How to correctly manage a divorce case?
Managing a divorce case is a complex business, both from the legal aspect and of course form the personal-emotional aspects.
Unlike ordinary civil lawsuits, divorce claims cause the parties pain and difficulty, since a divorce case is about personal and emotional matters, which are not necessarily characteristic to “regular” civil cases. Therefore, due to these difficulties the question arises: how to correctly manage a divorce case? What should one do and what is better not done? Are there tips that can aid in managing an effective, correct and fast divorce process? All these in the following article.
How does a divorce procedure take place?
A divorce procedure is a broad term that includes many sub-processes that make up all together, one procedure – which is the divorce procedure. The common thought is that divorce only includes the ongoing divorce suit in the Rabbinic court.
However, this belief is fundamentally wrong, because during the process of divorce, the divorce itself is not enough, division of the joint property of the couple should be done too.
In addition, the custody of the couple’s children is a matter that needs to be organized, because parent responsibility does not end just because the coupe has decided to part. Moreover, while working out custody and divorce matters, the couple has to regulate alimony payments by the father for his children’s financial welfare. All these are separate procedures requiring, in some cases, different parallel lawsuits.
Moreover, each claim has its own different cost, including fees for the divorce lawyer who accompanies each of the parties. Each of these procedures is conducted according to different legal-procedures and each can be conducted in a different legal instance, as will be explained later in this article.
Hence, a divorce process is actually a process that includes a wide variety of legal procedures. But let us begin with an optimistic statement – any divorce procedure can be conducted in two ways: it can be handled in a tough way, i.e. by having expensive and complex legal procedures, but, on the other hand, one can handle the case efficiently, i.e. by having a comprehensive settlement and signing a divorce agreement. Certainly the latter is preferable, cheaper and certainly more convenient and recommended by most divorce attorney working in this field. Below I will elaborate regarding all divorce proceedings.
Divorce in the Rabbinic court
There is no doubt that the most recognizable part of the divorce, is the divorce itself in Rabbinic court. Typically, divorces take place in religious courts, not only Jews, but Christians, Muslims and Druze too. This is because in Israel there is no separation between religion and state when it comes to family law. The Rabbinic Courts Law (“Marriage and Divorce”) 5713- 1953, states that marriage and divorce between Jews in Israel will take place according to Torah law. As a consequence, there are Rabbinic courts in Israel, where judges with religious training sit in judgment. These courts judge in matters regarding divorce and marriage according to the person’s religious law, i.e. according to Jewish law (in our case). At the same time, when it comes to the other religions in Israel (i.e.: Muslims, Christians and Druze) the Personal-religious law applies, according to “the King’s Council”, from the year 1922. This is actually a British-mandate law that was set before the establishment of the state of Israel and is valid until today. This law determines that the religious courts will have the sole jurisdiction to hear matters of personal status, i.e., marriages and divorces.
“The king’s council’s” law also addressed the Jews but after the establishment of the state of Israel, in 1953, the Knesset regulated the subject in a specific ruling, i.e.: the above mentioned Rabbinic Courts Law. As for all the other religions, the “king’s council’s” law is still valid so there are Shari courts that rule in matters of marriage and divorce between Muslims and Christian and Druze courts too. The Rabbinic court has a supreme Rabbinic court in Jerusalem which serves as an appellate court above the regional Rabbinic courts.
Since there is no separation between religion and state in Israel, especially in personal matters, the situation today is that a couple from different religions cannot marry legally in Israel. They can, of course, live together as a couple but cannot be legally married. This is due to the fact that none of the religions recognize “mixed” marriages, for example: a male Christian and a female Jew or any other combination of religions. A couple such as the one in the example could marry abroad, I will explain regarding this matter in detail, later.
Causes for divorce
In Israel, as mentioned above, the marriage and divorce are regulated according to the personal-religious law, so according to the Jewish Halacha (law), you need a cause for divorce. A reminder, marriage and divorce are held according to the religious court, i.e. the Rabbinic court rules in these matters according to Jewish law, not the Knesset’s laws. According to the Halacha you need a reason to get a divorce. The legal term is grounds for divorce and here are a few examples for grounds for divorce as recognized by the Jewish law (this is a partial list):
Unfaithfulness – as is implies. A married woman having sexual relations with a man who is not her husband is considered unfaithful. According to Jewish Halacha she is not entitled to receive the amount of money stated in her Ketuba and children born from this encounter will be considered bastard who are not permitted within god’s flock. Hence, unfaithfulness is grounds for divorce according to the Rabbinic court. It should be noted that this ground refers to women only, not men.
Act of Ugliness – this act is in a lower grade than unfaithfulness, where the wife is behaving in an improper way: spending time with another man, kissing another man in public etc. this act is recognized as cause for divorce.
