N.Y. Civil Practice Law & Rules § 5242: Income deduction order for support enforcement

§ 5242. Income deduction order for support enforcement. (a) Upon

application of a creditor, for good cause shown, and upon such terms as

justice may require, the court may correct any defect, irregularity,

error or omission in an income execution for support enforcement issued

pursuant to section 5241 of this article.

(b) Upon application of a creditor, for good cause shown, the court

may enter an income deduction order for support enforcement. In

determining good cause, the court may take into consideration evidence

of the degree of such debtor's past financial responsibility, credit

references, credit history, and any other matter the court considers

relevant in determining the likelihood of payment in accordance with the

order of support. Proof of default establishes a prima facie case

against the debtor, which can be overcome only by proof of the debtor's

inability to make the payments. Unless the prima facie case is overcome,

the court shall enter an income deduction order for support enforcement

pursuant to this section.

(c) When the court enters an order of support on behalf of persons

other than those in receipt of public assistance or in receipt of

services pursuant to section one hundred eleven-g of the social services

law, or registers pursuant to article five-B of the family court act an

order of support which has been issued by a foreign jurisdiction and

which is not to be enforced pursuant to title six-A of article three of

the social services law, where the court determines that the debtor has

income that could be subject to an income deduction order, the court

shall issue an income deduction order to obtain payment of the order at

the same time it issues or registers the order. The court shall enter

the income deduction order unless the court finds and sets forth in

writing (i) the reasons that there is good cause not to require

immediate income withholding; or (ii) that an agreement providing for an

alternative arrangement has been reached between the parties. Such

agreement may include a written agreement or an oral stipulation, made

on the record, that results in a written order. For purposes of this

subdivision, good cause shall mean substantial harm to the debtor. The

absence of an arrearage or the mere issuance of an income deduction

order shall not constitute good cause. When the court determines that

there is good cause not to issue an income deduction order immediately

or when the parties agree to an alternative arrangement as provided in

this subdivision, the court shall state expressly in the order of

support the basis for its decision.

(d) In entering the income deduction order, the court shall use the

form for income withholding promulgated by the office of temporary and

disability assistance for this purpose, which form shall include the

necessary information and directions to ensure the characterization of

the income deduction order as an income withholding notice as described

and required by subsection (b) of section six hundred sixty-six of title

forty-two of the United States Code; provided, however, that where the

court enters an order for spousal support only, an alternate spousal

support form for income withholding promulgated by the office of

temporary and disability assistance may be used but is not required. The

court shall serve or cause to be served a copy of the income deduction

order on the employer or income payor and transmit copies of such order

to the parties; and, in addition, where the income deduction order is

for child support or combined child and spousal support, to the state

disbursement unit established in this state in accordance with section

six hundred fifty-four-b of title forty-two of the United States Code.

(e) An employer or income payor served with an income deduction order

entered pursuant to this section shall commence deductions from the

income due or thereafter due to the debtor no later than the first pay

period that occurs fourteen days after service of the income deduction

order, and shall make payments payable to and remit such payments to the

state disbursement unit if the deductions are for child or combined

child and spousal support, or to the creditor if the deductions are for

spousal support only, within seven business days of the date that the

debtor is paid. Each payment remitted by the employer or income payor

shall include the information as instructed on the income deduction

order. The amount remitted by the employer or income payor shall be as

set forth in the income deduction order including the additional amount

that shall be ordered by the court and applied to the reduction of

arrears, if any, unless such deduction is otherwise limited by

subdivision (f) of this section.

(f) An employer or income payor shall be liable to the creditor for

failure to deduct the amounts specified in the income deduction order,

provided however that deduction by the employer or income payor of the

amounts specified shall not relieve the debtor of the underlying

obligation of support. If an employer or income payor shall fail to so

pay the state disbursement unit or, if a spousal support only payment

the creditor, the creditor may commence a proceeding against the

employer or income payor for accrued deductions, together with interest

and reasonable attorney's fees. If the debtor's employment is terminated

by resignation or dismissal at any time after service of the income

deduction order, the order shall cease to have force and effect unless

the debtor is reinstated or re-employed within ninety days after such

termination. An employer must notify the issuer promptly when the debtor

terminates employment and must provide the debtor's last address and the

name and address of the debtor's new employer, if known. An income payor

must notify the issuer when the debtor no longer receives income and

must provide the debtor's last address and the name and address of the

debtor's new employer, if known. Where the income is compensation paid

or payable to the debtor for personal services, the amount withheld by

the employer shall not exceed the following:

(i) Where the debtor currently is supporting a spouse or dependent

child other than the creditor's dependent child, the amount withheld

shall not exceed fifty percent of the earnings of the debtor remaining

after the deduction therefrom of any amounts required by law to be

withheld ("disposable earnings"), except that if any part of the

deduction is to be applied to the reduction of arrears which shall have

accrued more than twelve weeks prior to the beginning of the week for

which such earnings are payable, the amount withheld shall not exceed

fifty-five percent of disposable earnings.

(ii) Where the debtor currently is not supporting a spouse or

dependent child other than the creditor's dependent child, the amount

withheld shall not exceed sixty percent of the earnings of the debtor

remaining after the deduction therefrom of any amounts required by law

to be withheld ("disposable earnings"), except that if any part of the

deduction is to be applied to the reduction of arrears which shall have

accrued more than twelve weeks prior to the beginning of the week for

which such earnings are payable, the amount withheld shall not exceed

sixty-five percent of disposable earnings.

(g) An order pursuant to this section shall take priority over any

other assignment, levy or process. If an employer or income payor is

served with more than one income deduction order pertaining to a single

employee pursuant to this section, or with an order issued pursuant to

this section and also an execution pursuant to section 5241 of this

article, and if the combined total amount of the income to be withheld

exceeds the limits set forth in subdivision (f) of this section, the

employer or income payor shall withhold the maximum amount permitted

thereby and pay to each creditor that proportion thereof which such

creditor's claim bears to the combined total.

(h) An employer or income payor shall be liable to the creditor for

failure to deduct the amounts specified, provided however that deduction

of the amounts specified by the employer or income payor shall not

relieve the debtor of the underlying obligation of support.

(i) A creditor shall not be required to issue process under section

5241 of this article prior to obtaining relief pursuant to this section.