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FCA - FUTURE CLERK 2023: THE CLERKENING > Article 4 Volume 4 > Flashcards

Article 4 Volume 4 Flashcards

1
Q

451- CONTINUING JURISDICTION

The court maintains continuing jurisdiction over any support proceeding until its judgment is completely satisfied, and may modify, set aside or vacate any order.

This is with exception to interstate orders of support in Article _____

A

5-B

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2
Q

451- CONTINUING JURISDICTION

A proceeding to modify an order of support shall be commenced by the filing of a petition, based on the following grounds:

  1. A substantial change in circumstances

NEW NEW NEW PROVISION:

    • Incarceration shall NOT be considered voluntary unemployment and shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment.
  1. _____ have passed since the last order was made, modified or adjusted
  2. There has been a change in either party’s gross income by _____ or more.
    • A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment, commensurate with his or her education, ability, and experience
A

Three (3) years…..15%

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3
Q

451- CONTINUING JURISDICTION

The court is not required to hold a hearing unless the party requesting the modification submits an ________________ , which would establish a change in circumstances, if proven.

A

affidavit

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4
Q

451- CONTINUING JURISDICTION

All modifications are effective as of the date ________

A

the petition was filed.

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5
Q

453- PETITION; VIOLATION OF COURT ORDER.

A petition for violation of a court order may be made by:

  1. The original __________________
  2. The support collection unit
  3. Any other person to whom the support is _____________
A

petitioner ……….payable

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6
Q

453- PETITION; VIOLATION OF COURT ORDER.

KNOW THIS A summons will be issued upon the filing of such a violation petition.

  • lt is served in the same manner as a first summons for support and will include language that a respondent’s failure to appear in court can result in arrest and a finding of willful failure to comply with previous order can result in a commitment to jail for a term not to exceed _________ and that they have a right to counsel

The court can issue a warrant directing the respondent be arrested and be brought before the court

A

SIX (6) MONTHS

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7
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

Upon a finding that a respondent has willfully violated an order of support, the court:

  1. (MAY/SHALL) enter a money judgment
A

SHALL

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8
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

Upon a finding that a respondent has willfully violated an order of support, the court:

  1. (MAY/SHALL) make an income deduction order
    Garnishments (IDO)
  • A garnishment is an order which requires an employer to transfer money from his employee’s paycheck to a person specified in the order.

There are two types of garnishments:

  • an Income Deduction Order issued by ______________ and
  • an Income Execution Order, issued by ___________ or by an attorney.
A

MAY…………. the court………SCU

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9
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

Upon a finding that a respondent has willfully violated an order of support, the court:

  1. (MAY/SHALL)order the respondent to post an undertaking
A

MAY

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10
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

Upon a finding that a respondent has willfully violated an order of support, the court:

  1. (MAY/SHALL) make an order of sequestration
  • If the respondent has violated the order of support AND either leaves the state or threatens to leave the state, the court may “sequester” any of the respondent’s property found within New York State.
  • Once sequestered, the court “takes control” of the respondent’s property and can force the _________ of the property while ordering the proceeds to be paid to the petitioner, or direct that any property _____________ received be paid to the petitioner. (Secs. 457 & 429)
  • This order can be made in limited situations even before the order of support is entered (see, FCA Sec 429).
A

MAY………… sale…….. rent

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11
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

Upon a finding that a respondent has willfully violated an order of support, the court:

  1. (MAY/SHALL) suspend driving privileges, state licenses, recreational licenses
A

MAY

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12
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

Upon a finding that a respondent has willfully violated an order of support, the court:

  1. MAY require the respondent to participate in work activities (under social service law) when the recipient of the support order that was violated is on __________
A

public assistance

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13
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

Upon a finding that a respondent has willfully violated an order of support, the court:

  1. (MAY/SHALL) require participation in job training, employment counseling or other programs, which lead to employment
A

MAY

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14
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

Upon a finding that a respondent has willfully violated an order of support, the court:

  1. Collection through Support Collections Unit - SCU acts as an agent for the petitioner in collecting child support. When the petitioner requests SCU services, the support money is paid to them and they remit the payments to the petitioner. SCU keeps account of the amount paid and any arrears which are owed.
A

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

Upon a finding that a respondent has willfully violated an order of support, the court:

