Tuesday, October 18, 2016

ENFORCEMENT OF SUPPORT ORDERS AMENDMENT

 
An act to amend domestic relations law section 245, in relation to providing 
additional enforcement mechanisms for collection of spousal or child support became
a law September 29, 2016, with the approval of the Governor. Here is the text of
the summary: 
 
"An act to amend the domestic relations law, in relation to providing
additional enforcement mechanisms for collection of spousal or 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 Matrimoni-
al Practice Advisory and Rules Committee.
 
This measure would amend D.R.L. § 245 to eliminate the requirement that
other enforcement remedies be exhausted before contempt can be sought
against a person who fails to pay child support, spousal support or
combined child and spousal support pursuant to a court order in a matri-
monial proceeding.
 
Even though Family Court and Supreme Court often have concurrent juris-
diction over support, the Family Court Act does not require a party to
exhaust remedies before asking for contempt for failure to pay support.
In contrast, D.R.L. § 245 expressly prohibits a party from seeking
contempt without first exhausting other remedies. To exhaust a remedy
can take months or even longer. For example, if a money judgment is
obtained for the amount due, it may take some months to enforce the
judgment. To exhaust every remedy could mean delay after delay for the
families who need the support for their immediate needs. This ability to
delay the case in Supreme Court works to the detriment of the non-monied
spouse, the custodial parent, and  children while a divorce proceeding
is ongoing unless the Supreme Court refers the case to Family Court
where the exhaustion of remedies requirements do not apply or unless a
party seeks post-judgment relief in Family Court and not Supreme Court.
It allows parties who owe support to delay further, knowing that
contempt remedies for enforcement are a last resort.
 
Incarceration will continue to be a remedy of last resort. This measure
would not alter the court's current ability to utilize all remedies of
enforcement including setting a purge amount, income execution, money
judgment, requiring posting an undertaking and making an order of
sequestration, after a finding of contempt.
 
Inability to pay will continue to be a defense to a finding of contempt.
Furthermore, as required under existing law, indigent obligors defending
claims of contempt and possible imprisonment would continue to be enti-
tled to assigned counsel.
 
Such a measure was introduced in 2009-10 (A. 5979 (Weinstein), S. 2977
(Sampson)), which would have amended D.R.L. § 245 to delete the require-
ment for exhaustion of remedies and also amended D.R.L. § 243 to allow
the court to require posting of security to ensure payment of equitable
distribution awards as well as child and spouse support (see
http://www.assembly.state.nv.us/leg/?bn=AO5979&term=2009).  Although we
support the change to D.R.L. § 243 as well, we believe the amendment to
D.R.L. § 245 is of great significance. While we recognize that the
contempt remedy is not always effective, contempt is a powerful tool,
and there is no reason why the Supreme Court should not have the same
resources at its disposal as the Family Court.
 
This measure, which would have no fiscal impact upon the State, would
take effect immediately and apply to all actions whenever commenced as
well as all judgments or orders previously entered."

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