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 Shabbat Parashat Shelach| 5765P’ninat MishpatReducing Child Support Because of the Father’s Inability to Pay - Based on Piskei Din Rabbaniim - vol. XVII, pp. 311-320
Case: In a divorce settlement, the husband agreed to pay a certain amount of child support for the couple’s two children until they turn 18. He is now remarried and has two new children. As payments from the divorce settlement are half of his present salary, he stopped making those payments in full, and his ex-wife sued him to fulfill his contractual obligation. His present wife also sued him to make him pay properly for his obligations toward her and their children. He is incapable of doing both and requested to have the amount of child support to his older children reduced, as his ex-wife is financially able to contribute more toward their needs than she does.
Ruling: A father is obligated to support his children (at least when they are small). Generally, if he cannot provide fully for all of them, money should be distributed among them equitably, while giving precedence to children under six, to whom the obligation is stronger. Also, if by paying one’s creditor in full, a debtor would become impoverished, we leave him with only minimal provisions. The creditor has precedence over the debtor’s wife and children, as their monetary rights are based only on rabbinic law (Shulchan Aruch, CM 97:24). The question is whether the contractual obligation to the first children makes them like creditors, giving them precedence over the younger children, or whether they are of the same level, requiring that we adjust the generous amounts promised in the divorce settlement so that all of his children can receive a fair share.
The Beit Yosef asks why creditors who lend money after a debtor’s marriage have precedence over his wife. After all, a groom is obligated by a binding conract (the ketuba) to support his wife, which should make the obligation one of Torah law. This question has three answers. 1) Beit Yosef- since support of one’s family is an obligation that renews itself, it is considered that the obligation to the creditor precedes the needs of the family that arise subsequent to the loan. 2) Perisha- one who has his rabbinic obligation to his family written in a document does not intend to create a new obligation, but to formalize the existing one. Thus, the obligation does not become a Torah-level obligation like a loan. 3) Zera Avraham- one cannot create a new obligation on something he is already obligated in. Thus, support of the family remains a rabbinic obligation.
Minority Opinion: According to the Perisha and Zera Avraham, the divorce settlement doesn’t alter the nature of the first children’s rights, as the institution of the Chief Rabbinate and Knesset that a father must support his children until age 18 makes the settlement a rehashing of an existing obligation. Thus, adjustments must be made to address all of the children’s needs equitably.
Majority Ruling: Since the settlement preceded the Chief Rabbinate’s institution and since it includes a higher level of support than law requires, the settlement is considered a new obligation of Torah level. Thus, it has precedence over the new family’s needs and must be paid in full.
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