  1. Collection through Support Collections Unit - SCU acts as an agent for the petitioner in collecting child support. When the petitioner requests SCU services, the support money is paid to them and they remit the payments to the petitioner. SCU keeps account of the amount paid and any arrears which are owed.
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15
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

lf there is willful failure to obey a support order the court (MAY/SHALL) order the respondent to pay counsel fees to the attorney representing the petitioner

A

shall

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16
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

ln addition or in lieu of the above remedies the court may also:

  1. Commit the respondent to jail for up to _______
  2. Require the respondent to participate in a _________________ program
  3. Place the respondent on ________________ in accordance with the CPL
A

six months…….rehabilitation………… probation

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17
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

(SET TO EXPIRE 08/2023 - now 2025)
support collection unit’s denial of a challenge

The court may review a support collection unit’s denial of a challenge made by a support obligor regarding the possible suspension of his driving privileges.

A

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

(SET TO EXPIRE 08/2023)
support collection unit’s denial of a challenge

The court may review a support collection unit’s denial of a challenge made by a support obligor regarding the possible suspension of his driving privileges.

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18
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

(SET TO EXPIRE 08/2023 - now 2025)

support collection unit’s denial of a challenge

The support obligor may file objections to the denial within ______ of the mailing of the denial.

A

35 DAYS

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19
Q

454 - POWERS OF THE COURT ON VIOLATION OF A SUPPORT ORDER

(SET TO EXPIRE 08/2023 - now 2025)
support collection unit’s denial of a challenge

Within ___________ of the obligor filing his objections, the support collection unit may file a rebuttal, and the court within _______ after the rebuttal is filed shall either:

  1. Deny the objections and send it back to the support collection unit
  2. Affirm the objections and direct that the DMV not be notified to suspend the obligor’s driving privileges
A

10 DAYS…… 45 DAYS

TIMELINE 35-10-45

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20
Q

455- Commitment.

  • The court may at any time suspend an order of commitment as the court deems appropriate to carry out the purposes of this article. A person may demonstrate to the court that they are unable financially to comply with the order of support at which time the court in its discretion may modify such previous orders or suspend an order of commitment.
    • ln other words you shouldn’t be put in jail due to your financial difficulties
  • This is an interesting provision:
    • If a spouse is imprisoned for failing to pay support for the other spouse, they will not be held in contempt for failing to pay support during the period of their imprisonment.
A

455- Commitment.
The court may at any time suspend an order of commitment as the court deems appropriate to carry out the purposes of this article. A person may demonstrate to the court that they are unable financially to comply with the order of support at which time the court in its discretion may modify such previous orders or suspend an order of commitment.
ln other words you shouldn’t be put in jail due to your financial difficulties

This is an interesting provision: Notwithstanding any inconsistent provision of this article, the provision of any order issued under this article requiring the payment of money by one spouse for the support of the other shall be suspended and inoperative so far as punishment for contempt is concerned during the period in which the defaulting spouse is imprisoned pursuant to any order adjudging him or her in contempt for failure to comply with any provision in such order.

21
Q

456 Probation.

A person placed on probation under this article (MAY/SHALL) remain there until there is no longer an applying order of support, order of protection or order of visitation. The court may at any time revoke an order of probation. At such time the probationer must be brought before the court, which may, without hearing impose any other order

A

MAY

22
Q

457 ORDER OF SEQUESTRATION ON FAILURE TO OBEY SUPPORT ORDER

Failure to obey a support order along with the threat of____________ the state or actually _____________ the state can result in an order of sequestration of the person’s property within the state

A

leaving…….. leaving

23
Q

458a, b and c- lf the respondent has accumulated arrears for a period of _______ or more, the court may order the suspension of driving privileges, state licenses, occupational licenses and recreational licenses

This does not apply to respondents who are on_____ or (SSI/SSD?) or whose income is below the ______ or as a result of the order will fall below the self support reserve

A

FOUR (4) MONTHS …. public assistance, SSI …. self support reserve

24
Q

459- ADDITIONAL ARREARS.
A party may amend an enforcement petition to include any additional arrears which may have accrued as long as written notice of the intent to amend is on _____ DAYS notice

A

EIGHT (8)

25
Q

460- ENTRY AND DOCKETING OF A MONEY JUDGMENT.

lf it’s determined a party is in default of an order pursuant to this section, the court shall make an order directing the entry of a judgment for the amount of arrears together with costs and disbursements

A

460- ENTRY AND DOCKETING OF A MONEY JUDGMENT.

lf it’s determined a party is in default of an order pursuant to this section, the court shall make an order directing the entry of a judgment for the amount of arrears together with costs and disbursements

26
Q

460- ENTRY AND DOCKETING OF A MONEY JUDGMENT.

