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.

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