347.9 Enforcement of support obligations and issuance of income executions.
(a) Immediate issuance of income executions. For any child
support or child and spousal support court order issued under the provisions of
section 236 or 240 of the Domestic Relations Law, or article 4, 5, 5-A or 5-B of
the Family Court Act, which directs payments to the Support Collection Unit (SCU),
the local child support enforcement unit through its SCU, must:
(1) immediately issue and process an
income execution for support enforcement within 15 calendar days of the date the
support order is received if the employer's address is known or, if unknown,
within 2 business days of the date the Child Support Management System (CSMS)
receives notice of the income source rom the State New Hire Directory or other
source, unless:
(i) the court
finds and sets forth in writing the reasons that there is good cause not to
require immediate income withholding. For purposes of this paragraph, good cause
means substantial harm to the debtor. The absence of an arrearage or the mere
issuance of an income execution does not constitute good cause; or
(ii) when the
child is not in receipt of public assistance, a written agreement providing for
an alternative arrangement has been executed by the parties. A written agreement
may include an oral stipulation made on the record in court which results in a
written order.
(2) issue and process an income
execution as follows:
(i) use the
income execution form developed by the State Division of Child Support
Enforcement (D CSE) and provided to the district through the CSMS;
(ii) serve
the income execution upon the debtor's employer or income payor, and provide a
copy of the income execution to the debtor. Service must be by regular mail or
in the same manner as a summons may be served; the debtor's copy may be mailed
to the debtor's last known residence or such other place where the debtor is
likely to receive notice;
(iii) correct
any error made in the issuance of an income execution which is to the detriment
of the debtor, within 30 days after notification by the debtor of such error;
and
(iv) include
the following information on the income execution form:
(a) the caption of the order of support;
(b) the date that the order of support was entered;
(c) the court in which the order of support was entered;
(d) the amount of the periodic payments specified in the order
(e) the total amount of any arrears;
(f) the names of the debtor and creditor;
(g) the name and address of the employer or income payor from whom the debtor is
receiving or will receive income;
(h) the amount of the deduction to be made from the debtor's income to satisfy
the court-ordered support obligation;
(i) the amount, determined in accordance with subdivision (e) of this section,
of any additional deduction to be made from the debtor's income, to satisfy any
accrued arrears/past due support;
(j) a statement that:
(1) the deductions will apply to current and future income;
(2)the income execution will be served upon any current or subsequent employer
or income payor;
(3) the income execution is binding until further notice; and
(4) the procedures available for claiming that the support collection unit made
an error in issuing the income execution.
(k) a statement that:
(1) no employer is permitted to discharge, lay off or discipline an employee or
refuse to hire a prospective employee because one or more wage assignments or
income executions have been served upon such employer or a former employer
against the employee's or prospective employee's wages, and that a violation of
this provision is punishable as a contempt of court by fine or imprisonment or
both;
(2) each payment remitted by an employer or income payor must include, in
addition to the name and social security number of the debtor and the debtor's
CSMS account number, the date and amount of each withholding of the debtor's
income included in the payment. Date of withholding means the date on which the
income would otherwise have been paid or made available to the debtor if it were
not withheld by the employer or income payor.