Defect – physical defect can be a cause for divorce, both for husband and wife. That being said, it has to be proved that this defect was hidden before the wedding and was revealed only after.
Violence – of course that violence directed by a husband to his wife is cause for divorce since the Jewish law forbids violence towards women.
Lack of sexual intercourse – failing to satisfy sexual needs is a causes for both man and woman. If any of them refused to have sex with each other, then this behavior creates grounds for divorce.
This list is, as mentioned above, a partial list and does not exhaust all the causes for divorce. It is always important to consult with a divorce lawyer and describe all the facts causing the person to seek a divorce. This is due to the fact that there are many different causes with different implication on the divorce procedure – but this is a topic for a different article.
According to the law, matters of marriage and divorce will be dealt solely by the Rabbinic court. The other instance dealing with family law is the family court, which was established by the force of the family court law 5756-1995.
This court has the authority to deal with any family matter, excluding marriage and divorce. There are some matters where both courts have parallel authority such as: claim for alimony, which are considered part of the divorce process but not explicitly so. For this reason, the family court can rule in this matter.
The judges residing in the family court are “regular” judges who are part of the civil justice system and they are appointed by the Judicial Selection Committee.
Most often, the judges are experienced in family law, who have served as family lawyers. It should be noted that, in many cases, there is what is known as the race of authorities between the family court and the Rabbinic court, which creates difficulties and complicates the divorce procedures.
Let us explain about the “race of authorities”:
Apparently, according to the law, the Rabbinic court has the authority to rule only in matters of marriage and divorce. However, the Rabbinic court can get authority in cases where the claims involve other matters such as: custody, property and alimony. If the claim is filed to the Rabbinic court and it has with it other matters then the Rabbinic court has the authority to rule the whole claim. A divorce claim is filled to the Rabbinic court but just as a request to divorce. At the same time, alimony and custody claims are filed to the family court, because there are cases where it is better to take this approach. In some cases it is preferable, whether for the husband or for the wife, to claim a bound (divorce and other matters) claim to the Rabbinic court. The question whether it is preferable to do this or the other is derived from the circumstances of the case. It is very important to consult with a divorce lawyer regarding these cases since only a divorce lawyer will know how to act and will advise correctly.
As mentioned above, there is the problem of the race of authorities between the Rabbinic and family courts, which sometimes causes duality in the legal procedures which in turn cause extra and higher expenses for the couple.
Thus, the remark of the Supreme Court on the subject:
“One of the characteristics that specialize the Israeli law, is the existence of a ruling system in religious matters regarding personal status. In some areas there is concurrent jurisdiction to the civil judiciary and the religious judicial system; the choice between them is subject to the party or parties. This choice – which is basically an expression of personal autonomy – often causes power disputes between the systems and tactical maneuvers by the parties”.
As mentioned, marriage and divorce can be held according to the personal-religious law that applies to the couple. But what happens with couples who are not of the same religion? Or if they are of the same religion but are unacceptable for marriage? In addition, what happens in a case of same-sex spouses who cannot marry by the religious law?
In these cases, one needs to marry out of the country. In Israel, civil marriage is not recognized and there is no legislation permitting it. However, the courts’ ruling over the years has permitted couples to marry in forging countries, come back to Israel after they have been married and be registered in the Ministry of Interior as a married couple.
The question arouses – how can a couple, who are married in a civil marriage, divorce in Israel? The answer is simple and is divided in to two parts: the first part is in a case where the couple can marry in Israel. They will have to divorce according to their personal-religious law, i.e. if the couple are both Jewish they will have to divorce in the Rabbinic court. The second part is in a case where the couple are unacceptable for marriage in Israel. They will have to apply to the family court and request for annulment of the marriage. The same goes for same-sex spouses, who, as mentioned, are acceptable for marriage in Israel, but can be registered as married if they had the civil ceremony in a forging country that recognizes the validity of the marriage.
Claim for “divorce in agreement”
Unlike a regular divorce, which is conducted as a legal procedure, it is possible to submit a “request for approval of a divorce agreement.” This is done by signing a divorce agreement and submitting it to the Rabbinic court or the family court to get its authorization. Unlike a regular divorce claim, when such an agreement is submitted, the court will not create difficulties if not needed. There is no need to prove grounds for the divorce since it is done willingly and with the consent of the parties. In cases such as these, one needs to sign the divorce agreement, file it as a claim to the Rabbinic court, add references such as copies of the I.D.s of the couple, marriage certificate, details of the children and pay a court fee of 250 NIS (at the time of writing).
