Choosing a Lawyer | Tips in Choosing a Legal Advisor | Choosing a Court System | Understanding Your Choice | Rabbinical Court Judical Tendency | Demonstrating Cause for Divorce | Registering for Divorce | Drafting the Divorce Agreement | Preliminary Process |
Choosing a Lawyer
Personal legal counseling is critical in order to correctly assess your legal situation, select an appropriate court system, set realistic goals with regard to property division and child custody, and work out reasonable settlement agreements with your spouse. Even if you have read books and pamphlets about divorce, there may still be issues that you haven't considered, either from lack of knowledge or as a result of your deep emotional involvement. Having a legal professional listen to you, objectively analyze your situation, and outline your different options, generally proves exceedingly valuable and well worth the cost.
If you submit a joint petition for divorce, you will probably no longer require legal counseling once the divorce agreement has been drafted. In other cases, you will need a legal expert to accompany you throughout the legal proceedings in a rabbinical court or family court. You will need to provide your legal counselor with all pertinent truthful information regarding your relationship with your spouse and children, your property, your employment and expenses, and prior legal decisions or professional opinions, if any. To this end, you will need to grant access to many documents and be prepared to tell the whole truth, no matter how difficult (your legal counselor is legally bound to confidentiality and is forbidden to disclose anything you tell him). Legal counseling can be provided by a lawyer or rabbinical advocate (to'en rabbani).
Tips in choosing a legal advisor
* Before choosing a legal advisor, it is wise to set up some introductory meetings and preliminary counseling sessions (which are sometimes free of charge) with several different experts. This way, you can compare their methods, tactics, fees, and payments plans, and choose the one who overall best suits you. Different lawyers and rabbinical advocates may employ vastly different approaches, which impact the tone and atmosphere of your meetings with them, your connection with your spouse, and legal proceedings in court or bet din. Thus, for example, the question of whether the dissolution of your marriage will take place in an amicable, cooperative manner or in a combative one depends not only on your own inclination and circumstances, but also on your legal advisor's approach and nature.
* If a different lawyer, from the one you met at your preliminary meeting, will be representing you in court or in bet din (as is sometimes the case), it is a good idea to also meet him.
* If you are opting for a lawyer, you must verify that he is an expert in family law, and that he is proficient in the area in which you need legal advice. Moreover, not every lawyer, accustomed to working with family courts, is also knowledgeable and competent at working with a rabbinical court. It is important that you ascertain whether the lawyer you chose can effectively represent you in both courts.
* If, alternatively, you are opting for a rabbinical advocate, you must keep in mind that his/her specialty is in Jewish law, and that he/she is only qualified, therefore, to represent you in bet din. If certain divorce proceedings do take place in family court, you will also need to hire a lawyer since your rabbinical advocate will not be able to represent you there.
* The government provides free legal assistance, including representation in family court and in bet din in all divorce related matters, for anyone who is financially eligible (and whose claims are reasonable). Eligibility for this aid depends on one's income in relation one's number of children.
* Various organizations also provide assistance in divorce related legal services and representation. Particularly prevalent are non-profit organizations, which offer free or low cost legal assistance to women in the process of divorce and to aggunot and mesoravot get.
Choosing a Court System
In Israel, there are, in effect, two systems that deal with divorce related matters, either of which you may choose. The rabbinical court system maintains exclusive authority with regard to the divorce itself. Thus, all deliberations regarding consent to the divorce, as well as the process of drafting a get, can only take place in a rabbinical court. All divorce-related issues, however, such as property division, child custody, and visitation rights, can be decided in either the rabbinical court system or in the family court system. Child support payments will be adjudicated in family court unless both sides agree to have them decided in rabbinical court.
Understanding Your Choice
On the face of it, this seems like a positive legal reality, as it offers you the freedom to make choices according to your personal preference, but it is in fact a rather mixed blessing; since submission of a divorce petition or claim in one of the systems confers jurisdiction upon that system and precludes parallel proceedings in the alternative system, Israeli law, in effect, creates a 'court system contest' between the involved parties. The absurdity is that instead of allowing the divorcing couple to resolve their issues amicably, through compromise, this legal reality encourages each of them to rush to file a claim in the system he/she prefers, before their spouse manages to file in the other system. By creating a situation in which each side fears that in waiting for a compromise, he may allow possibilities to pass him by that he otherwise would have had, the law encourages people to opt for the path of litigation, to sharpen their swords, and adopt more extreme positions. All this is in addition to the time, money, and energy wasted on court battles regarding the question of jurisdiction. If you find yourself in this situation, you will need to steer a course and find a balance between legal considerations urging you on and other considerations that predispose you towards mediation and compromise.
