What's happening
This bill strengthens requirements for child support agreements, making noncompliant sections void and requiring detailed court findings for deviations.
Why it matters
Invalidates Noncompliant Agreements. If any part of a child support agreement, stipulation, or court order does not meet all statutory requirements (such as proper advisement or detailed reasoning for deviations), those sections—and any directly connected provisions—are automatically void as soon as an issue is raised or a court finds noncompliance. This creates immediate legal consequences and can impact other intertwined parts of the agreement (e.g., custody or property arrangements tied to child support terms).
Triggers Immediate Judicial Review and Temporary Orders. Upon a finding of noncompliance, courts must issue a temporary child support order and schedule a hearing for a new (“de novo”) determination. This ensures that children continue to receive financial support during the legal process rather than waiting until a new final order is set.
Limits Retroactive Defenses and Clarifies Jurisdiction. The new rules prevent parties from using technical noncompliance as a defense for past non-payment of child support—liabilities stand until the compliance issue is formally raised. The bill also clarifies that either family or supreme court can address these issues, unless the supreme court has exclusive jurisdiction, making the enforcement process more flexible and responsive.
Increases Transparency and Judicial Accountability. Courts are now required to explicitly state their reasons for approving any deviation from standard child support guidelines when incorporating agreements into orders. This enhances transparency, limits “rubber-stamping” of private agreements, and provides a clearer record for appeals or future modifications.
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Who cares
Parents paying child support
The bill would allow noncompliant support provisions to be voided but would not excuse unpaid support owed before the compliance issue was raised in court or identified by a judge, whichever occurred first.
Parents receiving child support
Courts finding noncompliance would have to issue temporary support orders and hold hearings to determine support anew.
Family Court and Supreme Court judges
The bill would establish procedures for handling noncompliant agreements and require Family Court to dismiss proceedings without prejudice when intertwined provisions involve matters other than child support.
Matrimonial and family-law attorneys
For agreements entered into on or after the effective date, noncompliant child support provisions and directly intertwined provisions requiring recalculation could be voided, subject to the Family Court dismissal rule.
Headline styles
Clarify Child Support Agreements
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Referred to judiciary
- Delivered to assembly
- Passed senateVote 58–0
- Advanced to third reading
- 2nd report cal.
- 1st report cal.300
- Referred to judiciary
- Returned to senate
- Died in assembly
- Referred to judiciary
- Delivered to assembly
- Passed senateVote 62–0
Show 4 earlier actions
- Advanced to third reading
- 2nd report cal.
- 1st report cal.1071
- Referred to judiciary
Full text
3 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
6168
2019-2020 Regular Sessions
IN SENATE
May 21, 2019
Introduced by Sen. HOYLMAN -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary
AN ACT to amend the family court act and the domestic relations law, in relation to agreements and stipulations of child support
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Paragraph (h) of subdivision 1 of section 413 of the family court act, as amended by chapter 41 of the laws of 1992, is amended to read as follows:
(h) (1) A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include the following:
(i) a provision stating that the parties have been advised of the provisions of this subdivision; and
(ii) a provision stating that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded.
(2) In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount.
(3) Such provision may not be waived by either party or counsel.
(4) 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 basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph. The court shall, however, retain discretion with respect to child support pursuant to this section.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10896-01-9
S. 6168 2
(5) Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation.
(6) If a court of competent jurisdiction finds that sections relating to child support in any agreement, stipulation or court order fail to comply with any of the provisions of this paragraph, such sections shall be deemed void as of the date that any of the parties raises this failure to comply in a pleading or motion or as of the date that a court of competent jurisdiction makes a finding of the failure to comply, whichever is earlier. Any sections of an agreement, stipulation or court order that are so directly connected or intertwined with a section deemed void that they necessarily must be recalculated therewith shall also be deemed void as of the same earlier date. Provided, however, that the provisions of this subparagraph shall be subject to the terms of subparagraph eight of this paragraph.
(7) If a court of competent jurisdiction finds that an agreement, stipulation or court order fails to comply with any of the provisions of this paragraph, the court shall issue a temporary order of child support and schedule a hearing to determine the final child support order. The final determination of child support shall be made pursuant to this section de novo and shall be effective as of the date that any of the parties raises the failure to comply with any of the provisions of this paragraph in a pleading or motion or a court of competent jurisdiction makes a finding of the failure to comply, whichever is earlier.
