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Tuesday, October 08, 2019

Recent Decisions and Legislation October 1, 2019


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.