ARTICLE 13: Provisions Applicable to More Than One Type of Matrimonial Action
(provided by Divorce Source, Inc.)
Published 6.5.98
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Sec. 246. Persons financially unable to comply with orders or
judgments directing the payment of alimony.
1. Any person who,
by an order or judgment made or entered in an action for divorce,
separation, annulment or declaration of the nullity of a void
marriage or an action for the enforcement in this state of a
judgment for divorce, separation or annulment or declaring the
nullity of a void marriage rendered in another state, is directed
to make payment of any sum or sums of money and against whom an
order to punish for a contempt of court has been made pursuant to
the provisions of section two hundred forty-five of this chapter
or the judiciary law may, if financially unable to comply with
the order or judgment to make such payment, upon such notice to
such parties as the court may direct, make application to the
court for an order relieving him from such payment and such
contempt order. The court, upon the hearing of such application,
if satisfied from the proofs and evidence offered and submitted
that the applicant is financially unable to make such payment
may, upon a showing of good cause, until further order of the
court, modify the order or judgment to make such payment and
relieve him from such contempt order. No such modification shall
reduce or annul unpaid sums or installments accrued prior to the
making of such application unless the defaulting party shows good
cause for failure to make application for relief from the
judgement or order directing such payment prior to the accrual of
such arrears. Such modification may increase such support nunc
pro tunc based on newly discovered evidence.
2. Whenever, upon application to the court by an interested
party, it appears to the satisfaction of the court that any
person, who has been relieved totally or partially from making
any such payment pursuant to the provisions of this section, is
no longer financially unable to comply with the order or judgment
to make such payment, then the court may, upon a showing of good
cause, modify or revoke its order relieving him totally or
partially from making such payment.
3. Any person may assert his financial inability to comply
with the directions contained in an order or judgment made or
entered in an action for divorce, separation, annulment or
declaration of the nullity of a void marriage or an action for
the enforcement in this state of a judgment for divorce,
separation or annulment or declaring the nullity of a void
marriage rendered in another state, as a defense in a proceeding
instituted against him under section two hundred forty-five or
under the judiciary law to punish him for his failure to comply
with such directions and, if the court, upon the hearing of such
contempt proceeding, is satisfied from the proofs and evidence
offered and submitted that the defendant is financially unable to
comply with such order or judgment, it may, in its discretion,
until further order of the court, make an order modifying such
order or judgment and denying the application to punish the
defendant for contempt. No such modification shall reduce or
annul arrears accrued prior to the making of such application
unless the defaulting party shows good cause for failure to make
application for relief from the judgment or order directing such
payment prior to the accrual of such arrears. Such modification
may increase such support nunc pro tunc as of the date of the
application based on newly discovered evidence. Any retroactive
amount of support due shall be paid in one sum or periodic sums,
as the court shall direct, taking into account any amount of
temporary support which has been paid.
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Sec. 247. Alimony or maintenance payments suspended during
confinement in prison. Notwithstanding any inconsistent provision
of this article, the provision of any judgment or order rendered
or made in an action for divorce, separation, annulment or
declaration of nullity of a void marriage, requiring the payment
of moneys by one spouse for the support of the other shall be
suspended and inoperative so far as punishment for contempt is
concerned during the period in which the defaulting spouse shall
be imprisoned pursuant to any order adjudging him or her in
contempt for failure to comply with any provision in such order.
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Sec. 248. Modification of judgment or order in action for
divorce or annulment. Where an action for divorce or for
annulment or for a declaration of the nullity of a void marriage
is brought by a husband or wife, and a final judgment of divorce
or a final judgment annulling the marriage or declaring its
nullity has been rendered, the court, by order upon the
application of the husband on notice, and on proof of the
marriage of the wife after such final judgment, must modify such
final judgment and any orders made with respect thereto by
annulling the provisions of such final judgment or orders, or of
both, directing payments of money for the support of the wife.
The court in its discretion upon application of the husband on
notice, upon proof that the wife is habitually living with
another man and holding herself out as his wife, although not
married to such man, may modify such final judgment and any
orders made with respect thereto by annulling the provisions of
such final judgment or orders or of both, directing payment of
money for the support of such wife.
