requirement, and making the remedy of security available to proceedings to enforce equitable distribution awards, greatly enhances the ability of our citizens to enjoy their lives, and denies the means of avoiding enforcement to any party who purposely ignores his or her court-ordered financial obligations.

Legislative history

2009: A.5979/S.2977 - A. Codes/S. Judi 2007-08: A.3152 - Judiciary Committee 2005-06: A.5861- Judiciary Committee 2003-04: A4286- Judiciary Committee 2001-02: A.7795- Judiciary Committee 1997-98: A.4413-13- (Hochberg)- Passed Assembly 1999-00: A.7034- (Hochberg)- Assembly Codes Committee

Fiscal implications for state and local governments

Some savings to the courts by eliminating unnecessary and time consuming proceedings caused by the "exhaustion of remedies" requirement.

Effective date

Immediately, and applies to all actions currently commenced as well as all judgments or orders previously entered.