(8) If the family court finds that sections of an agreement, stipulation or court order other than those relating to child support are directly connected or intertwined with a section that relates to child support that the court has found fails to comply with this paragraph, it shall dismiss the proceeding without prejudice.
(9) The provisions of this paragraph shall not constitute a defense to non-payment of a child support obligation prior to the date that any of the parties raises the failure to comply in a pleading or motion or a court of competent jurisdiction makes a finding of the failure to comply, whichever is earlier.
(10) For the purposes of this section, a court of competent jurisdiction shall be either the family court or the supreme court, notwithstanding the court in which the agreement, stipulation or order was initiated, unless the supreme court has retained exclusive jurisdiction to enforce or modify the agreement, stipulation or order.
§ 2. Paragraph (h) of subdivision 1-b of section 240 of the domestic relations law, as amended by chapter 41 of the laws of 1992, is amended to read as follows:
(h) (1) A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include the following:
(i) a provision stating that the parties have been advised of the provisions of this subdivision[,]; and
(ii) a provision stating that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded.
(2) In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount.
S. 6168 3
(3) Such provision may not be waived by either party or counsel.
(4) 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 basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph. The court shall, however, retain discretion with respect to child support pursuant to this section.
(5) Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation.
(6) If a court of competent jurisdiction finds that sections relating to child support in any agreement, stipulation or court order fail to comply with any of the provisions of this paragraph, such sections shall be deemed void as of the date that any of the parties raises this failure to comply in a pleading or motion or as of the date that a court of competent jurisdiction makes a finding of the failure to comply, whichever is earlier. Any sections of an agreement, stipulation or court order that are so directly connected or intertwined with a section deemed void that they necessarily must be recalculated therewith shall also be deemed void as of the same earlier date. Provided, however, that the provisions of this subparagraph shall be subject to the terms of subparagraph eight of this paragraph.
(7) If a court of competent jurisdiction finds that an agreement, stipulation or court order fails to comply with any of the provisions of this paragraph, the court shall issue a temporary order of child support and schedule a hearing to determine the final child support order. The final determination of child support shall be made pursuant to this section de novo and shall be effective as of the date that any of the parties raises the failure to comply with any of the provisions of this paragraph in a pleading or motion or a court of competent jurisdiction makes a finding of the failure to comply, whichever is earlier.
(8) If the family court finds that sections of an agreement, stipulation or court order other than those relating to child support are directly connected or intertwined with a section that relates to child support that the court has found fails to comply with this paragraph, it shall dismiss the proceeding without prejudice.
(9) The provisions of this paragraph shall not constitute a defense to non-payment of a child support obligation prior to the date that any of the parties raises the failure to comply in a pleading or motion or a court of competent jurisdiction makes a finding of the failure to comply, whichever is earlier.
(10) For the purposes of this section, a court of competent jurisdiction shall be either the family court or the supreme court, notwithstanding the court in which the agreement, stipulation or order was initiated, unless the supreme court has retained exclusive jurisdiction to enforce or modify the agreement, stipulation or order.
§ 3. This act shall take effect on the ninetieth day after it shall have become a law and shall apply to agreements and stipulations entered into on or after such effective date.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the family court act and the domestic relations law, in relation to agreements and stipulations of 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 Family Court Advisory and Rules Committee.
Section 413(1)(h) of the Family Court Act and section 240(1-b)(h) of the Domestic Relations Law provide three important protections for children when their parents enter into agreements and stipulations for the payment of child support. Such agreements and stipulations must state that the parties were advised of the provisions of the Child Support Standards Act (CSSA), and that the "basic child support obligation" (application of the CSSA percentages to the parties' combined parental income) would "presumptively result in the correct amount of child support to be awarded." Where an agreement or stipulation varies from the basic child support obligation, a statement also must be included as to what the presumptive amount would have been and why deviation from that amount is appropriate. These protections are not waivable by the parties or their attorneys. All four Judicial Departments have held that agreements not in compliance with these requirements are invalid and unenforceable. See David v. Cruz, 103 A.D.3d 494 (1st Dept., 2013); Jefferson v. Jefferson, 21 A.D.3d 879 (2nd Dept., 2005); Spooner v. Spooner, 154 A.D.3d 1158 (3rd Dept., 2017); Panzarella v. Panzarella, 106 A.D.3d 1527 (4th Dept., 2013). However, they have not agree d on the procedures to be followed and the remedies for noncompliance with these requirements. The instant measure would fill this gap.
