Shabbat Parashat R'ei | 5770
P’ninat Mishpat: The Validity of a Divorce Agreement Whose Applicability Lapsed
(condensed from Mishpetei Shaul, siman 24)
Case: A couple with children got divorced, at which time there was a divorce agreement that included a sum of money to give to the mother, who had custody for the children’s child support. Later on, the father assumed custody, and child support payments ceased. Now the children have returned to their mother’s custody, and she wants to reactivate the old agreement.
Ruling: Rav Y. Kapach: The former agreement is like a contract whose financial rights were forgiven, which cannot be used again (see Shulchan Aruch, Choshen Mishpat 48:1). Although the obligation to the children continued all along and was just carried out differently, the divorce agreement was an obligation in relation to the wife, in whose regard it ceased to function. This is similar to the following case that the Radvaz (IV, 554) discussed. A man married a woman and obligated himself to support her children from a previous marriage as long as the two remained married. In order to get out of this obligation, he divorced her and remarried without repeating the stipulation. The Radvaz said that the obligation fell off and is not automatically restored. This is all the more true in this case where the obligation ceased without such conniving. The father should provide the amount of support that it is now appraised, considering his capabilities, as the father is incapable of supporting himself and the children according to the original agreement.
Rav S. Yisraeli: I do not fully agree with the above. The pertinent part of the original agreement was to obligate the father toward his children, and it was done through a binding kinyan. It used the mother only as a conduit for that payment. A later agreement with the mother will not undo that element. In truth, the obligation engendered in the original agreement is not so much a new obligation, as he is obligated to them as a father. Rather, it is an agreement as to how to carry out that obligation, so that legal actions will not have to be constantly taken. There is no reason that this evaluation should cease to exist just because there was a time when it was not applicable, as the father was supporting them directly.
Where the father’s claim has validity is in regard to Bituach Leumi (roughly, Social Security) payments. Sometime after the father obligated himself, the arrangement became that the Bituach Leumi money goes directly to the children’s primary caretaker. It is illogical that this added form of support for them should go on while the father has to continue to pay as much as he did before. It is true that if one obligates himself to support his step-daughter, he must continue to do so even after divorce and her remarriage to someone else who is supporting her (Ketubot 101b). However, that is true regarding one who accepts a new obligation. Here where the agreement was to set at a logical level of support according to the old arrangement, the change in Bituach Leumi policy must be factored in.
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