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) (1) 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 respondent earns wages 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 paragraph, the court shall state expressly in the order of support the basis for its decision. In entering the income deduction order, the court shall specify an amount to be withheld by the debtor's employer, which shall be sufficient to ensure compliance with the order of support and also shall include an additional amount to be applied to the reduction of arrears, if any, and shall specify the names, addresses, and social security numbers of the parties to the support proceeding and the mailing address of the unit within the state office of temporary and disability assistance designated to receive such deductions. The court shall transmit copies of such order to the parties and to such unit. (2) An employer served with an income deduction order entered pursuant to this subdivision 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 remit payments to the state office of temporary and disability assistance pursuant to subdivision fourteen of section one hundred eleven-b of the social services law within ten days of the date that the debtor is paid. Each payment remitted by the employer shall be made payable to the creditor named in the order, and shall include the names, addresses, and social security numbers of the debtor and the creditor, and the date and the amount of each withholding of the debtor's incomeincluded in the payment. An employer 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 of the amounts specified shall not relieve the debtor of the underlying obligation of support. If an employer shall fail to so pay the creditor, the creditor may commence a proceeding against the employer 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 by the same employer. An employer must notify the creditor 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. 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. (d) 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 chapter, and if the combined total amount of the income to be withheld exceeds the limits set forth in subdivision (c) 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. (e) 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. (f) A creditor shall not be required to issue process under section 5241 of this article prior to obtaining relief pursuant to this section. (g) Where the court issues an income deduction order for support enforcement payable to the support collection unit, as defined in paragraph nine of subdivision (a) of section 5241 of this article, each payment remitted by an employer or income payor shall include, in addition to the identity and social security number of the debtor, the date and amount of each withholding of the debtor's income included in the payment.