When submitting the request, the couple will receive a summon to the court hearing. During the hearing they will be asked a few questions, they might be questioned regarding the honesty of their agreement to divorce and the judges might try and convince the couple to rehabilitate their relationship and avoid divorce. With that, the attempt to convince will end and after that, the couple will get a ruling for divorce.
There is no doubt that divorce in agreement is much faster, convenient and efficient in comparison to a divorce after a court case. Divorce in agreement is also much cheaper.
The obligation to pay alimony is derived from the power of the personal-religious law. This obligation is set in all the recognized religions in Israel, especially the Jewish religion. Alimony is meant to aid the father’s children financially. That is why this obligation is absolute, i.e. one cannot get an exempt from paying alimony (except for one case, which will be explained below).
In order to get alimony the wife has to claim for temporary and then permanent alimony. This claim can be submitted to the Rabbinic court of the family court. Usually, the minimal sum of alimony is 1,400 NIS, where, the higher the husband’s income, the higher the sum paid for alimony.
To clarify, payment of alimony does not deduct form the father’s obligation to pay for the children’s housing, medical expenses and schooling. In most cases, the alimony is paid until the child has finished his/her army or national service.
There is one case where a father might be exempt for the obligation of alimony, this case being a “rebellious child”, when a father proves that his child is not willing to be in contact with him. Let me clarify that these cases are very rare because the courts do not easily exempt fathers for the obligation to pay alimony.
One other procedure which is part of the whole divorce procedure is the matter of custody. When parents get a divorce they need to work out the custody over the children. Who will be the custodial parent who will take care of the children for most of the time and who will be the parent who gets visitation rights? The couple can alternatively decide that both of them will be custodial parents.
In order to work out matters of custody there are a few options – file a claim for custody to the court or have an agreement aided by a divorce attorney who is also a mediator, or a direct agreement between the parents. Please note that a custody agreement needs to get authorized by a court (Rabbinic or family court).
Balancing of resources
Any family attorney would agree that one of the most het subjects in the divorce procedure is the regulation of the division of the common property between the partners. There will always be disputes in this matter because there is always one partner who claims that he/she contributed more money to the partnership. The legal situation is “balancing of resources” i.e. equal division of the property, according to the property relations law 5733-1973.
On the other hand, the equal division of property can be stipulated, if the couple so chooses, by a financial agreement, or, of course, a divorce agreement. If the couple do not agree they can file a claim for balancing of resources or liquidation of common assets (when there is an apartment that needs to be sold).
Tips for a successful divorce
Up to now, I have explained how the divorce process works. One can sum and say that this process is quite complex, mentally exhausting and requires many funds and much patience. That being said, one should know how to manage the process, who to conduct one’s selves, what is preferable and right to do and what is not. As a family law attorney, I’d like to share some of my professional knowledge by presenting 5 tips that could assist in having a successful divorce process, as follows:
- Be fair: don’t ever forget – you are divorcing the person you once married, had children with and built a home with. Be respectful of your partner in the process of the divorce, understand the problems he/she is dealing with, don’t be quarrelsome, rather be dignified. If you behave in this way the other party might choose to behave in the same way, which will ease the process of the divorce, both for you and, more important, your children.
- Get advice from a divorce lawyer: complex procedures need experience. Trying to carry out these procedures without having the expertise is very risky, at best. Divorce is a complex, expensive process, needing legal knowledge. Getting expert advice form a family attorney will bring to the best results and minimize damages.
- Conduct an effective legal process: One way to quickly and efficiently divorce, is not to have idle processes. If you’ve reached a point where you need to start legal proceedings regarding divorce, it is very important to manage the process wisely, choose the right strategy, match expectations with a family law attorney who represents you and always focus on the main issue. If the other party submits false requests, it does not mean that you should do so. Always chose to conduct efficiently and quickly.
- Work towards divorce: the most effective way to divorce is by agreement. This is the best way to save financial costs, especially fees for a family lawyer which can reach tens if not hundreds of thousands of shekels. Also, this is the way to maintain good relations that are needed by the couple, in order to bring up their joint children. Therefore, it is important to always try to strive for a divorce agreement rather than legal proceedings.
- Why did we ever decide to get a divorce? In many cases, in the tangle of the divorce procedure – the difficulties, financial costs and mental stress, the couple forget their real cause. So, the most important tip, combined with the above mentioned, is not to forget what your real cause is, which is to get a divorce so as to create for yourselves a better situation. Do not forget this.
I sincerely hope that this article will help people getting a divorce, now or in the future, to plan their steps in a wiser way and have the divorce handled in an efficient, respectful and fast way.
Finally, everyone would like to end the divorce procedure and get on with his/her new life. In order to do so, in a quick and proper way, it is best to first get legal advice for a family lawyer, remembering, at the same time, that this procedure will eventually end, and do not forget the real cause you have decided to divorce.