Read the full memo (1,019 words)
This measure would amend both Family Court Act § 413(1)(h) and Domestic Relations Law § 240(1-b)(h) to provide that if an agreement or stipu- lation fails to comply with any of the three provisions of the CSSA, the non-CSSA-compliant provisions must be deemed void as of the earlier of the date that one of the parties alleged noncompliance in a pleading or motion or the date the court finds that noncompliance. This is consist- ent with the Appellate Division's decision in. Clark v. Liska, 263 A.D.2d 640, (3d Dept., 1999), which treated a motion to vacate a stipu- lation for failing to comply with these requirements as a prospective modification of the parties' obligations. Noting that retroactive vaca- tur of the agreement would negatively affect the accumulated child support arrears owed by defendant, cancellation of which is generally prohibited, the court affirmed the modification date as the date of the application. See also Luisi v. Luisi, 6 A.D.3d 398 (2d Dept., 2004); Matter of B.J.G. v. MD.G., 29 Misc.3d 670 Sup.Ct., Nassau Co., 2010). Cf, Jefferson v. Jefferson, 21 A.D.3d 879, (2d Dept., 2005) (noncompli- ance with CSSA rendered agreement invalid and unenforceable; matter remitted for new determination of child support retroactive to the original date of the agreement).
Further, this measure requires that, upon a finding of noncompliance, the court must schedule a hearing to determine an appropriate amount of child support as of the earlier of the date the noncompliance had been asserted in a pleading or a motion or the date of the court's finding of noncompliance. Concomitantly, the measure provides that the noncompli- ance with the CSSA may not be asserted as a defense to non-payment of child support in violation of an agreement or stipulation for a period prior to assertion of noncompliance in a motion or pleading or judicial determination of noncompliance, whichever was earlier.
At the same time, the measure recognizes that there are instances when child support provisions that do not comply with the CSSA are so intert- wined with a non-child support provision that voiding the child support provisions would also result in the inappropriate invalidation of non- child support provisions. See, Cimons v. Cimons, 53 A.D.3d 125 (2nd Dept., 2008). Therefore the measure provides that if Family Court deter- mines that there are intertwined provisions over which it has no juris- diction, e.g., equitable distribution, it must dismiss the petition in order to allow the parties to return to Supreme Court.
Finally, the measure provides that unless Supreme Court has retained exclusive jurisdiction to enforce or modify an agreement, Family Court would have subject matter jurisdiction to review, and, where necessary, set a new child support obligation in cases in which a divorce judgment did not conform to the CSSA. See J.Gallet and M.Fine, Spouse and Child Support in New York § 13:2 (Feb., 2018 Update). While the Third Depart- ment has held that Family Court has the authority to make such an order, (Hardman v. Coleman, 154 A.D.3d 1146 (3rd Dept., 2017), Du Bois v. Swisher, 306 A.D.2d 610 (3rd Dept., 2003)),the First and Second Depart- ments have decided that in the absence of statutory authority, Family Court has no jurisdiction to make a new order of support where it finds that the underlying order did not comply with the CSSA. See Byrne v. Javino, 145 A.D.3d 718 (2nd Dept., 2016); Georgette D. W. v. Gary N.R., 134 A.D.3d 406 (1st Dept., 2015); Castaneda v. Castaneda, 132 A.D.3d 667 (2nd Dept., 2015); Savini v. Burgaleta, 34 A.D.3d 686 (2d Dept., 2006). If a Family Court in one of these jurisdictions finds that a support order is unenforceable, it has no choice but to dismiss the petition and direct the parties to return to Supreme Court, an often time-consuming and expensive option. And since the order is invalid, Family Court cannot even direct a support obligor to pay arrears that may have accrued under the order to the custodial parent.
In light of the ambiguity surrounding the law in this area and, in particular, the varying approaches taken by the courts regarding the treatment of agreements and stipulations deemed not to comply with the CSSA, the instant measure will provide needed clarification. In so doing, it will spur greater compliance with the CSSA, thus fulfilling the clear legislative intent that children be provided with appropriate support.
This measure would take effect 90 days after becoming law.
2017-18 LEGISLATIVE HISTORY:
Senate 4829-A (Avella) (Judiciary) OCA 2017-16
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