Breach of a divorce agreement: what to do when the other side does not comply
A divorce agreement approved by the family court or the rabbinical court is a judgment in every respect. When one party stops paying child support, delays the division of property, ignores the parenting schedule or refuses to grant the get, the law offers the injured party several enforcement routes, and each fits a different kind of breach.
"The party in breach almost always assumes nothing will happen. My job is to make sure that assumption proves wrong quickly."
Adv. Ester Efrati · Head of the Family and Inheritance Department
What makes a divorce agreement enforceable
A divorce agreement is a complex legal document of decisive importance. It settles every aspect of the dissolution of the marriage: the get procedure, child support and sometimes spousal support, the ketubah, the division of joint property, custody and parenting time. The agreement reflects a delicate balance of mutual concessions, so every clause rests on the others.
What distinguishes a divorce agreement from an ordinary contract is judicial approval. An agreement approved by the family court or the rabbinical court acquires the force of a judgment, and its property clauses are approved as a financial agreement under section 2 of the Spouses (Property Relations) Law. The practical meaning is twofold: the agreement can be filed for execution with the Enforcement and Collection Authority without a new lawsuit, and a breach of it is also a breach of a court order, with all the tools the law provides against a person who violates such an order.
An agreement signed by the spouses but never approved is only a contract. It can still be enforced, but only through a contractual claim, and its property clauses may lack validity as a financial agreement. The first check in any breach case is therefore simple: was the agreement approved, by which forum, and when.
When a breach occurs, and what to do before going to court
A breach of a divorce agreement occurs when one of the spouses, and sometimes both, fails to comply with the terms they signed. The common breaches fall into four groups.
- Financial breach. Non-payment of child support, partial payment, failure to pay the ketubah or a balancing payment set in the agreement.
- Property breach. Refusal to sign the transfer of rights in the apartment, delaying the sale of a joint asset, failure to transfer a share of savings or a pension fund, or failure to pay off a mortgage the breaching party undertook to carry.
- Breach concerning the children. Failure to keep the parenting schedule, returning the children late, repeated cancellations, or unilateral changes to the arrangements.
- Personal breach. Refusal to arrange the get despite an explicit undertaking, or breach of other undertakings such as non-disparagement or confidentiality.
A breach is not always the result of bad intent. Sometimes the breaching party runs into unexpected financial difficulty, dismissal, illness or personal circumstances that prevent compliance. Even then the correct path is an orderly adjustment, by consent or in court, rather than quietly stopping performance. A party who stops paying without applying to the court ends up in the position of the breaching party, even when the reason is justified.
Before applying to court it is worth documenting everything: dates, amounts, written messages, cancelled parenting time and the other side’s responses. A formal warning letter that sets out the breach and a deadline to remedy it resolves a considerable share of cases and serves as evidence later. Where the parents can still talk, approaching a mediator or the court’s support unit can prevent a long proceeding.
Enforcing the property and financial clauses
When the breach concerns the division of property or a monetary obligation, the central tool is execution. An agreement approved as a judgment is opened at the Enforcement and Collection Authority as a file for the execution of a judgment, and the registrar may attach bank accounts, salary, vehicles and rights in real estate, restrict the debtor from leaving the country, and take further steps against a debtor who does not pay.
Alongside execution, the family court is authorised under section 7 of the Family Court Law to supervise the performance of the judgments it gives and to issue implementing directions. In this framework one can request a mandatory order compelling signature on transfer documents, the appointment of a receiver to sell an apartment when one party refuses to cooperate, an injunction preventing the dissipation of assets, and compensation for the damage caused by the delay.
When the breach is blatant and continuing, the Contempt of Court Ordinance is also available. The court may impose a fine or imprisonment on a person who violates a court order, as a coercive measure intended to bring about compliance rather than as punishment. It is a sharp tool, and courts use it when ordinary enforcement has been exhausted or is impossible.
Enforcing a divorce agreement in these ways is meant to ensure that the injured party’s rights are preserved and that the undertakings given are honoured. A family law attorney chooses the route according to the type of breach: execution for clear monetary obligations, and the family court when the agreement needs interpretation or a mandatory order.
Breach of parenting time with the children
Breaches concerning parenting time are the most sensitive, because the main victim is the child. Calling the police, which sometimes looks like an immediate solution, is not the preferred course: the police do not enforce parenting arrangements as a matter of routine, and their involvement can traumatise the children. The effective tools are in the family court.
