Articles Posted in Enforcement & modification

When the parents of one or more minor children file for divorce in New York, a court must make or approve arrangements for the support of the child or children. The child support obligation becomes part of the final judgment of divorce, and it is enforceable like any other court order. Since child support enforcement can involve prosecution in the court system by a state agency, various constitutional concerns can potentially come into play. A New York federal court recently ruled that it lacked jurisdiction to hear a child support obligor’s civil rights claim against the family court officials. The court dismissed the obligor’s claim in Kneitel v. Palos, et al. with prejudice, meaning he is barred from filing it again.

Federal law allows individuals to file suit against federal, state, or local government officials for depriving them “of any rights, privileges, or immunities” while acting in an official capacity. A claim filed under this law is known as a “1983 claim,” after the law’s codification in 42 U.S.C. § 1983. It allows claims for violations of due process, equal protection, and other constitutional rights. Certain public officials may be protected from liability for certain acts, however, and federal courts lack jurisdiction over certain matters.

The Constitution and a wide range of statutes and court decisions have established that the federal government has exclusive jurisdiction over certain matters, the states have exclusive jurisdiction over others, and on many other matters they share jurisdiction. Domestic relations, including divorce, alimony, and child support, have generally remained under the jurisdiction of state governments and state laws. The U.S. Supreme Court has repeatedly affirmed this view, beginning in 1859 in Barber v. Barber, in 1890’s In re Burrus ruling, and in 2004 in Elk Grove Unif. Sch. Dist. v. Newdow.

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Future trips to court may be necessary to enforce maintenance or support obligations after a divorce in New York. Even if a court enters a judgment for unpaid obligations, the judgment creditor may have to go to court again to enforce the judgment. An order issued by the Supreme Court of Monroe County last summer in M.M. v. T.M. addresses this type of situation. The court described “a seemingly interminable battle” between the parties, with the most recent order enforcing a judgment against the judgment debtor’s retirement plan and a retainer paid to his attorney. Quoting Robert Frost about “a road not taken,” the court ventured away from New York family law and into laws dealing with retirement plans and the attorney-client relationship.

The federal Employee Retirement Income Security Act (ERISA) establishes standards for the administration of various types of retirement plans. It generally prohibits the assignment of retirement benefits, unless the assignment is made in accordance with state family law in an order known as a “qualified domestic relations order” (QDRO). The division or assignment of retirement benefits in a divorce case therefore typically requires a QDRO signed separately by the court.

The dispute in M.M. also involved a retainer paid by the ex-husband/judgment debtor to his attorney. The status of a retainer paid to an attorney, under New York law, depends to some extent on the agreement between the attorney and the client. The general rule is that, in the absence of a specific written agreement stating otherwise, the attorney holds the retainer funds in escrow, and the client maintains an interest in any funds not earned by the attorney. State law requires attorneys to maintain a special bank account for escrowed client funds, and ethics rules require attorneys to take great care in managing these funds.

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When married parents of one or more minor children seek a divorce in New York, they must arrange for the custody and support of the children before a court may make a final order of divorce. Courts welcome efforts by the parties to a divorce to reach an agreement with regard to child support and other issues. Otherwise, a court will decide these issues after a trial. The party entitled to receive support payments (the “obligee”) may enforce a support order against the party ordered to pay support (the “obligor”) by initiating a new proceeding in court. A New York Appellate Court recently considered an obligor’s challenge to a finding that he “willfully” violated a support order in Matter of O’Sullivan v. Schebilski.

A common arrangement for child custody and child support involves a child living with one parent and having visitation with the other parent, while that other parent makes child support payments. A child support obligation remains in effect until the child turns 21, dies, or is legally emancipated. New York courts may take a wide range of factors into consideration when determining the amount of a child support obligation, including the health and educational needs of the child or children, each parent’s income and earning capacity, and any disabilities or needs affecting either parent.

The parties in O’Sullivan are the parents of one child, who was born in 1992. A court issued a support order in July 2005 and modified it in September 2009. It ordered the father/obligor to pay $142 per week in child support, although the O’Sullivan ruling does not state if this was the original or the modified amount. The mother/obligee brought an enforcement action against the obligor in February 2013, claiming that he owed about $80,000 in child support.

