Report in Support of Legislation Regarding Stipulations and Agreements for Child Support in Family Court and Matrimonial Proceedings

REPORT ON LEGISLATION BY THE MATRIMONIAL LAW COMMITTEE

A.7802 (M. of A. Lavine

S.7077 (Sen. Hoylman)

AN ACT to amend the family court act and the domestic relations law, in relation to agreements and stipulations of child support (Office of Court Administration (Internal #51-2021))

THIS BILL IS APPROVED

The Matrimonial Law Committee of the New York City Bar Association supports the proposed bill, which would amend F.C.A. §413(1)(h) and D.R.L. §240(1-b)(h) to revise the procedures to be followed where the required Child Support and Standards Act (“CSSA”) language has been omitted from an agreement regarding the payment of child support.

The Family Court Advisory and Rules Committee to the Chief Administrative Judge of the Courts of the State of New York has been expressing concern since 2016 about the lack of specificity in those procedures, particularly regarding whether courts should invalidate child support provisions retroactively if they are part of a stipulation or agreement that does not include the required recitations.  As we noted in a June 23, 2016 letter to the Office of Court Administration, the Matrimonial Committee shares those concerns.[1]  In one case, problems with child support recitations forced the state courts to annul three agreements and consider de novo a petition more than eight years old.[2]  The bill addresses those issues by making clear the effective date of any invalidation.  We do not understand this bill to change existing law regarding when a CSSA violation is sufficiently severe to invalidate the child support provisions of a stipulation or agreement.

The language in the bill also resolves some drafting concerns that had been raised by other proposed legislation on this topic.  Some proposals would have invalidated an entire agreement, including all provisions relating to other issues which may be entirely unrelated to the concerns underlying the requirement to include CSSA recitations.  The bill provides that the “sections relating to child support in any agreement, stipulation or court order . . . shall be deemed void” if the necessary recitations are omitted, as will sections “so directly connected or intertwined with the basic child support obligation that they necessarily must be recalculated therewith.”[3]  That language preserves existing law.  See Cimons v. Cimons, 53 A.D.3d 125, 129-30, 861 N.Y.S.2d 88 (2008).

New §413(1)(h)(8) and D.R.L. §240(1-b)(h)(8) clarify how the statute will apply in Family Court, which is a court of limited jurisdiction.  Those paragraphs direct the Family Court to dismiss, without prejudice, certain actions that must be re-filed in Supreme Court in order to make the necessary changes to an agreement, stipulation, or order.  Simultaneously with such a dismissal, the Family Court can grant a money judgment for arrears that had accrued before the date when the CSSA recitation problem was pointed out, because the problem will only invalidate the agreement, stipulation, or order as of that date.  The Supreme Court can then grant a money judgment or other relief for arrears accrued after that date.  In the small category of cases that must be dealt with in Supreme Court, the Family Court should help pro se litigants to understand that they should re-file in Supreme Court.  Some additional training or publicity materials may help in that regard.

For these reasons, the Committee supports this bill.

Matrimonial Law Committee
Michael Stutman, Chair

Reissued March 2022*