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Sec. 249. Trial preferences in matrimonial actions. Upon
motion of either party or upon its own motion, the court may
direct that any action or proceeding brought (1) to annul a
marriage or to declare the nullity of a void marriage, or (2) for
a separation, or (3) for a divorce, or (4) to enjoin the
prosecution in any other jurisdiction of an action for divorce,
be placed forthwith by the clerk on the supreme court calendar
and be entitled to preference in the trial thereof, in accordance
with Rule 3403 of the civil practice law and rules, provided that
in the courts` discretion, justice so requires. Such direction
may be made by separate order or in any order granted in any such
action or proceeding upon any application made pursuant to
sections two hundred thirty-six, two hundred thirty-seven or two
hundred forty of this article.
Such direction, in the event no note of issue has been
previously filed with the clerk, may also require either party to
file with the clerk proof of service of the summons, two copies
of the note of issue and such other data as may be required.
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Sec. 251. Filing of order in family court. When, in a
matrimonial action, the supreme court refers the issues of
support, custody or visitation to the family court, the order or
judgment shall provide that a copy thereof shall be filed by the
plantiff`s attorney, within ten days, with the clerk of the
family court therein specified.
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Sec. 252. Effect of pendency of action for divorce, separation or annul-
ment on petition for order of protection.
1. In an action for divorce,
separation or annulment or in an action to declare the nullity of a void
marriage in the supreme court, the supreme court or the family court
shall entertain an application for an order of protection or temporary
order of protection by either party. Such an order may require any
party:
(a) to stay away from the home, school, business or place of employ-
ment of the child, other parent or any other party, and to stay away
from any other specific location designated by the court;
2. An order of protection entered pursuant to this subdivision shall
bear in a conspicuous manner, on the front page of said order, the
language "Order of protection issued pursuant to section two hundred
fifty-two of the domestic relations law". The absence of such language
shall not affect the validity of such order. The presentation of a copy
of such an order to any peace officer acting pursuant to his or her
special duties, or police officer, shall constitute authority, for that
officer to arrest a person when that person has violated the terms of
such an order, and bring such person before the court and, otherwise, so
far as lies within the officer`s power, to aid in securing the
protection such order was intended to afford.
(b) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(c) to refrain from committing a family offense, as defined in subdi-
vision one of section 530.11 of the criminal procedure law, or any crim-
inal offense against such child or against the other parent or against
any person to whom custody of the child is awarded or from harassing,
intimidating or threatening such persons;
(d) to permit a designated party to enter the residence during a spec-
ified period of time in order to remove personal belongings not in issue
in a proceeding or action under this chapter or the family court act;
(e) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child;
(f) to pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by such
order if such order is issued or enforced; or
(g) to observe such other conditions as are necessary to further the
purposes of protection.
2-a. If the court that issued an order of protection or temporary
order of protection under this section or warrant in connection thereto
is not in session when an arrest is made for an alleged violation of the
order or upon a warrant issued in connection with such violation, the
arrested person shall be brought before a local criminal court in the
county of arrest or in the county in which such warrant is returnable
pursuant to article one hundred twenty of the criminal procedure law and
arraigned by such court. Such local criminal court shall order the
commitment of the arrested person to the custody of the sheriff, admit
to, fix or accept bail, or release the arrested person on his or her
recognizance pending appearance in the court that issued the order of
protection, temporary order of protection or warrant. In making such
order, such local criminal court shall consider the bail recommenda-
tions, if any, made by the supreme or family court as indicated on the
warrant or certificate of warrant. Unless the petitioner or complainant
requests otherwise, the court, in addition to scheduling further crimi-
nal proceedings, if any, regarding such alleged family offense or
violation allegation, shall make such matter returnable in the supreme
or family court, as applicable, on the next day such court is in
session.
3. An order of protection entered pursuant to this subdivision may be
made in the final judgment in any matrimonial action, or by one or more
orders from time to time before or subsequent to final judgment, or by
both such order or orders and the final judgment. The order of
protection may remain in effect after entry of a final matrimonial judg-
ment and during the minority of any child whose custody or visitation is
the subject of a provision of a final judgment or any order. An order of
protection may be entered notwithstanding that the court for any reason
whatsoever, other than lack of jurisdiction, refuses to grant the relief
requested in the action or proceeding.
4. No order of protection may direct any party to observe conditions
of behavior unless: (i) the party requesting the order of protection has
served and filed an action, proceeding, counterclaim or written motion
and, (ii) the court has made a finding on the record that such party is
entitled to issuance of the order of protection or that the party
against whom the order is issued has given knowing, intelligent and
voluntary consent to its issuance. The provisions of this subdivision
shall not preclude the court from issuing a temporary order of
protection upon the court`s own motion or where a motion for such relief
is made to the court, for good cause shown.