(3) an employer or income payor served with an income execution is required to
commence deductions from income due or thereafter due to the debtor no later
than the first pay period that occurs 14 days after service of the execution,
and is required to remit payments to the creditor within 7 business days of the
date that the debtor is paid;
(4) an employer or income payor is 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 does not relieve the debtor of the
underlying obligation of support;
(5) if the employer or income payor fails to pay the creditor, the creditor or
the debtor may commence a proceeding against such person for accrued deductions,
together with interest and reasonable attorney's fees;
(6) if the money due to the debtor consists of salary or wages and the debtor's
employment is terminated by resignation or dismissal at any time after service
of the execution, the levy will thereafter be ineffective and the execution will
be returned, unless the debtor is reinstated or reemployed within 90 days after
such termination;
(7) an employer must notify the issuer promptly when the debtor terminates
employment and provide the debtor's last known home address and the name and
address of the new employer, if known;
(8) where the income is compensation paid or payable to the debtor for personal
services, the amount of the deductions to be withheld are not permitted to
exceed the following:
(i) where a debtor is currently supporting a spouse or dependent child other
than the creditor, the amount of the deductions to be withheld may not exceed 50
percent of the earnings of the debtor remaining after the deduction therefrom of
any amounts required by law to be withheld (hereinafter referred to as
disposable earnings), except that if any part of such deduction is to be applied
to the reduction of arrears which have accrued more than 12 weeks prior to the
beginning of the week for which such earnings are payable, the amount of such
deduction cannot exceed 55 percent of disposable earnings;
(ii) where a debtor is not currently supporting a spouse or dependent child
other than the creditor, the amount of the deduction to be withheld may not
exceed 60 percent of the disposable earnings, except that if any part of such
deductions is to be applied to the reduction of arrears which have accrued more
than 12 weeks prior to the beginning of the week for which such earnings are
payable, the amount of such deduction cannot exceed 65 percent of disposable
earnings;
(9) upon a finding by the family court that the employer or income payor failed
to deduct or remit deductions as specified in the income execution, the court
shall issue to the employer or income payor an order directing compliance and
may direct the payment of a civil penalty not to exceed five hundred dollars for
the first instance and one thousand dollars per instance for the second and
subsequent instances of employer or income payor noncompliance; and
(10) when an employer or income payor receives an income withholding issued by
another state, the employer or income payor shall apply the income withholding
law of the state of the debtor's principal place of employment in determining:
(i) the employer's fee, if any, for processing income withholding;
(ii) the maximum amount permitted to be withheld from the debtor's income;
(iii) the time periods within which the employer must implement the income
withholding and forward the child support payments to the other state;
(iv) the priorities for withholding and allocating income withheld for multiple
child support creditors; and
(v) any withholding terms or conditions not specified in the withholding
instrument.
(b) Issuance of income executions upon default. For any child support or child
and spousal support court order issued prior to November 1, 1990, the local
child support enforcement unit, through its support collection unit (SCU), must
maintain an effective system for identifying those debtors who become delinquent
in meeting their court-ordered support obligation(s). The following action must
be taken against those respondents who have been identified as being delinquent:
(1) For those debtors who have failed to pay up to two required weekly
court-ordered support payments or one biweekly court- ordered support payment,
districts should attempt to obtain voluntary resumption of support payments.
(2) For those debtors who have failed to remit three payments when due in the
full amount directed by an order of support, or if the accumulation of arrears
is equal to or greater than the amount directed to be paid for one month, local
district SCUs must issue and process an income execution as follows:
(i) Use the income execution form developed by DCSE and provided through CSMS.
(ii) Serve a copy of the income execution upon the debtor, by regular mail or in
the same manner as a summons may be served, at the debtor's last known residence
or such other place where the debtor is likely to receive notice.
(iii) If a mistake of fact is alleged by the debtor, determine the validity of
such claim and provide written notice of such determination within 45 days after
notice to the debtor of the intent to serve the income execution on the employer
or income payor. If the mistake of fact is disallowed, the written notice must
state that the income execution will be served on the employer or income payor,
and the time that deductions will begin.
(iv) If no mistake of fact is alleged by the debtor, or if a determination if
made by the SCU that the alleged mistake of fact is not valid, proceed with the
expeditious implementation of the income execution by serving the income
execution upon the debtor's employer or income payor.
(v) Include the following information on the income execution form:
(a) the caption of the order of support;
(b) the date that the order of support was entered;
(c) the court in which the order of support was entered;
(d) the amount of the periodic payments specified in the order
(e) the total amount of the arrears that gave rise to the imple mentation of the
income execution;
(f) the nature of the default;
(g) the names of the debtor and creditor;
(h) the name and address of the employer or income payor from whom the debtor is
receiving or will receive income;
(i) the amount of the deduction to be made from the debtor's income to satisfy
the court-ordered support obligation;
(j) the amount, determined in accordance with subdivision (e) of this section,
of the additional deduction to be made from the debtor's income, that is to be
applied to the reduction of the arrears/past due support that gave rise to the
income execution;
(k) a statement of the manner in which a mistake of fact may be asserted;
(l) a statement that:
(1)the deductions will apply to current and future income;
(2) the income execution will be served upon any current or subsequent employer
or income payor, unless a mistake of fact is asserted within 15 days; and
(3) if the debtor claims a mistake of fact, a determination of the validity of
such claim will be made within 45 days after notice to the debtor is provided
and the debtor will receive written notice of:
(i) whether or not the income execution will be served; and
(ii) the date when deductions will begin;
(4) the income execution is binding until further notice;
(m) and the statements set forth in clause (k) of subparagraph (a)(2)(iv) of
this section.