If you file a joint divorce petition after drafting an agreement (with legal assistance) that expresses your wishes, you will need to go either to a family court or to a rabbinical court for an official ruling, and then to the rabbinical court for the drafting of the get and get ceremony. The court system you now choose will receive continuing jurisdiction, and will serve as the address for any future legal controversies between the two of you regarding interpretation of the agreement or changes that you wish to implement.
It is important to realize that if you appear at a hearing in bet din or family court, and cooperate without raising, at the first possible opportunity, the issue of jurisdiction, this will be interpreted as tacit agreement to that court's jurisdiction, even if you had already opened a file in the other court. If you changed your mind, you can ask that your earlier claim be expunged, but the ultimate decision will be a matter of judicial discretion, and you may not receive your preference.
The bet din adjudicates according to its interpretation of Jewish law (though it is partially bound by civil law in certain matters), while the family court bases its decisions on general civil law (though it is also bound by Jewish law in matters of divorce). This distinction has caused differences between the two legal systems that affect the final results in matters of property division, welfare, and child support. The following are some common differences between the two court systems:
The rabbinical courts have a judicial tendency to divide property according to:
* How it is registered in the land or vehicle registry. Family courts, in contrast, are inclined to divide the divorcing couple's property into two equal parts (based on 'a presumption of joint ownership' or on 'a balance of resources' that is established by law), even if property is registered differently and regardless of how much each partner contributed to the family income.
* Future Earnings such as pensions, retirement funds, continuing educations funds are generally included in the property division by the family court but not necessarily in that of the rabbinical courts'.
* The family court respects 'no fault divorce' as is common practice in Western courts. Neither the moral conduct of each of the sides, nor the question of 'who began' the conflict have any bearing on property division or on child custody. In rabbinical courts, which are bound by Jewish law, however, the couple's moral conduct is taken into account, and can incur the loss of economic privileges (such as ketubah and 'mezonot' - sustenance payments).
* Some lawyers maintain that women are better off in family court while men are better off in rabbinical court. This claim is based on the fundamental distinction that Jewish law draws between men and women in matters of property, as well as on the atmosphere that prevails in a rabbinical court, all of whose judges are male, and the majority of whose advocates are male. Family courts, in contrast, are bound by principles of gender equality. Though, this distinction holds true in many cases, it is not necessarily the case in every situation, so be advised regarding your specific case.
* Another common contention is that family courts award higher child support payments than do rabbinical courts. Though this may be statistically correct, it does not necessarily hold true in every case.
* Rabbinical courts and family courts do not see eye to eye with regard to the 'best interests of the child', a determination, which clearly factors strongly in decisions of child custody. The bet din will sometimes give weight to the halachic observance of one parent and it at times prefers to give fathers custody of boys, and mothers, custody of girls.
* A woman who wins her claim of 'housing rights', may receive general 'housing' rights, namely, a reasonable residence in her previous neighborhood, or 'specific housing' rights, meaning continued use of the residence in which she and her husband lived before their separation. In rabbinical court, as opposed to family court, specific housing is routinely awarded, along with an impound order on the jointly owned home. This action effectively prevents the husband from selling their joint residence, or his share of it ('partnership dissolution') until the impound order is removed or the decision reversed.
* By law, there are support units that operate alongside the family courts, which offer counseling and mediation services. While the rabbinical courts also employ social workers and sometimes mediators, these services are not integrally linked to the courts services or operating by force of law.
Demonstrating Cause for Divorce
The 'cause for divorce' is the reason, which justifies, according to Jewish law, the dissolution of the marriage, and which leads to the bet din?s intervention in moving forward with the divorce. If you and your spouse have reached an agreement regarding the actual decision to get divorced, and you are confident in your decision, the bet din will, generally, accept your request for divorce, at face value, and sanction it, without requiring reasons, causes, and justifications for your decision.
On the other hand, when one side wants a divorce, and the other side refuses, the bet din will proceed with the divorce only if the divorce is 'justified'. In other words, only if the reason for divorce in this particular case is included in the 'causes for divorce' that are deemed valid by Jewish law, a limitation intended primarily to prevent rash divorces and protect the woman whose livelihood was entirely dependent on her husband. This stands in marked contrast to the 'no-fault divorces', which are common in the Western world. Thus, if you have not both agreed to a divorce, the side applying for a divorce will be asked to present before bet din a cause for divorce which justifies his application. If he is unable to offer a valid cause, he will not be able to proceed with the get process, until he obtains the consent of his spouse.
Jewish sources enumerate physical causes for divorce such as impotence or physical defects, as well as behavioral causes such as a man refusing to support his wife (despite his ability to do so), ongoing physical and verbal abuse, adultery (and with regard to the woman, also 'repugnant actions' that lead to suspicions of adultery), intentionally causing one's religiously observant spouse to transgress certain mitzvot, and refusal to have marital relations. Emotional causes for divorce such as prolonged separation, improbability of restoration of domestic harmony, or one side's aversion to marital life have been debated in halachic literature throughout the generations, but rabbinical courts generally do not take them into account or impose a get because of them.
