Recent Legislation
Laws of 2019, Ch 335,
enacted and effective October 3, 2019 amended Family Court Act §§828 and 842, Family
Court Act § 412(10), Domestic Relations Law § 236 [B][5-a] [b][5] and Domestic
Relations Law § 236[B](6][b][4]
Family
Court Act §§828 and 842 were amended to
authorize Family Court, when issuing a temporary order of protection to
issue an
order directing the parties to
appear within seven business days of the issuance of the order in the family
court, in the same action, for consideration of an order for temporary spousal
support in accordance with article four of the family court act. If the court
directs the parties to appear, it must direct the parties to appear with information
with respect to income and assets. However, a temporary order for spousal
support may be issued pursuant to article four of the family court act on the
return date notwithstanding the respondent’s default upon notice, and
notwithstanding that information with respect to income and assets of the
petitioner or respondent may be unavailable.
The
additions to Family Court Act §828 (5) and 842 are identical and read as
follows:
Notwithstanding the provisions of section
eight hundred seventeen
of this article, where a temporary order of spousal support has not
already been issued, the court may, in addition to the issuance of a
temporary order of protection pursuant to this section, issue an order
directing the parties to appear within seven business days of the issue-
acne of the order in the family court, in the
same action, for consider-
ation of an order for temporary spousal support in accordance with arti-
cle four of this act. If the court directs the parties to so appear, the
court shall direct the parties to appear with information with respect
to income and assets, but a temporary order for spousal support may be
issued pursuant to article four of this act on the return date notwith-
standing the respondent’s default upon notice and notwithstanding that
information with respect to income and assets of the petitioner or
respondent may be unavailable.
Family
Court Act § 412(10), Domestic Relations Law § 236 [B][5-a][b][5] and Domestic
Relations Law § 236[B](6][b][4] were amended to fix the date of the biennial
adjustment of the spousal maintenance "cap" at March 1st, rather than
January 31st, commencing in 2020.
According
to the Assembly sponsors memorandum in support to the legislation the Family
Protection and Domestic Violence Intervention Act of 1994 (L. 1994, c. 222)
authorized Family Courts, when issuing orders of protection in family offense
cases, to issue temporary orders of child support. However, it did not
authorize the court to award support to married petitioners in family offense
proceedings who do not have minor, dependent children. Child support, but not
spousal support, may be ordered in conjunction with the issuance of an order of
protection. The amendment permits issuance of a temporary order of spousal
support on the return date of the family offense petition "notwithstanding
the respondent's default upon notice and notwithstanding that information with
respect to income and assets of the petitioner or respondent may be
unavailable." Upon making an order for temporary spousal support, the
court must set the spousal support matter down for determination of the final
order.
The
amendment of the date of calculation of the spousal maintenance
"cap" in the Family Court Act
and Domestic Relations Law, conforms the adjustment date to that already in
effect for the child support income "cap," self-support reserve and
poverty level guidelines amount.
Appellate Divison, Second Department
Court has no discretion
to deny trial application for money judgment where it is established that
arrears were due and unpaid
In Uttamchandani v Uttamchandani, --- N.Y.S.3d ----,
2019 WL 4457752, 2019 N.Y. Slip Op. 06645 (2d Dept.,2019) the Appellate
Division observed that a party to a
matrimonial action may make an application for a judgment directing the payment
of arrears at any time prior to or subsequent to the entry of a judgment of
divorce (see Domestic Relations Law § 244; McCoy v. McCoy, 117 A.D.3d 806, 808,
985 N.Y.S.2d 629). The court did not have the discretion to deny the
plaintiff’s application for leave to enter a money judgment since she
established that arrears were due and unpaid. Where there are triable issues of
fact as to the amount of arrears, an evidentiary hearing should be held.