(3) With regard to debtors who have defaulted on their court- ordered support
obligations and who are unemployed, social services districts should proceed as
follows:
(i) If the amount in default is not sufficient for the implementation of an
income execution, an attempt should be made to obtain a written voluntary
agreement to support, whereby the Department of Labor would be authorized to
withhold the amount agreed upon from the debtor's unemployment insurance
benefits and remit such amount to the SCU; or
(ii) If the amount in default is sufficient for the implementation of an income
execution, action should be taken as set forth in paragraph (2) of this
subdivision.
(c) In cases in which attempts to enforce a support order have been
unsuccessful, the child support enforcement unit, at the time such attempts
fail, must examine the reasons for the failure and determine when, in the
future, it would be appropriate to. take enforcement actions and, at that time,
take such actions.
(d) Additional Enforcement Action. The child support enforcement unit, in
addition to following the procedures set forth in subdivisions (a) and (b) of
this section, must employ all appropriate statutory support enforcement
remedies, within 30 calendar days of identifying a failure to comply with the
support provisions of the order, or of locating the absent parent, whichever
occurs later. If service of process is necessary prior to initiating an
enforcement action, such service must be completed and enforcement action taken
or the child support enforcement unit must document on CSMS unsuccessful
diligent efforts to serve process, as defined in section 347.7 of this Part, no
later than 60 calendar days after identifying a failure to comply with the
support provisions of the order or of locating the absent parent, whichever
occurs later.
(e) Calculation of the amount of additional deduction for income execution.
(1) When an income execution is issued under subdivision (a) or (b) of this
section for a debtor who owes arrears/past due support, the SCU must set the
amount of the additional deduction to be made from the debtor's income. Such
deduction must be in addition to the amount withheld to ensure compliance with
the support obligation directed in the order of support. The amount of the
additional deduction must be set as follows:
(i) If the income from which deductions are to be made represents wage, salary,
commission, draws on commissions, pension, or retirement income, or other
periodic payments, including but not limited to workers' compensation,
disability, social securily, or unemployment insurance benefits income, the
amount of the additional deduction shall be one-half (50%) of the amount of the
current support obligations, at the same frequency as the current support
obligation. Where a current support obligation no longer exists the additional
amount shall be one and one-half (150%) ofthe amount of the most recent current
support obligation greater than zero, at the same frequency as the most recent
support obligation. Where no current support obligation ever existed for current
support but support arrears were established by the court, the additional amount
shall be the amount of the arrears divided by 12, payable in monthly
installments.
(ii) If the income is from a source not identified in subparagraph (i) of this
paragraph including, but not limited to, lump sum payments of bonuses, interest,
dividends, workers' compensation, disability, Social Security, or unemployment
insurance benefits income, the amount of the additional deduction shall be the
total amount of arrears/past due support. Provided, however, that two or more
periodic payments of workers' compensation, disability, Social Security, or
unemployment insurance benefits income disbursed to a debtor as a single payment
shall not be considered a lump sum payment, but shall be treated as separate
periodic payments, each subject to deduction pursuant to subparagraph (i) of
this paragraph.
(2) Where the debtor provides documentary proof to the SCU that the imposition
of the additional amount would reduce the debtor's remaining income below the
self-support reserve, the SCU must eliminate or reduce the amount of the
additional deduction as appropriate to ensure that the debtor's remaining income
does not fall below the self support reserve. Thereafter, the SCU must increase
the amount of the additional deduction to the amount calculated pursuant to
paragraph (1) of this subdivision at such time as its application would no
longer reduce the debtor's remaining income below the self- support reserve.
(3) Where the debtor provides documentary proof to the SCU that the debtor has
physical custody of the children who are the subjects of the support order, and
a current support obligation no longer exists, the SCU may modify the amount of
the additional deduction after taking into account the debtor's income and
ability to support such children.
(4) The amount of the additional deduction for an income execution must be
eliminated by the SCU upon satisfaction of the arrears1post due support.
(5) The SCU must maintain on CSMS a record of any action to eliminate or modify
the amount of the additional deduction.
(f) Issuance of income executions upon request. Upon request of the debtor, the
SCU must issue an income execution pursuant to subdivision (a) of this section.
Upon receipt of a written revocation of the debtor's request for an income
execution, the SCU must notify the employer or income payor that the income
execution is no longer effective and that it must be returned to the SCU.