NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9505
SPONSOR: McMahon TITLE OF BILL:
An act to amend the family court act and the domestic relations law, in
relation to establishment and modification of child support orders
TITLE OF BILL:
An act to amend the family court act and the domestic relations law, in
relation to establishment and modification of child support orders
PURPOSE OR GENERAL IDEA OF BILL:
This bill would update the New York State child support guidelines to
conform to the Federal Regulations allowing for discretion to consider
specific circumstances.
SUMMARY OF PROVISIONS:
Sections one through four of this bill would amend various sections of
the family court act and domestic relations law relating to factors
which judges may evaluate when determining the amount of income that may
be attributed or imputed for the purposes of determining child support
payments.
Sections five through eight would amend the family court and domestic
relations law to remove the exceptions allowing for consideration of
incarceration to be voluntary in determining child support orders.
Section 9 would set forth the effective date.
JUSTIFICATION:
These changes are necessary to bring New York State into conformity with
the Federal Regulations regarding child support calculation procedures
and factors which a court may consider when determining child support
orders.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
Immediately.
STATE OF NEW YORK
________________________________________________________________________
9505
IN ASSEMBLY
March 15, 2024
___________
Introduced by M. of A. McMAHON -- read once and referred to the Commit-
tee on Judiciary
AN ACT to amend the family court act and the domestic relations law, in
relation to establishment and modification of child support orders
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Clause (iv) of subparagraph 5 of paragraph (b) of subdivi-
2 sion 1 of section 413 of the family court act, as amended by chapter 567
3 of the laws of 1989, is amended to read as follows:
4 (iv) at the discretion of the court, the court may attribute or impute
5 income from[,] such other resources as may be available to the parent,
6 including, but not limited to:
7 (A) non-income producing assets,
8 (B) meals, lodging, memberships, automobiles or other perquisites that
9 are provided as part of compensation for employment to the extent that
10 such perquisites constitute expenditures for personal use, or which
11 expenditures directly or [indirecly] indirectly confer personal economic
12 benefits,
13 (C) fringe benefits provided as part of compensation for employment,
14 and
15 (D) money, goods, or services provided by relatives and friends;
16 In determining the amount of income that may be attributed or imputed,
17 the court shall consider the specific circumstances of the parent, to
18 the extent known, including such factors as the parent's assets, resi-
19 dence, employment and earning history, job skills, educational attain-
20 ment, literacy, age, health, criminal record and other employment barri-
21 ers, record of seeking work, the local job market, the availability of
22 employers willing to hire the parent, prevailing earnings level in the
23 local community, and other relevant background factors such as the age,
24 number, needs, and care of the children covered by the child support
25 order. Attribution or imputation of income shall be accompanied by
26 specific written findings identifying the basis or bases for such deter-
27 mination utilizing factors required or permitted to be considered pursu-
28 ant to this clause;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14925-01-4
A. 9505 2
1 § 2. Clause (iv) of subparagraph 5 of paragraph (b) of subdivision 1-b
2 of section 240 of the domestic relations law, as added by chapter 567 of
3 the laws of 1989, is amended to read as follows:
4 (iv) at the discretion of the court, the court may attribute or impute
5 income from[,] such other resources as may be available to the parent,
6 including, but not limited to:
7 (A) non-income producing assets,
8 (B) meals, lodging, memberships, automobiles or other perquisites that
9 are provided as part of compensation for employment to the extent that
10 such perquisites constitute expenditures for personal use, or which
11 expenditures directly or [indirecly] indirectly confer personal economic
12 benefits,
13 (C) fringe benefits provided as part of compensation for employment,
14 and
15 (D) money, goods, or services provided by relatives and friends;
16 In determining the amount of income that may be attributed or imputed,
17 the court shall consider the specific circumstances of the parent, to
18 the extent known, including such factors as the parent's assets, resi-
19 dence, employment and earning history, job skills, educational attain-
20 ment, literacy, age, health, criminal record and other employment barri-
21 ers, record of seeking work, the local job market, the availability of
22 employers willing to hire the parent, prevailing earnings level in the
23 local community, and other relevant background factors such as the age,
24 number, needs, and care of the children covered by the child support
25 order. Attribution or imputation of income shall be accompanied by
26 specific written findings identifying the basis or bases for such deter-
27 mination utilizing factors required or permitted to be considered pursu-
28 ant to this clause;
29 § 3. Paragraph (k) of subdivision 1 of section 413 of the family court
30 act, as amended by chapter 567 of the laws of 1989, is amended to read
31 as follows:
32 (k) When a party has defaulted and/or the court is otherwise presented
33 with insufficient evidence to determine gross income, [the court shall
34 order child support based upon the needs or standard of living of the
35 child, whichever is greater] the support obligation shall be based on
36 available information about the specific circumstances of the parent, in
37 accordance with clause (iv) of subparagraph five of paragraph (b) of
38 this subdivision. Such order may be retroactively modified upward, with-
39 out a showing of change in circumstances.