A certified copy of such order shall be entered in the office of __________ in which the proceeding was commenced to be docketed in the same book and in the same manner for docketing of all other judgments. lt will have the same force and effect as a docketed judgment entered by the Supreme Court

A

the clerk of the county

27
Q

461- DUTY TO SUPPORT CHILD AFTER SEPARATION AGREEMENT, SEPARATION, OR TERMINATION OF MARRIAGE

A separation agreement or a judgment terminating a marriage (DOES/DOES NOT) eliminate or diminish either parent’s duty to support a child of the marriage

A

DOES NOT

28
Q

461- DUTY TO SUPPORT CHILD AFTER SEPARATION AGREEMENT, SEPARATION, OR TERMINATION OF MARRIAGE

The family court (MAY/SHALL) entertain a petition for support if no previous order has been made by the supreme court

A

MAY

29
Q

461- DUTY TO SUPPORT CHILD AFTER SEPARATION AGREEMENT, SEPARATION, OR TERMINATION OF MARRIAGE

lf the supreme court has made an order and has not indicated in such that they will maintain __________________, then the family court may:

  1. Entertain an application to enforce the order
  2. Entertain an application to modify such order in accordance with FCA 451 (2)
A

exclusive jurisdiction

30
Q

461- DUTY TO SUPPORT CHILD AFTER SEPARATION AGREEMENT, SEPARATION, OR TERMINATION OF MARRIAGE

The supreme court may refer an application to the family court for determination on the issues of support on its own motion or on the motion of one of the parties

A

461- DUTY TO SUPPORT CHILD AFTER SEPARATION AGREEMENT, SEPARATION, OR TERMINATION OF MARRIAGE

The supreme court may refer an application to the family court for determination on the issues of support on its own motion or on the motion of one of the parties

31
Q

462- EFFECT OF SUPPORT ORDER IN MATRIMONIAL ACTION ON DURATION OF FAMILY COURT SUPPORT ORDER FOR CHILD

The family court child support order generally terminates upon the issuance of an order of support issued as part of a _______ in the supreme court unless the supreme court continues the order of support

A

divorce

32
Q

63- EFFECT OF SEPARATION AGREEMENT ON DUTY TO SUPPORT A SPOUSE.

A separation agreement (DOES/DOES NOT) preclude the filing of a petition for support of a spouse who will likely need public assistance

A

DOES NOT

33
Q

464- EFFECT OF PENDENCY OF ACTION FOR DIVORCE, SEPARATION OR ANNULMENT ON PETITION FOR SUPPORT OF A SPOUSE.

This section repeats the supreme court’s ability to refer matters to the family court to determine an application for temporary or permanent support, or for maintenance or a distribution of marital property.

A

464- EFFECT OF PENDENCY OF ACTION FOR DIVORCE, SEPARATION OR ANNULMENT ON PETITION FOR SUPPORT OF A SPOUSE.

This section repeats the supreme court’s ability to refer matters to the family court to determine

34
Q

465- EFFECT OF DENIAL OF SUPPORT IN ACTION FOR SEPARATION

Even after the supreme court may have denied support to a spouse, the family court may entertain a petition and make an order for support of such spouse if:

  1. The circumstances of the parties have changed
  2. The petitioner is likely to become in need of public assistance
A

465- EFFECT OF DENIAL OF SUPPORT IN ACTION FOR SEPARATION

Even after the supreme court may have denied support to a spouse, the family court may entertain a petition and make an order for support of such spouse if:

  1. The circumstances of the parties have changed
  2. The petitioner is likely to become in need of public assistance
35
Q

466 - EFFECT OF GRANTING OF SUPPORT IN ACTION FOR DIVORCE, SEPARATION OR ANNULMENT.