- Therapeutic process. The court may refer the parents to the support unit or require the breaching parent to attend parental guidance or therapy, with the aim of restoring parenting time.
- Make-up time. Completing cancelled visits at the expense of the breaching parent’s time.
- Financial sanctions. Compensation or a fine for every visit cancelled unlawfully, sometimes in cumulative amounts, together with the costs of the proceeding.
- Changing the arrangement. In serious and continuing breaches, and especially where parental alienation exists, the court may change custody and parenting time and even revisit the level of child support in light of the actual division of time.
Courts give priority to cases of severed contact between a parent and a child: the Supreme Court President’s directive on family cases where the parent-child bond is at risk provides for an expedited hearing, within about two weeks of the application. The earlier the application, the better the chances of restoring the arrangement without harming the relationship.
The other side of the same coin: a parent who does not turn up for the parenting time allotted to him is also in breach, and the other parent may ask to adjust the arrangement and the child support to the reality that has emerged. The agreement binds both parties equally.
Unpaid child support: two collection routes
Child support arrears are the most common breach, and the law offers the creditor two main routes. The right choice depends on the debtor’s situation and the creditor’s income.
The first route is execution, in the dedicated child support track of the Enforcement and Collection Authority. A child support debt enjoys preferred status: salary can be attached at a higher rate than for ordinary debts, restrictions can be imposed on the debtor, and in cases of deliberate refusal an arrest warrant can be sought. This route is effective when the debtor has income or assets that can be attached.
The second route is the National Insurance Institute, under the Maintenance (Assurance of Payment) Law, 1972. A person who holds a child support judgment that the debtor is not paying may ask the Institute to pay the support, up to the ceiling set in the regulations and subject to an income test, and the Institute then collects the debt from the debtor. The advantage of this route is the certainty of a monthly payment; its drawback is the ceiling and the income test, so not every creditor qualifies.
One point must be stressed: the same payments cannot be collected through both routes at once. A person receiving payment from the National Insurance Institute cannot run a parallel execution file for the same months, except for the collection of past arrears. When the judgment exceeds the amount the Institute pays, the difference is paid only after the Institute has collected the full amount from the debtor. The choice between the routes is therefore a decision best taken with advice, on the facts of the file.
Refusal to grant the get and the personal undertakings
When the agreement includes an undertaking to arrange the get by a certain date and the other party avoids it, enforcement takes place in the rabbinical court. The Rabbinical Courts (Enforcement of Divorce Judgments) Law, 1995, empowers the court to impose graduated restrictions on a get refuser: a ban on leaving the country, revocation of the driving licence, restrictions on the bank account, disqualification from public office and, in serious cases, imprisonment.
In parallel, the family courts have recognised get refusal as a ground for a tort claim. A person who withholds a get contrary to an undertaking may be ordered to pay substantial compensation for the mental harm and the loss of liberty caused to the other party. Such a claim is heard in the family court, separately from the divorce proceeding itself.
Breach of other personal undertakings in the agreement, such as payment of the ketubah, an undertaking not to disparage or to refrain from contact, is enforced in the forum that approved the agreement. Breach of a court order allows an application under the Contempt of Court Ordinance, and where the breach caused damage a tort claim for compensation can be filed.
Can the agreement be cancelled or changed after a breach
The question arises in almost every case: if the other party breached the agreement, is the injured party released from it. The answer is not simple, because a divorce agreement is both a contract and a judgment.
From the contract law side, the Contracts (Remedies for Breach of Contract) Law, 1970, allows a contract to be rescinded for a fundamental breach. The law defines a fundamental breach as a breach that a reasonable person would not have entered into the contract had he foreseen it and its consequences, or a breach agreed in the contract to be fundamental. A sweeping clause that turns every breach into a fundamental one is invalid if it was unreasonable when the contract was made. A breach that is not fundamental permits rescission only after a reasonable extension was given to the breaching party and not used.
From the judicial side, an agreement that received the force of a judgment is not cancelled by a unilateral notice. Cancelling it requires a separate claim in which the claimant proves a contractual ground for rescission. And the courts tend to treat divorce agreements as a single whole in which the clauses are interwoven: a wife who gave up her share of the apartment in exchange for increased child support, for example, cannot cancel only the waiver. Only in rare cases, where the clauses can be separated without defeating the purpose of the agreement, will the court consider partial cancellation.