5. Except with respect to enforcement pursuant to a criminal prose-
cution under article two hundred fifteen of the penal law, the supreme
court may provide in an order made pursuant to this section that the
order may be enforced or modified only in the supreme court. If the
supreme court so provides, the family court may not entertain an appli-
cation to enforce or modify such an order of the supreme court.
6. In any such matrimonial action however, the court may not sua
sponte consolidate actions or make, vacate or modify orders of
protection issued in family court involving the same parties except upon
motion and with notice to the non-moving party. Such non-moving party
shall be given an opportunity to be heard.
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Sec. 253. Removal of barriers to remarriage.
1. This section applies only
to a marriage solemnized in this state or in any other jurisdiction by a
person specified in subdivision one of section eleven of this chapter.
2. Any party to a marriage defined in subdivision one of this section
who commences a proceeding to annul the marriage or for a divorce must
allege, in his or her verified complaint: (i) that, to the best of his
or her knowledge, that he or she has taken or that he or she will take,
prior to the entry of final judgment, all steps solely within his or her
power to remove any barrier to the defendant`s remarriage following the
annulment or divorce; or (ii) that the defendant has waived in writing
the requirements of this subdivision.
3. No final judgment of annulment or divorce shall thereafter be
entered unless the plaintiff shall have filed and served a sworn
statement: (i) that, to the best of his or her knowledge, he or she has,
prior to the entry of such final judgment, taken all steps solely within
his or her power to remove all barriers to the defendant`s remarriage
following the annulment or divorce; or (ii) that the defendant has
waived in writing the requirements of this subdivision.
4. In any action for divorce based on subdivisions five and six of
section one hundred seventy of this chapter in which the defendant
enters a general appearance and does not contest the requested relief,
no final judgment of annulment or divorce shall be entered unless both
parties shall have filed and served sworn statements: (i) that he or she
has, to the best of his or her knowledge, taken all steps solely within
his or her power to remove all barriers to the other party`s remarriage
following the annulment or divorce; or (ii) that the other party has
waived in writing the requirements of this subdivision.
5. The writing attesting to any waiver of the requirements of
subdivision two, three or four of this section shall be filed with the
court prior to the entry of a final judgment of annulment or divorce.
6. As used in the sworn statements prescribed by this section "barrier
to remarriage" includes, without limitation, any religious or
conscientious restraint or inhibition, of which the party required to
make the verified statement is aware, that is imposed on a party to a
marriage, under the principles held by the clergyman or minister who has
solemnized the marriage, by reason of the other party`s commission or
withholding of any voluntary act. Nothing in this section shall be
construed to require any party to consult with any clergyman or minister
to determine whether there exists any such religious or conscientious
restraint or inhibition. It shall not be deemed a "barrier to
remarriage" within the meaning of this section if the restraint or
inhibition cannot be removed by the party`s voluntary act. Nor shall it
be deemed a "barrier to remarriage" if the party must incur expenses in
connection with removal of the restraint or inhibition and the other
party refuses to provide reasonable reimbursement for such expenses.
"All steps solely within his or her power" shall not be construed to
include application to a marriage tribunal or other similar organization
or agency of a religious denomination which has authority to annul or
dissolve a marriage under the rules of such denomination.
7. No final judgment of annulment or divorce shall be entered,
notwithstanding the filing of the plaintiff`s sworn statement prescribed
by this section, if the clergyman or minister who has solemnized the
marriage certifies, in a sworn statement, that he or she has solemnized
the marriage and that, to his or her knowledge, the plaintiff has failed
to take all steps solely within his or her power to remove all barriers
to the defendant`s remarriage following the annulment or divorce,
provided that the said clergyman or minister is alive and available and
competent to testify at the time when final judgment would be entered.
8. Any person who knowingly submits a false sworn statement under this
section shall be guilty of making an apparently sworn false statement in
the first degree and shall be punished in accordance with section 210.40
of the penal law.
9. Nothing in this section shall be construed to authorize any court
to inquire into or determine any ecclesiastical or religious issue. The
truth of any statement submitted pursuant to this section shall not be
the subject of any judicial inquiry, except as provided in subdivision
eight of this section.
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