QA
Have a paternity and a child support claims been filed against you?
Below are a number of general action guidelines in the event that a paternity claim and a child support claim are filed against you:
* First, contact an attorney specializing in family law for a consultation and for extensive and thorough advice regarding your case, as this is no simple matter, and may have life altering results.
* You should be aware of the fact that a tissue analysis can only be performed in accordance with a court order.Being an invasive procedure it cannot be coerced.
* Although you cannot be forced to perform a tissue analysis, a refusal to do so can have an adverse effect. Should it be proven that there was a romantic relationship between you and the mother and if the aggregate circumstances indicate that you may be the minor’s father, your refusal may work against you and the court will not hesitate to declare your paternity even without a tissue analysis. (In the opposite event, where a man claims paternity and the woman objects to the performance of a tissue analysis without reasonable grounds, the court can declare the man so claiming, to be the minor’s father).
* The court will always treat the minor’s best interests as a supreme consideration. In most cases, the minor’s best interests is to know his father and for his father to acknowledge him and support him.
* A decision acknowledging your paternity in respect of the minor would also result in your being compelled to pay child support. It should be emphasized that a father’s duty to provide for his minor children is absolute, the dispute being not in respect of the very duty to pay but as to the amount thereof. (See also the section dealing with child support).
Your wife is not ready for a divorce and is not prepared for matrimonial reconciliation – Is she entitled to alimony?
In such a case it has been held that a demand for the payment of alimony and a refusal to live together are not compatible.
Your wife’s position shows that she wants to receive the rights arising from the matrimonial bond (alimony), but is not prepared to comply with the basic duty of the matrimonial bond, namely, cohabitation. It has been held that such a position lacks good faith and amounts to unjust enrichment.
Has your wife been unfaithful to you with another man?
It is recommended that you act in accordance with the following instructions:
- Consult with an attorney specializing in family law in order to plan your moves wisely. This consultation is very important and is also crucial to the entire management of the file and the setting up of the most appropriate legal strategy with a view to attaining the desired results.
- A skilled professional attorney will know to refer you to a private investigator who will follow the wife and present you with reliable data.
- Be alert to telephone calls at unusual hours, emails and SMSs.
- If you do not see any chance of matrimonial reconciliation, if, as far as you are concerned, it is a “done deal” and you have made up your mind that you wish to terminate the marriage, act urgently to file claims in the court which is most convenient to you under the specific circumstances of your case and in accordance with the strategy you have formulated with your lawyer, on the basis of the broad overall picture of all matters linked to the divorce, including matters of property, alimony, custody of minors, etc.
- In view of the “jurisdiction race” (see the section dealing with “jurisdiction race”), immediate action is of crucial importance !
You were married in Cyprus – Will you have to get a divorce in the Rabbincal court?
In most cases, before a Jewish woman married in a civil marriage can re-marry, the Rabbinical Court demands compliance with the strict requirements of Jewish Law in respect of divorce (“get lechumra”). That is since, although under Jewish Law, marriage between Jews who are Israeli residents and citizens should be carried out under Jewish Law, there is a chance that the marriage might qualify as a Jewish marriage and in order to avoid difficult consequences such as bigamy and bastardy, stringent requirements in respect of divorce (“get lechumra”) are applied.
It should also be noted, that even if the second marriage is of a civil (rather than religious) character, in most cases you may still be required to go through a procedure of “get lechumra” at the Rabbinical Court in order to dissolve the first civil marriage and aquire the necessary documentation for the second marriage.
Are there downsides to mediation?
* Active participation in a mediation process brings to light facts and data pertinent to you and further reveals your positions and willingness to such and other compromises proposed in the mediation.
* Sometimes the counter party has initiated the mediation or has agreed to the process with a view to dragging out the process or with a view to extracting information from the meetings and the conversations.
* Sometimes there is an imbalance between the participants in the mediation process – either in terms of information or capabilities. A significant lack of balance is liable to adversely affect the “weak” party (which situation the mediator has to identify and respond to within the framework of the tools available to him as a mediator, or discontinue the mediation).
* Some believe that your very willingness to turn to mediation (voluntarily) is likely to be interpreted by the counter party as a willingness to compromise or even as a weakness, as compared with a firm message aimed at a legal proceeding only.
* Mediation requires cooperation and a certain level of communication, in the absence of which mediation cannot take place.