Change is a different matter. The clauses on child support, custody and parenting time are always open to change by the court when there is a material change of circumstances, because the child’s best interests stand above the parents’ agreement. The property clauses, by contrast, are almost always final. And in any event, whether the aim is cancellation or adjusting the agreement to a new reality, mediation or arbitration may be faster and cheaper than a full court proceeding, and preserve the parents’ ability to keep functioning together.
The financial and emotional consequences, and how to limit them
Beyond the legal aspect, a breach of a divorce agreement creates financial uncertainty for both sides. A delay in dividing the property prevents the other party from starting a new chapter: buying an apartment, investing, planning the children’s finances. Not receiving part of the property can lead to debt, and in a family with children the drop in the standard of living is felt at once. Alongside legal representation, it is worth building a financial plan for the interim period rather than waiting for the proceeding to end.
The emotional side is no lighter. Children exposed to a prolonged conflict between their parents experience insecurity, anxiety and sometimes guilt, and the effect on their emotional and social development can last for years. Even when the agreement is breached there is a way to conduct the dispute: not to involve the children, not to use them as messengers, to keep as normal a routine as possible, and to leave a businesslike and respectful channel of communication open with the other parent. Such communication is not only good for the children; it also shortens proceedings and improves the outcome in court, which gives weight to the parents’ conduct.
Some breaches can be prevented in advance. An agreement that includes performance mechanisms, such as a standing order for child support, transfer documents held in escrow, precise dates and an agreed sanction for delay, narrows the room for interpretation and delay. And since life changes, children grow up and financial situations turn around, it is wise to treat the agreement as a living document and to set out in advance a mechanism for updating it by consent, so that adjusting to a new reality is not counted as a breach.
In summary
A breach of a divorce agreement is a serious matter that harms the stability of the family and the rights of everyone involved. The breaching party is exposed to attachments and restrictions in execution, financial sanctions, changes to custody and child support, contempt of court proceedings and, in serious cases, imprisonment. The injured party, for its part, must choose the right route, because a wrong choice can prolong the proceeding and delay collection.
Choosing between execution, the National Insurance Institute, the family court and the rabbinical court, drafting the application, gathering the evidence and dealing with claims of changed circumstances require familiarity with family law and with the law of enforcement, and professional legal representation by an attorney who specialises in the field.
If your agreement has been breached, or if you are struggling to meet an obligation and want to settle it before it counts as a breach, contact us for a diagnostic conversation. Together we will examine the agreement, the type of breach and the options open to you.
What people ask most often about breach of a divorce agreement
Our divorce agreement was never approved by a court. Can it be enforced?
The other side stopped paying child support. What is the first step?
Can child support be collected from both the National Insurance Institute and execution?
The other parent does not come to collect the children. Is that a breach?
Do the police enforce parenting time?
What is contempt of court in the context of a divorce agreement?
The other side refuses to sign the transfer of the apartment. What can be done?
Can the agreement be cancelled because it was breached?
The other side says he cannot pay because he lost his job. Does that release him?
What happens if the other side refuses to grant the get despite the agreement?
How long does it take to enforce a divorce agreement?
Can breaches be prevented in the drafting of the agreement?
All pages in the Family and Inheritance department
The separation itself
The divorce processLeaving home before divorceReconciliation or divorceRequest for dispute resolutionDissolution of marriageEconomic abuseRestraining orderBreach of a divorce agreementThe children
Child supportChild support claimIncreasing or reducing supportSupport for a child born outside marriageCollecting support through National InsuranceSpreading a maintenance debtCustody and parenting timeShared parentingThe tender years presumptionChanging a custody arrangementRelocating abroad with the childrenParental alienationDealing with an alienating parentGuardian ad litemSurrogacyPaternity claimThe Youth (Care and Supervision) LawVisual parenting plan builderProperty and agreements
Prenuptial agreementSame sex prenuptial agreementSame-sex marriageNotarised prenuptial agreementDissolution of joint ownershipCareer assets and goodwillSelling the apartment on divorceCommon law partnersInheritance and estate planning
Wills and inheritanceInheritance between same-sex partnersEstate planningWills in estate planningIntergenerational transfer in estate planningTrustsDynasty trustSpecial needs trustInheritance orderProbate orderAgreements between heirsInheritance disputes between siblingsContesting a willNo-contest clause in a willA breach handled early is enforced faster
A short diagnostic conversation to check whether the agreement was approved, what kind of breach it is, and which enforcement route suits your file.