In an interesting unreported opinion in the case of Tiger v. Tiger released on April 21, 2010, the Appellate Division affirmed an Order enforcing a Property Settlement Agreement and post-judgment Consent Order and denying the husband’s request for an ability to pay hearing regarding alimony and the remainder of his equitable distribution obligation.
After a 35 year marriage, the parties were divorced in 2005 and the husband was required to pay short term alimony and $150,000 in equitable distribution over 4 years. The husband failed to pay his 2007 and 2008 obligations but never filed a motion seeking modification. The wife, however, filed an enforcement motion in 2007 and the husband was ordered to pay the $40,000 owed. The husband filed a motion for reconsideration wherein his alimony was reduced from $70,000 to $50,000 and he was granted more time to pay his equitable distribution payment. He then failed to pay his 2008 equitable distribution payment and another enforcement motion ensued. A plenary hearing was ordered as a result but the hearing never happened because the parties entered into a Consent Order wherein the husband agreed not to seek to modify the equitable distribution again and not to seek to modify the alimony before 1/1/10. Not surprisingly, he failed to comply and another enforcement motion was filed in late 2008. The husband used the economic situation in the real estate industry as a reason for his non-compliance. The trial court denied his motion finding that the husband was a sophisticated business man who entered into the consent order will full knowledge of the economic situation in the real estate industry. The appeal ensued.
The Appellate Division affirmed holding that the husband was bound to his agreement not to seek a modification. As to the husband’s argument that he was denied an ability to pay hearing, the Appellate Division held:
Finally, as defendant argues, plaintiff was not entitled to an ability-to-pay hearing, as the requirement for such a hearing does not arise until after an arrest warrant has been issued and the defaulting party has either voluntarily surrendered or is brought before the court.
Put another way, you don’t get an ability to pay hearing unless you are about to go to jail.
The general rule is that equitable distribution is not modifiable in terms of the amount owed, but sometimes the terms can be modified. The husband in this case got many chances, possibly too many chances, and eventually it appeared that enough was enough. While some may see this as punitive, he was simply required to do what he agreed to do. In the meantime, his alimony had been reduced. What is so wrong with that?