* Mediation is not suitable for each and every case.
When do I contact a lawyer?
This is a legitimate question. It is easy to understand the fear of making such a move, turning the thoughts, conflicts and difficulties, into a concrete action. This question has probably occurred to you more than once when you were thinking about the issue. Therefore, in order to focus on your unique situation, you should promptly turn to an attorney specializing in the field of family law. Because of the special legal situation in Israel (see the “jurisdiction race” section) it is important that you hold a consultative meeting in which the legal situation in your case will be analyzed, with a view to assessing the prospects / risks in the context of a legal proceeding being instituted by the other party, and what can be done to mitigate the effect of such proceedings, if adopted. The development of a special strategy for the purpose of managing your case is of crucial importance, since no divorce is similar to another, and each case is unique unto itself!
The answer is one word: Now!
Has a motion for a protection order been filed against you?
In the event that a motion for a protection order is filed against you, it is important to act as follows:
* Contact a lawyer immediately.
* when, if a protection order is issued ex parte against you, a hearing will be held in the matter at the court within only 7 days from the date of the order, and your affidavit in response should be submitted to the court before the hearing is held. It is important to contact an attorney engaged in the field of family law, since in general a motion for a protection order is an inseparable part of an overall family dispute.
* In the event that no other proceedings are initiated between the parties, the filing of various claims relating to the domestic dispute should be weighed promptly before these are filed by the counter party, so that the claims are heard at the court that is most advantageous for you (see the “jurisdiction race”) and on these grounds too it is essential to contact a lawyer immediately.
* It is important to reconstruct in writing, as soon as possible to the event, the details of the event for which the motion has been filed as well as previous events likely to prove relevant.
* The wording of the protection order should be examined carefully as well as in whose favor the order was entered and what are the restrictions arising therefrom.
* The provisions of the protection order should be complied with meticulously, even where the protected family member has contacted you, asked to speak to you or meet with you - in contravention of the provisions of the order. This is so since, under the Prevention of Domestic Violence Law, the behavior of the protected party cannot release you from your duty to act in accordance with the protection order, which is a judicial order in all respects and the violation of which constitutes a criminal offense.
* In the event that - within the framework of the protection order - you are barred from your home but not from your children who reside at home, it is important to act to schedule visitation arrangements with the children (outside the home). This can be done via a lawyer or someone to mediate from your family or friends, or via the court, the support unit or the welfare officer appointed by the court to this end.
How to dissolve a mixed marriage?
A High Court judgment held that the Rabbinical Courts are not authorized to make any stipulations with regard to the marriage of spouses where one of them is Jewish and the other is not. even if they applied to the Rabbinical Court by consent. This is so since the Rabbinical Courts treats such a marriage as void ab initio under Jewish Law and does not examine the foreign law. Accordingly, there is a concern that even should the Rabbinical Court declare the marriage to be void, the parties would still be married to each other pursuant to the foreign law. Therefore, an application should be made to the Family Court to order the dissolution of the marriage, while examining the applicable law of each of the parties.
Debts Questions
Within the framework of the family laws a person has a fundamental responsibility for the debts of his/her spouse which were accumulated during the course of the marriage or the cohabitation, apart from various execeptions. However, in this context, a distinction should be made between the responsibility for the debts as determined within the framework of the internal relationship between the spouses and the responsibility for the debts vis-à-vis the creditor.
1. Debts Between Spouses
Sharing Of Debts According To The Property Sharing Rule
It was held in case law that as a consequence of the presumption of a general partnership in assets (see the section dealing with the property sharing rule), there is also a presumption of a parallel partnership in the debts accumulated during the ordinary course of the partnership or during the normal married life for the purpose of family property or for the purpose of ongoing expenses of the family. This also holds true for a business debt, since, just as the profit from the business conducted in a joint effort is shared, the liabilities of the spouse for that same joint effort are also shared. Furthermore, it was held that for the purpose of calculating the value of joint property, general debts would also be taken into account, even if they do not necessarily relate to a particular property, namely, that there is a partnership both in respect of the “good” and the “bad”.
