Shabbat Parashat Bechukotai| 5771
P'ninat Mishpat: The Ability to Freeze a Divorce Settlement When the Situation Changes from Expectations(condensed from Shurat Hadin, vol. VII, pp. 305-312)
Case: A couple arrived at a divorce settlement that included child support. A few months later the wife (=pl) told beit din that she refuses to accept a get and wants the provision concerning child support redone because their son has since been diagnosed with epilepsy. The husband (=def) says that the child functions normally on a regular basis without medication, so there is no increase in expenses, but he is willing to obligate himself to pay for future health-related expenses.
Ruling: According to the regulations of the courts, a litigant can reopen an agreement that was confirmed by the courts if it was made based on misinformation that would affect its appropriateness. Beit din can decide to freeze and review the matter based on the arguments presented by one side. In this case, all agree that the agreement preceded the diagnosis of epilepsy. However, the Law of Contracts states that if, despite the misinformation, the agreement can be upheld if one remedies the affected issue, the agreement as a whole should be salvaged. This applies to the case at hand, as def’s willingness to accept medical expenses addresses the new situation reasonably.
Pl still has a claim that she should not be bound by a divorce settlement when the divorce did not take place. [The ruling surveyed piskei din by distinguished panels in the past; we will just mention some basic conclusions.] The overall principle of batei din is to see the divorce as a condition for the divorce settlement to take effect. One exception is when the sides already started carrying out the agreement prior to the giving of the get. A distinction is made between agreements that affect issues that are connected to the dissolution of the marriage and between those matters that need resolution irrespective of divorce. In the latter category, which includes child support, if there is no stipulation otherwise, the agreement goes into effect as soon as it is confirmed by the court. Others say that by calling an agreement a “divorce settlement,” the divorce is not so much a condition but a starting point for carrying out the agreement, unless stipulated otherwise or the context indicates that it is to begin immediately.
If a monetary agreement seems illogically weighted to one side, it makes more sense that it was accepted as incentive to a reluctant spouse to agree to divorce, and the agreement is contingent on it. However if a free standing monetary agreement is logical, it can be assumed to exist even if one side refuses to take part in the get. An example of this is when beit din helps the sides arrive at an agreement regarding child custody, which is not contingent on divorce.
In this case, part of the agreement is connected to divorce, including pl’s agreement to a reduction in child support after the get is given. On the other hand, since it is obvious that there is no chance of or interest in this couple living as husband and wife, pl must agree to receive a get, and if she does not do so, child support will be stopped.
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