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If You Want to Collect Money From Your Ex, Don’t Try to Murder Them

By Steven Ellison, Esq. | Last updated on

If you want to collect money from your ex, don't try to murder them.

You'd think this would go without saying, but apparently it doesn't.

At least this life lesson wasn't obvious to one Julie Rabinowitz, who recently received the benefit of instruction from the Massachusetts Appeals Court. For those of you who may have wished ill on an ex, Ms. Rabinowitz's case will give you just another reason — if you needed one — why you should think twice before trying to hurry along your ex's demise.

Until Death Do Us Part?

The facts of the case are pretty straightforward. We will refer to the parties here, as the court does, as “husband" and “wife."

Husband, a dentist, and Wife divorced after a 15-year marriage. By agreement, Husband was given sole custody of their four minor children. Again by agreement, Husband was to buy out her share of his dental practice in monthly installments. He made all required payments.

Until, that is, Wife tried to kill him. She attacked him and their nine-year-old son with a hatchet outside of Husband's dental practice. Her rationale, voiced amid the chaos, was that he had interfered with her reunification plans that were in the works. In any case, Husband stopped making the installment payments.

Meanwhile, Wife pleaded guilty to a bunch of charges, including armed assault with intent to murder. She was sentenced to two and a half years, one year to serve, and the balance suspended for 10 years of probation. Not a bad plea deal.

Rabinowitz v. Schenkman

A few years later, Wife had the audacity to sue Husband. She alleged that he was in breach of their separation agreement because he failed to make the installment payments.

Following a trial without a jury, the judge found that Wife's attempt to kill Husband was part of a “woefully misguided" plan to get custody of the kids and that it interfered with his buyout of her share of the dental practice. The judge concluded that he did not have to pay her anymore because she had violated “the covenant of good faith and fair dealing" implicit in the separation agreement.

What Is the Implied Covenant of Good Faith and Fair Dealing?

What does that mean? In contract law, the implied covenant of good faith and fair dealing is based on the notion that the parties to a contract will deal with each other honestly and fairly. Even if it's not written in, courts generally read this covenant into most contracts. If you do something dishonest or unfair that interferes with the ability of the other party to enjoy the benefits of the contract, then a judge will find that you violated the implied covenant of good faith and fair dealing.

There are a number of possible remedies for breaching this implied covenant, but the one the trial judge focused on was excuse of performance. This refers to a situation in which one party to a contract is no longer bound to fulfill their obligations under the contract. Wife's breach of the implied covenant of good faith and fair dealing “excused" Husband's performance of making future installment payments. The trial court so ruled and entered judgment on behalf of Husband.

You Actually Appealed? Seriously?

Probably the best part of this case is that Wife had the moxie to appeal the decision. She tried to persuade the Massachusetts Appellate Court that the trial judge made a mistake and that Husband still had to pay her.

At the risk of oversimplifying, she had two main arguments. Her first was that the implied covenant of good faith did not apply in a marital separation agreement. The court gave this short shrift. It ruled that, in fact, parties to a marital separation agreement stand as “fiduciaries" to each other, which means they are actually held to a higher standard of conduct than parties to many other contracts.

No Harm, No Foul?

The second argument may make you shake your head. Wife said that because she didn't actually kill Husband, nothing prevented him from paying her under the contract.

In not so many words, the appellate court found that this was off-point. There is a doctrine in contract law called impossibility of performance. Under that doctrine, you don't have to perform a contract if something unforeseen and outside of your control makes it objectively impossible for you to perform your obligations. In fairness to Wife, nothing objectively prevented Husband, who was still alive, from actually paying her.

But the appellate court didn't base its ruling on this doctrine. Instead, it rested its decision on the implied covenant of good faith and fair dealing. And trying to murder your ex isn't, in the court's view, dealing with them with the degree of honesty, fairness, and integrity that the covenant requires. This excused Husband's performance. No more installment payments for Wife.

Killing Your Ex Is Bad

You may not be a lawyer, but the result in this case probably feels right. You shouldn't have to pay your ex if they try to kill you. This just happens to be one of those situations in which the law and common sense produce the same result.

So, if you want your ex to pay what they owe you, don't try to murder them. Deal?

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