The supreme court may indicate in an order that only they may enforce or modify a support order or they may indicate that only the family court can upon a finding of a change in circumstances warranting such

The family court may even modify or enforce a support order from a court of competent jurisdiction outside of New York when necessary

A

466 - EFFECT OF GRANTING OF SUPPORT IN ACTION FOR DIVORCE, SEPARATION OR ANNULMENT.

The supreme court may indicate in an order that only they may enforce or modify a support order or they may indicate that only the family court can upon a finding of a change in circumstances warranting such

The family court may even modify or enforce a support order from a court of competent jurisdiction outside of New York when necessary

36
Q

467- REFERRAL BY SUPREME COURT OF APPLICATIONS TO FIX CUSTODY IN ACTION FOR DIVORCE, SEPARATION OR ANNULMENT

The supreme court may refer matters to the family court for the purpose of fixing ___________ or _________________

A

custody or visitation

37
Q

469- RULES OF COURT; VENUE.

When the supreme court refers a matter to the family court it may designate a county within the _______ as the county which the application will be determined

A

judicial district

38
Q

477- Undertaking for support and cash deposits

The court may in its discretion require either a written undertaking of sufficient surety approved by the court or may require that ______________be posted to secure compliance by the respondent with the order of support

A

cash

39
Q

477- Undertaking for support and cash deposits

Such undertaking shall be for a definite period not to exceed _________ and the amount of the principal of the undertaking shall not exceed _________ worth of payments according to the order of support

A

THREE (3) YEARS ……. THREE (3) YEARS

40
Q

477- Undertaking for support and cash deposits

  • The respondent may deposit cash with ______ or when the court so orders, with the support collection unit
  • When such cash has been deposited with the support collection unit and the respondent fails to make any payment, when due, within such period, payment shall be made by the support collection unit to the petitioner out of such cash
  • When the period for which the security was ordered has expired, the person or persons who posted the cash will be entitled to a refund, less any amount that was paid to the petitioner.
A

the clerk,

41
Q

472- UNDERTAKING TO BE FILED
lf the property securing the undertaking is real estate, then a lien shall be placed on the real estate and filed with the ________ in the county where the property is located

A

county clerk

42
Q

473- SUBSTITUTION OF SURETY.

The court may accept a new undertaking in lieu of a previous undertaking

A

473- SUBSTITUTION OF SURETY.

The court may accept a new undertaking in lieu of a previous undertaking

43
Q

474- DEFAULT

A default in the order shall constitute a breach in the __________.

  • At this time the surety will be served personally or by registered mail to appear in court and show cause why a judgment should not be entered upon the undertaking.
  • lf the surety appears and pays the arrears the court may__________ the forfeiture
A

undertaking……… remit

44
Q

475- PROCEDURE AS TO DEFAULTS

  • The surety can contest the default.
  • If default is found by the court, a certified copy of a default order will be filed with the county clerk along with a certified copy of the undertaking and it shall be docketed as ____________
A

JUDGMENT

45
Q

476- FORFEITURES APPLIED TO SUPPORT OF PETITIONER.

All sums collected from the surety shall be applied by the clerk of the court to the support of ________

If the respondent in a support order has deposited money with the court as surety and then dies, the court (MAY/SHALL) order that the money still in its possession be paid to the petitioner in conformance with the order of support.

A

the petitioners ……… MAY

46
Q

477- SURRENDER OF RESPONDENT BY SURETY.

A surety may at any time surrender a respondent to the court to be dealt with as provided in the order of support

A

477- SURRENDER OF RESPONDENT BY SURETY.

A surety may at any time surrender a respondent to the court to be dealt with as provided in the order of support

47
Q

478- TERMINATION OF SURETY’S LIABILITY

When the liability of an undertaking has ceased the court will make an order indicating such and the county clerk will discharge the record of a lien of the undertaking if there is one

A

478- TERMINATION OF SURETY’S LIABILITY

When the liability of an undertaking has ceased the court will make an order indicating such and the county clerk will discharge the record of a lien of the undertaking if there is one

48
Q

479- WHEN NEW SECURITY REQUIRED.

lf after an undertaking has been given it has been found to be ineffectual in some way or just not sufficient, the court may direct the appearance of the respondent by summons or warrant of arrest and require him to give new or additional security

In default thereof the court may commit him under the __________ in the manner hereinabove provided.

A

original order

FCA - FUTURE CLERK 2023: THE CLERKENING (46 decks)

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