Registering for Divorce
In the event that you decide to turn to a rabbinical court, in order to file a petition for divorce against your spouse, in order to file a joint undisputed petition for divorce, or in order to have the divorce agreement that was drawn up in family court approved, your next step will be registering for divorce in the rabbinical court registrar.
Drafting the Divorce Agreement
When a consensual divorce file is opened in bet din, the couple is required to attach to the request the divorce agreement that they have signed. In the framework of the divorce agreement, the two of you will reach consensus with regard to matters that are likely to be points of controversy during the divorce process. In general, the agreement includes decisions with regard to division of property (house, businesses, vehicles, home contents, savings, government benefits, debts, bank accounts, etc.), custody, visitation rights, and education of children, ketubah rights (the waiving or claiming of them), child support (including the date of payment, and linkage and itemization of the needs that are included in mezonot). A divorce agreement may deal with relations between the sides after the divorce, and can even accompany a domestic harmony agreement, with the goal of working out the issues mentioned above in the event that efforts at restoring domestic harmony fail. As long as both sides concur, the divorce agreement can establish different and varied arrangements for almost all the issues involved, with the exception of directives obligating one of the sides to grant or accept a get - these may not, under any circumstance, be included in the agreement; if they are, they are liable to affect the legal validity of the get.
The divorce agreement may assume varied measures of formality and style. It could be an agreement that the two of you drafted on your own on the steps of the bet din (though it is unadvisable to do so), it could be an agreement that you worked out with the help of lawyers or arbitrators, and it could be the product of extended negotiations in court or bet din. Whatever the case may be, every agreement requires the certification of the relevant legal system (rabbinical court or family court) in order to be binding. Without such certification, it is non-binding, and unenforceable. From the moment the agreement is certified by a legal body, it acquires the force of a judicial ruling and is enforceable both by the Repossession Bureau and by National Insurance Institute (with regard to sustenance payments). Most of the provisions in the agreement cannot be altered after the agreement has been legally certified, unless some error was found in the document, rendering it partly or entirely invalid. The specifications with regard to child support, custody, and visitation rights, however can be changed, by bringing the matter before bet din or family court, pursuant to a fundamental change in circumstances, such as a change in place of residence, level of income, state of health, parental conduct, or the child's needs.
Verification of Personal Status
When you come to register for divorce if you were not married by the Israeli rabbinate, the bet din will probably initiate a preliminary process to your registration:
1. Verification of Jewish status: If there is any doubt as to either of your Jewish status, and particularly if you or your parents immigrated to Israel from a different country, a process of verification will probably be necessary. You will need to go to the bet din registrar with your identity card, a 217 NIS fee, as well as documents and photos that attest to your being Jewish. Immigrants from the US and Western Europe generally prove they are Jewish with a letter from a rabbi of an Orthodox community in their native country who knows their family, or with the ketubah from their parents' wedding. Immigrants from the Former Soviet Union and from Eastern Europe generally can prove their Jewish lineage with their own original birth certificates or those of their mothers, or maternal grandmothers (whichever ones are in their possession), in which Jewish nationality is recorded, and through photos of Jewish ceremonies or family graves that have Jewish symbols. If one of their relatives on their mother's side already proved he was Jewish before bet din, that may suffice. The verification process takes place in your presence, and whenever possible, in the presence of your mother and grandmother, in the rabbinical court.
2. Establishing Marital Status: If you were married in a private non-Orthodox service (or you were converted in a conversion that is not recognized in Israel), the bet din may want to conduct a separate verification with regard to your marital status. If this is the case, you will need to go to the bet din registrar, with the relevant identity cards and documents, photos from the wedding service, and a fee of 217 NIS. The bet din will schedule a hearing in which it will ask you questions about your marriage and decide what is required - a regular get, a 'get l'chumra (a get that is required as a stringency, when the necessity of a get is in question), or no get at all. In the event that you are not registered as married in the population registry, you will be sent with the bet din's decision to the Interior Ministry to register as married, before it will be possible to begin with the divorce process.
Choosing a Lawyer | Tip in Choosing a Legal Advisor | Choosing a Court System | Understanding Your Choice | Rabbinical Court Judical Tendency | Demonstrating Cause for Divorce | Registering for Divorce | Drafting the Divorce Agreement | Preliminary Process |
Step by Step
› A Moment Before
› Where and When
› Who Needs a Get and What For?
› Reaching an Agreement With Your Spouse
› The Legal Proceedings
› Registering for Divorce
› The Rabbinical Court
› Certification of Your Divorce Agreement
› The Get Ceremony
› After the Divorce