40 § 4. Paragraph (k) of subdivision 1-b of section 240 of the domestic
41 relations law, as added by chapter 567 of the laws of 1989, is amended
42 to read as follows:
43 (k) When a party has defaulted and/or the court is otherwise presented
44 with insufficient evidence to determine gross income, [the court shall
45 order child support based upon the needs or standard of living of the
46 child, whichever is greater] the support obligation shall be based on
47 available information about the specific circumstances of the parent, in
48 accordance with clause (iv) of subparagraph five of paragraph (b) of
49 this subdivision. Such order may be retroactively modified upward, with-
50 out a showing of change in circumstances.
51 § 5. Clause (v) of subparagraph 5 of paragraph (b) of subdivision 1 of
52 section 413 of the family court act, as amended by chapter 313 of the
53 laws of 2019, is amended to read as follows:
54 (v) an amount imputed as income based upon the parent's former
55 resources or income, if the court determines that a parent has reduced
56 resources or income in order to reduce or avoid the parent's obligation
A. 9505 3
1 for child support; provided that incarceration shall not be considered
2 voluntary unemployment[, unless such incarceration is the result of
3 non-payment of a child support order, or an offense against the custo-
4 dial parent or child who is the subject of the order or judgment];
5 § 6. Clause (v) of subparagraph 5 of paragraph (b) of subdivision 1-b
6 of section 240 of the domestic relations law, as amended by chapter 313
7 of the laws of 2019, is amended to read as follows:
8 (v) an amount imputed as income based upon the parent's former
9 resources or income, if the court determines that a parent has reduced
10 resources or income in order to reduce or avoid the parent's obligation
11 for child support; provided that incarceration shall not be considered
12 voluntary unemployment[, unless such incarceration is the result of
13 non-payment of a child support order, or an offense against the custo-
14 dial parent or child who is the subject of the order or judgment];
15 § 7. Paragraph (a) of subdivision 3 of section 451 of the family court
16 act, as amended by chapter 313 of the laws of 2019, is amended to read
17 as follows:
18 (a) The court may modify an order of child support, including an order
19 incorporating without merging an agreement or stipulation of the
20 parties, upon a showing of a substantial change in circumstances.
21 Incarceration shall not be considered voluntary unemployment and shall
22 not be a bar to finding a substantial change in circumstances [provided
23 such incarceration is not the result of non-payment of a child support
24 order, or an offense against the custodial parent or child who is the
25 subject of the order or judgment].
26 § 8. Clause (i) of subparagraph 2 of paragraph b of subdivision 9 of
27 part B of section 236 of the domestic relations law, as amended by chap-
28 ter 313 of the laws of 2019, is amended to read as follows:
29 (i) The court may modify an order of child support, including an order
30 incorporating without merging an agreement or stipulation of the
31 parties, upon a showing of a substantial change in circumstances.
32 Incarceration shall not be considered voluntary unemployment and shall
33 not be a bar to finding a substantial change in circumstances [provided
34 such incarceration is not the result of non-payment of a child support
35 order, or an offense against the custodial parent or child who is the
36 subject of the order or judgment].
37 § 9. This act shall take effect immediately, and shall apply to any
38 action or proceeding pending upon or commenced on or after such effec-
39 tive date.
