At some point in a New York divorce case, the court will generally make a child support determination, a spousal support determination, or both. Support determinations can have an enormous effect on both of the parties to the divorce, and the court is supposed to rely on specific information when making them. However, in some cases, when an income execution for an employer to take the support direct from the obligor’s pay is made by the support collection unit, the income execution may contain information that was not correct, or it may have not have all of the relevant information. In such cases, New York family law allows for the adversely affected party (the debtor) to bring this to the court’s attention. Under New York Consolidated Laws, Article 52, section 5241(e), the party can claim that the income was based on a “mistake of fact.” It should be noted that this process is different than the process for making written objections to the support order itself which is the subject of other articles in this blog and on my website.
A mistake of fact is defined as “an error in the amount of current support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated.” Most commonly, the mistake is related to the amount of support ordered by the court.
In order to effectively bring the support collection unit’s attention to a mistake of fact, the party must file an objection with the agency within 15 days of the time the party was served with the order. Depending on whether the income execution was made by an attorney or the support collection unit, the party should file an objection either with a local court that has jurisdiction over the case or with the support collection unit.
When someone makes his/her objection, he/she is allowed and encouraged to submit supporting documentation establishing that the current support order was based on a mistake of fact. Once filed, the court or agency receiving the objection will have up to 45 days to review the merits of the objection and inform of the result.
If the party fails to file an objection within 15 days of service, or if the debtor’s objection is overruled by the reviewing authority, the support order will become effective. Once a support order is effective, the party for whom the support is designated (the creditor) can garnish the wages of the debtor. Of course, this discussion does not affect a party’s right to alter a support arrangement if there is a material change in circumstances.
Are You Subject to a Mistaken Support Income Execution?
If you are currently involved in a New York divorce, and you believe that you are subject to a support income execution that was based on a mistake, you should reach out to the Law and Mediation Office of Darren M. Shapiro, P.C. Attorney Shapiro has extensive experience handling all types of New York child support and spousal support cases, and he knows what it takes to be successful on behalf of his clients. Do not assume that your former partner will treat you fairly; make sure that your rights are protected. To learn more, and to schedule a free consultation with Attorney Shapiro, call 516-333-6555 today.
More Blog Posts:
New York Divorce and Claiming Children as Dependents Under the New Tax Law, Long Island Family Law and Mediation Blog, January 15, 2018
Addressing Client Rights and Responsibilities in Family Law Cases, Long Island Family Law and Mediation Blog, February 3, 2018