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When the parents of one or more children divorce, courts in New York are typically required to issue an order regarding the non-custodial parent’s obligation to make payments for the support of the children. Failing to pay child support is therefore a violation of a court order, even when the parties to a divorce agree to the terms of child support. Courts in this state have broad powers to enforce child support obligations under § 454 of the Family Court Act (FCA). New York’s Child Support Enforcement Unit (CSEU) is authorized to bring enforcement actions in this state against non-custodial parents with child support obligations. In some cases, non-payment of child support can result in jail time, but New York provides multiple methods for the enforcement and collection of amounts owed.

Jail Sentences

A jail sentence is an extreme penalty for a failure to pay child support. It is often reserved for obligors who have substantial arrearages, or who have failed to obey prior enforcement orders. In a recent case involving a celebrity obligor, a New York court released a well-known rapper from jail after he served two months in connection with an alleged $400,000 child support debt. Another rapper was arrested for non-payment of child support, and while media reports did not state how much he allegedly owed, the court set his bond at over $480,000.

Under the FCA, only obligors who “willfully” fail to obey a support order may be subject to jail time. However, § 454(3)(a) of the FCA states that “failure to pay support, as ordered, shall constitute prima facie evidence of a willful violation,” which seems to place most cases of non-payment in the “willful” category. An obligor may present evidence to rebut this presumption of willfulness and to offer alternative methods of payment. In another celebrity case, a former professional basketball player turned over a house to the custodial parent to settle a $900,000 child support arrearage.

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The U.S. House of Representatives recently passed a bill intended to help state child support agencies obtain credit information about child support obligors who are in arrears. Under the Fair Credit Reporting Act (FCRA), when a state child support agency requests credit information about an individual, that individual is currently entitled to 10 days’ notice of the request. H.R. 2091, the “Child Support Assistance Act of 2015,” amends the FCRA to remove the 10-day notice period, ostensibly to deny non-paying parents a 10-day opportunity to alter their finances. The bill is now pending in the U.S. Senate.

Credit information, including debt history, payments on debts, lack of payments on debts, and other details, has become critically important for consumers. Private businesses known as “consumer reporting agencies,” or “credit bureaus,” collect consumers’ credit information and compile it into credit reports, which are available upon request to certain individuals or businesses for a fee. The FCRA allows individuals to obtain a free copy of their own credit report once a year from each of the “big three” credit bureaus:  Equifax, Experian, and TransUnion.

The FCRA regulates how and when credit bureaus may provide credit reports to requesters. Under § 604(a) of the FCRA, codified at 15 U.S.C. § 1681b, state child support agencies are permitted to request a parent’s credit report to determine whether the parent is capable of making child support payments, and if so, determining the amount they can pay. This section of the FCRA currently requires the state agency to give notice of the request to the parent “by certified or registered mail to [their] last known address” at least 10 days in advance of obtaining the credit report.

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A lawsuit filed in a Manhattan federal court deals with what appears to be a highly contentious dispute between the parents of two children. The plaintiff in Kelleran v. Casey, who is the father of the children, alleges that the defendant accessed his laptop computer without his permission and “hacked” several online accounts, allegedly to obtain information to use against him in a child support modification proceeding. The case demonstrates how acrimonious family law cases can get, and it also raises important questions about how to modify child support orders and how to obtain evidence of another parent’s income.

The parties had two children before separating in 2005. A Brooklyn family court ordered the plaintiff to pay $2,000 per month to the defendant in child support in October 2005. The plaintiff does not state whether this order was the result of a settlement agreement or not, nor does he state whether or not he was in arrears on child support prior to the current dispute.

In May 2012, the plaintiff claims, he allowed his daughter to borrow his laptop computer for the weekend. During that time, the defendant allegedly accessed a file on the computer that contained a listing for a Manhattan apartment owned by the plaintiff’s brother. The plaintiff claims that the defendant used this information as the basis for a petition to modify child support filed in March 2013. He further claims that the petition contained false information about his finances.

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