Exceptions
The aforesaid in respect of sharing debts does not apply in exceptional cases as defined in the case law, however the burden of proof rests with the party claiming that exclusion. Thus, for instance, debts of a personal nature which are not related to the joint lifestyle of the family are excluded; debts created as a result of the violation of a fidelity duty vis-à-vis the spouse such as a husband’s expenses for maintaining a mistress or expenses related to separate private property; debts created as a result of an offense of either of the spouses and payment of fines in respect of such offenses; debts created in consequence of expenses that would not normally be expenses from the couple’s account.
The Liability For Debts According To The Balancing Of Resources Arrangement
Pursuant to the Property Relations Between Spouses Law, 1973, in the course of the marriage there exists a property separation between the spouses, while the balancing of resources between them is implemented upon the termination of the marriage and within its framework an assessment of the couple’s assets is made less the debts accumulated by them. Hence, it is only on the date of the termination of the marriage, upon the balancing of resources that the amount of the spouse’s debts is deducted form his/her rights (see also "Property Relation Between Spouses Law").
Exceptions
Within the framework of the balancing of resources, debts in connection with assets that are not subject to balancing of resources - as provided in the Property Relations Law (such as assets received as a gift or inheritance or assets accumulated by one of the spouses prior to the marriage – see The Property Relations Between Spouses Law), should not be included. Case law further holds in this context that a personal debt should not be deducted from the total assets of the balancing, namely, a debt which has no connection to any asset which is subject to balancing and does not also fall within a debt created in connection with the management of the domestic life for the maintenance and normal way of life of the family.
2. Debts Between The Debtor’s Spouse And The Creditor
Property Sharing Rule
A recent supreme court decision sets the rules according to which a spouse shall have direct liability to the other spouse debts accumulated during the marriage. The supreme court examined the date of the creation of the debts, and the marital situation of the spouses at the time, the character of the debts etc'. It seems that in this issue each case has to be examined on its merits.
The Arrangement of Balancing of Resources
It was held in case law that even where the issue is a significant personal debt taken by the spouse, the fact that the asset from which the creditor wishes to collect the debt is registered in the name of the debtor spouse only prevents the other spouse from receiving relief in the relationship with the creditor. This is in view of the fact that the right to balancing of resources, only consolidates upon the termination of the marriage. At the same time, it was held that where a spouse who is subject to a regime of balancing of resources applies to share a property on the basis of sharing a specific property, such spouse will also be liable for the other spouse’s debts in connection with said property.
What are the advantages of mediation?
* The quickest and cheapest way to solve disputes.
* An agreement reached by means of mediation can satisfy a variety of needs and interests and offer creative and non-conventional solutions not offered by the courts.
* Participation in a mediation proceeding is in fact taking part in determining the outcome of the dispute – instead of a situation where decisions are made by an external body.
* A divorce agreement reached by means of a mediation proceeding may enable and perhaps improve the on-going relationship between the parties and will facilitate the maintenance of a communication channel which is essential to separated parents.
* Experience shows that people exhibit a significant level of commitment with respect to agreements reached in the wake of mediation.
* Neutralizing the legal risk.
* Privacy.
* The mediator can be selected by consent (as opposed to an unknown judge designated by the system).
To divorce or not to divorce? That is the question !
Undoubtedly, this is an important and even a critical personal question. We are not pretending to answer it – but below we list some of the considerations affecting the making of a decision in this context:
* General Circumstances: The length of the marriage; with or without children; is this a first marriage?
* Circumstances of the Crisis: Whether or not you get along, whether the “spark” between you has died, does an external difficulty threaten the relationship (economic crisis; illness, etc.), whether or not a third party is involved in the crisis (infidelity, etc.), or perhaps this is a middle age crisis...
* The Duration of the Crisis: Has the crisis just started or is it an ongoing crisis? Sometimes the time that has lapsed also has a bearing on the nature of the relationship between the couple.
* Children – Living separately also involves division of the time with and responsibility for the children, while in most cases the mother is designated the custodian and the father is entitled to visitation rights (see “custody”). Further, in most cases, as a result of the parents’ separation from each other, the children experience an inevitable crisis. In this context, it should be stated that continuing a married life full of misery and quarrels under one roof is liable to cause very severe damage and in such cases experts determine that separation and divorce can result in appeasement and relief for the children. Undoubtedly, the children’s age is also a weighty consideration when deciding the question of the divorce and in general, the parenthood of each of the spouses has a crucial effect on their future conduct as a divorced couple.
