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Enforcement of Child and Spousal Support Judgments - Special Rules for Collection
Judgments for support of children and spouses receive special consideration by the courts in New York. The philosophy behind this special treatment is the legislative recognition of public policy engendered by guaranteeing support of children by both parents under the mandates of New York's Child Support Standards Act and other statutes related to support of children and spouses (such as sections of the Family Court Act, Domestic Relations Law and Social Services Law).
Of special interest to any creditor looking to execute against property owned by a debtor is that an execution for child support has priority over any other assignment, levy or process (Civil Practice law & Rules Section 5234[b]).
Similarly, the income execution for support enforcement authorized by CPLR Section 5241 allows the attorney for the creditor to obtain up to 65 percent of the debtor's disposable earnings to pay both past due and current amounts of child support, alimony or maintenance, plus provision of health insurance for dependents. CPLR Section 5241(h) notes that a levy on this type of execution has priority "over any other assignment, levy or process."
Similar to the income execution for support enforcement is the income deduction order for support enforcement authorized by CPLR Section 5242. Such an order is issued by the court at the same time it issues an order of support. It allows deduction of the same percentages from debtor's income payable to the creditor and the same number-one priority over all other assignments, levies or process against the income of the debtor.
Enforcement remedies for failure to pay support are much more extensive and far-ranging than for other types of orders and judgments. In addition to incarceration for contempt, there are also criminal sanctions for willful failure to pay child support.
There are some attorneys who specialize in or devote a sizeable portion of their collection practice to enforcement of child and spousal support obligations.
Fee arrangements must be on a flat fee or hourly basis, or some basis that is not dependent upon the outcome. It is unethical for an attorney to represent a client in a matrimonial or family law matter on a contingency fee basis. However, the Family Court Act and Domestic Relations Law both provide for mandatory attorney's fee awards in cases of enforcement of orders and judgments for delinquent support. These are added to the amounts due and are directed to be paid in lump-sum or periodic payments directly to the attorney. They can be reduced to judgment if not paid.
One of the most favorable aspects of child support, spousal support orders and judgments, as well as judgments for attorney's fees for enforcement of those orders is that they are not dischargeable by the debtor in bankruptcy proceedings. This is especially important for the creditor and attorney who are faced with the prospect of a debtor filing a Chapter 7 bankruptcy petition to be relieved from the burden of commercial and consumer debt. The ultimate result is to free up the debtor's assets and income for execution by the support enforcement creditor and attorney.
New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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