Relates to providing additional enforcement mechanisms for collection of spousal or child support

Title of bill

An act to amend the domestic relations law, in relation to providing additional enforcement mechanisms for collection of spousal or child support

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of his Matrimonial Practice Advisory and Rules Committee.

This measure would amend D.R.L. § 245 to eliminate the requirement that other enforcement remedies be exhausted before contempt can be sought against a person who fails to pay child support, spousal support or combined child and spousal support pursuant to a court order in a matrimonial proceeding.

Even though Family Court and Supreme Court often have concurrent jurisdiction over support, the Family Court Act does not require a party to exhaust remedies before asking for contempt for failure to pay support. In contrast, D.R.L. § 245 expressly prohibits a party from seeking contempt without first exhausting other remedies. To exhaust a remedy can take months or even longer. For example, if a money judgment is obtained for the amount due, it may take some months to enforce the judgment. To exhaust every remedy could mean delay after delay for the families who need the support for their immediate needs. This ability to delay the case in Supreme Court works to the detriment of the non-monied spouse, the custodial parent, and children while a divorce proceeding is ongoing unless the Supreme Court refers the case to Family Court where the exhaustion of remedies requirements do not apply or unless a party seeks post-judgment relief in Family Court and not Supreme Court. It allows parties who owe support to delay further, knowing that contempt remedies for enforcement are a last resort.

Incarceration will continue to be a remedy of last resort. This measure would not alter the court's current ability to utilize all remedies of enforcement including setting a purge amount, income execution, money judgment, requiring posting an undertaking and making an order of sequestration, after a finding of contempt.

Inability to pay will continue to be a defense to a finding of contempt. Furthermore, as required under existing law, indigent obligors defending claims of contempt and possible imprisonment would continue to be entitled to assigned counsel.

Such a measure was introduced in 2009-10 (A. 5979 (Weinstein), S. 2977 (Sampson)), which would have amended D.R.L. § 245 to delete the requirement for exhaustion of remedies and also amended D.R.L. § 243 to allow the court to require posting of security to ensure payment of equitable distribution awards as well as child and spouse support (see http://www.assembly.state.nv.us/leg/?bn=AO5979&term=2009). Although we support the change to D.R.L. § 243 as well, we believe the amendment to D.R.L. § 245 is of great significance. While we recognize that the contempt remedy is not always effective, contempt is a powerful tool, and there is no reason why the Supreme Court should not have the same resources at its disposal as the Family Court.

This measure, which would have no fiscal impact upon the State, would take effect immediately and apply to all actions whenever commenced as well as all judgments or orders previously entered.

2015-16 LEGISLATIVE HISTORY :

Senate 5189 (Senator Bonacic) (Passed) Assembly 7253 (M. of A. Weinstein) (reported referred to Codes)