* Economic considerations – dissolution of the family results in heavy economic damages in consequence of the division of the domestic resources and the need to maintain in parallel two households instead of one. In consequence, some prefer to continue the married life even if this entails considerable suffering for everyone involved. Furthermore, at the time of the divorce a balancing of resources takes place between the parties and in cases where the other party has heavy debts, there is a risk that at such time the other party’s debts will apply to you (see “debts”) Needless to say, many times in the event of a dispute between spouses and the conducting of legal proceedings, the economically weaker spouse is expected to suffer for a certain period from economic difficulties while the other spouse, as part of the sanctions adopted by him/her, does not allow to him/her any access or use of the domestic economic resources. In such cases the capacity to raise economic support for the interim period from family members or through other means is important, in order to get through the hard time up to the decisions as to the proprietary issues between the spouses.
* Social considerations – Sometimes people attribute importance to acceptable norms in the society we live in. Thus, for instance, in a conservative society, divorce will be treated as a drastic and a non-conventional move. However, there is no doubt that at present, in the modern society in which we live, a divorce is not treated as an exceptional or drastic move.
* The extended family – Sometimes the question of how the divorce will be treated in your family is also taken into account. In extreme cases or in certain families, it is not acceptable to divorce and the parents estrange themselves from their children who get divorced and in other cases, where there is family support, this facilitates the decision to divorce.
* Your age and the ability to “open a new leaf” in life – generally, the age at which the option of getting a divorce is weighed, is also important. Thus, for instance, at a young age, before the couple has had any children, it would be reasonable to assume that each of the spouses will be able to be rehabilitated quickly and to find another partner. A woman nearing the end of the fertility age who wishes to give birth to other children not with her current spouse would generally tend to choose a divorce. On the other hand, a mature woman who has already realized her parenthood would tend to weigh economic and other considerations before entering into a divorce. With regard to men – the option to open a new page in life is available for a wider age span.
Sometimes at an older age, spouses prefer “to turn a blind eye” and to continue living together out of considerations of convenience and a reluctance to make drastic changes at this stage in their life. If you are pondering this question, it is important that you take into account the following advice:
* In many cases, particularly where the crisis is at its outset, where minor children are involved, or in any event where there is a mutual desire to do so, before your marriage is terminated, it is advisable to attempt to rehabilitate the partnership, inter alia, via some sort of partnership therapy. In the event that this attempt fails, a divorce can always be considered.
* It is advisable to ask for the assistance of a family member and/or a close friend who knows you well, who can assist you in making the critical decision and even support you in the future in any way selected by you.
* It is advisable to consult with a professional from the therapeutic field (psychologist, social worker, etc.) in respect of the crisis in the married life and the options you have, as well as concerning the damages liable to be caused to your children in consequence of selecting such or other move.
* It is advisable to get organized and to collect documents and data relating to the income of the other partner and to the domestic property registered in the name of either of the parties.
* It is advisable to consult a lawyer even at the stage of deliberation concerning the divorce and to obtain all the information relevant to your legal status and to the implications thereof on your future – in order to eventually make a decision based on your actual personal, economic and legal situation.
Was a family member violent towards you? What can be done?
In the event a family member has been physically or verbally violent towards you, do the following without delay:
* Contact the police urgently for protection and assistance.
* Go to the police station and press charges against the violent family member.
* If you suffer physical injuries in consequence of the violence, contact a medical entity to get the necessary medical treatment.
* It is important to remember to get a detailed confirmation from the entities you apply to in this regard (including a confirmation of pressing charges and confirmation of referral for medical treatment).
* Apply to a lawyer in order to submit a motion for a protection order with the competent court (see “protection order”).
* It is important that all the above actions be taken immediately or as close as possible to the violent event.
You were married in Cyprus. Are you entitled to alimony?
It has been held, that even where there is no written agreement between spouses who were married in a civil ceremony in Cyprus, and although the husband is not obligated to pay alimony to the wife under the personal law (see “wife’s alimony”), the duty to pay alimony can occur by virtue of the principle of good faith. This is so since it is not appropriate to determine that upon separation, the economic commitment between the partners is severed, particularly in cases of clear economic dependency of the wife on her spouse. Accordingly, the imposition of the duty to pay alimony for a period, the duration and extent of which depend on the special circumstances of each and every case, is obligatory.
