One issue that often comes up when someone owes child support or spousal support arrears is how those arrears are to be collected. One of the more common methods is through the use of income execution for support enforcement under CPLR §5241.
CPLR §5241 allows the attorney for the party to whom to child support or spousal support are owed to obtain up to 65 percent of the debtor’s disposable earnings to pay both past due and current amounts of child support, alimony or maintenance, plus provision of health insurance for dependents. CPLR §5241(h) notes that a levy on this type of execution has priority “over any other assignment, levy or process.”
Similar to the income execution for support enforcement is the income deduction order for support enforcement authorized by CPLR §5242. Such an order is issued by the court at the same time it issues an order of support. It allows deduction of the same percentages from debtor’s income payable to the creditor and the same number-one priority over all other assignments, levies or process against the income of the debtor.
If you are a debtor, a deduction of 65% of disposable earnings is likely to be unmanageable. So what can be done? The answer is contained in CPLR §5240, which allows the court to modify terms of garnishment. In Fishler v. Fishler, 154 A.D.3d 917 (2nd Dep’t 2017), the debtor was served with an execution for the maximum percentage permitted, 65% of disposable earnings. The Appellate Division, having reviewed financial circumstances of the debtor, reduced percentage collected to 40% of disposable wages. In making its decision, the court was seeking to strike “a fair balance between the needs of a creditor holding a valid money judgment and the needs of a debtor managing competing financial obligations”.
One additional issue is worth mentioning. If child support or spousal support are being collected by New York State Child Support Enforcement Unit, those arrears will be collected by increasing the amount garnished by 50% of the current payment due. Debtor paying such arrears may apply for a lower payment amount on arrears, the so-called administrative adjustment, but such modification is discretionary with CSEU and requires an application and proof of financial circumstances.