DIVORCE IS NOT ONE SIZE FITS ALL

                  A divorce can be both scary and a relief from marital problems which cannot be otherwise corrected.  The divorce means a loss of a relationship, a loss of time with children, and possibly a loss of money or property.  It can also be a step towards independence and self-preservation if one is getting away from abuse or harm and looking to a new life of peace and happiness.

 

            There are many similarities in the Jewish law and the secular law regarding divorce.  The Jewish opinion about divorce is that it is the right thing to do when continuing the marriage will cause more pain and suffering to the married partners and the children.  The married couple should always first consider counseling and make efforts to change the unhealthy conditions.  If it is still not possible, then a divorce is needed to prevent further harm.  Interestingly, the Ketubah, the marriage contract, in fact is a form of prenuptial agreement guaranteeing a certain payment or action in the event of a divorce.  The Ketubah however does not sufficiently address all support issues.  The “Get” actualizes the divorce.  It must be done by experts with sufficient standing to provide an acceptable Get, similar to a judge granting a divorce.

 

            The divorce is a crossroads in life.  It should not result in a dead end for anyone.  Divorcing parties typically must address various issues relating to children and/or money to determine their future.  Other issues such as safety and religious matters (for example obtaining the Get) also play an important part in some of the cases.

 

            Although I am a divorce lawyer and have been practicing for 19 years, I genuinely believe in marriage and I believe one should make all efforts to keep a marriage together, if it can be kept together.  I also have been divorced and know firsthand how the process of terminating a marriage can be upsetting, frustrating, costly and difficult.  I also know that the Property Settlement Agreement must be fair and allow the spouses to go on living reasonably.  Finally I can also state from personal and business experience that settlement through negotiation or mediation is highly desirable but not always possible.

 

            There are many options to the divorcing parties without Court intervention:  Mediation with or without attorneys, negotiation with attorneys (4-way conference), or collaborative divorce.  Each of these methods of resolution work when the parties have reasonable expectations, are on equal footing, and are willing to cooperate and concede certain things because the process is negotiation and the goal is resolution.

 

            Negotiation and Mediation are wonderful, but unfortunately are not appropriate or effective in every case.  For example, how does a father negotiate when he is an active participant in his children’s lives, he provides support and is a very caring individual, but his soon-to-be ex-wife is insisting that she be permitted to move toSeattle,Washingtonbecause her parents live there?  She has no job or prospective husband there.  She simply wants to take the kids away from their Dad so she can be with her parents?

 

            How does a wife negotiate or mediate with a man that absolutely refuses to give her a Get? 

 

            How do you negotiate if one party is in business and the other party relentlessly insists that money is being hidden or is trying to get more alimony?

 

            How do you negotiate with your spouse who is an alcoholic and refuses to refrain from alcohol use in front of the children?

            And obviously, one can’t negotiate domestic violence.

 

The above issues are extremely common and real.  They usually cannot be handled within a negotiating situation only, at least not until some litigation has occurred.  There must be intervention by the Court requiring the party with the unreasonable position or unsafe actions to comply with a Court Order.  The lawyer must be highly skilled and experienced to use the facts and implement the law to bring about a divorce in which no one is the winner but all parties can go on living in financially and socially reasonable conditions.

 

            In Jewish ethical tradition a wife has a right to demand a divorce in a number of circumstances.  The wife has grounds for divorce when the husband deprives her of support or conjugal relations, when infidelity occurs, when the husband repeatedly insults the wife in the presence of her parents, when the husband communicates with her with temperamental outbursts, and when the husband in general does not give her the respect and freedom she deserves.

 

            Similarly, in Jewish law the husband may demand a divorce if the wife denies him conjugal visitation, if the wife commits adultery or abandonment, if the wife is guilty of immodest conduct, if the wife insults her husband or children, or if the wife deliberately serves non-Kosher or spoiled food.  These are just a few of the issues that may arise that are grounds for divorce.  InNew Jerseyin the Superior Court one can also file based on causes of action such as adultery, constructive abandonment (no conjugal relations) or extreme cruelty, but we also can simply file because of irreconcilable differences or 18 months of separation. 

 

            The divorce process has some similarity in the civil court as well as Rabbinical court.    InIsrael, for example, if the parties have a settlement on their own for the divorce, their property, and the children, aRabbinical Courtis likely to accept the agreement.  Here, if the parties reach an agreement by consent a civil court is likely to do the same. 

 

            There are financial obligations related to finalizing the divorce, both in Jewish law and in civil law.  InIsrael, in the absence of abuse by the wife such as adultery, the wife would receive the Ketubah payment.  However this is not enough to ordinarily support the wife, who often ends up in poverty.  TheRabbinical Courtmay order some form of continuing support.  InNew Jersey, even adultery will not ordinarily result in the wife’s denial of support.  It is a “no fault” state.  Only if she is benefitting financially from her paramour will there be an economic impact.  The issues of being able to support oneself and to avoid becoming a public charge have high priority in New Jersey, and although there may be a great deal of fault on one side it usually will not translate into financial penalties.

 

            Is the Court system perfect?  Absolutely not.  I believe judges are frequently overwhelmed with hundreds of cases on their dockets.  Judges really try to make sound and equitable decisions; however, they do have what is called judicial discretion, which gives the Judge a great deal of latitude in making a decision before it is found to be unfair.  One should understand the parameters and possible outcomes before litigating. 

 

            Is litigation in Court expensive?  Yes.  Family lawyers work by the hour, as do mediators and collaborative professionals.  If a person has a very serious issue, like the custody or Get issues I mentioned above, and resolution is impossible through negotiation, one must decide if the issue is worth the money to bring the matter to Court.  Experts may have to be hired and their fees are high as well.  Their work is very specialized, time consuming and difficult, especially if the parties do not cooperate in providing information.

 

            A good, honest lawyer will be truthful with the client regarding possible outcomes in the case – some good, some bad – while considering all of the facts, the law, the circumstances in the case, and the time it can take.  The Court has case management requirements which must be met if the Complaint for Divorce has been filed.

 

            I personally believe that a lawyer should always reach out to the other side to try and negotiate resolution of the issues in the divorce (except in the case of an extreme emergency) either with or without mediators or the collaborative system.  If, however, there are really significant problems that cannot be resolved by consent, and it is logical to go to Court, then do so.  If it is a financial issue, the lawyer should be able to analyze the possible outcomes versus the cost to bring an application so the client does not waste counsel fees.

 

            For example, a client comes in with a reduction in income from $100,000 to $75,000 and asks for a reduction in child support.  Before taking the client’s money, I would re-run the child support guidelines to see the difference in the obligation.  It might turn out to be only a $20 per week difference and the cost in counsel fees to prepare a Motion, Case Information Statement, address a Reply, and appear in Court may cost the client a few thousand dollars up front, which would take years to recoup in the lowered support.  I would advise my client of this financial reality and probably advise the client to pay the extra $20.00 in support because unless there was some other issue, application to the Court really does not make financial sense.

 

            A good lawyer should regularly analyze the benefits and detriments throughout a case to inform the client of the expected cost of litigation versus the possible outcomes so the client can help to assess and make decisions and negotiate settlements when it makes sense to do so.

 

            Just like all individuals are different, spouses in a divorce have different problems to address and different options to consider in resolving these problems.  Competent counsel should guide a party clearly explaining all the options of resolution, benefits and detriments, and possible costs at each stage of the process.  There is no “right” way to resolve problems in a divorce.  Sometimes, it is best to negotiate and settle and sometimes one simply has to bring the matter to Court to a reasonable resolution or in most cases it is a combination of methods.

 

            Remember the lawyer/mediator works for you.  You should ask questions and feel comfortable during this difficult process.

 

            Finally, what your friend did may or may not work for you.  Please rely on competent professional information versus what happened to the ladies at the beauty salon or the guys at your tennis club.

 

            Marriage is obviously highly desirable – people working as a team obviously are more effective and happy then when they are adversarial.  The values and process for finding a prospective spouse are different under Jewish tradition than the typical process followed by theU.S.couple.  In Jewish law, first one should get to know the individual, learn about his/her temperament and compatibility, and determine if his/her values are similar to yours.  A commitment is then made – love is to develop later.  The commitment, not love, is the foundation of the marriage.  In theU.S.couples typically look for love first, then learn about the other person, then if love still exists they marry.  Personality clashes, financial irresponsibility and infidelity occur because there was no commitment to shared values.  Love will always ebb and flow, even in the best marriages.  When a divorce must occur, again the most effective divorce occurs when the parties values and goals are similar.

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