Before explaining the nature of the duty to pay child support, to whom it applies and by virtue of what, we would like you to be aware that the award of child support by the court is made while examining each case and its specific circumstances, such as:The number of children in the family; the children’s ages; the children’s needs (and whether there are special needs), and the like. Further, the economic capability of the father is examined and measured not only on the basis of his salary but also on the basis of his property and his earning potential.
It should also be stated, that in accordance with the principle of equality between the genders(that is being applied at present by the family courts in the matter of child support), and the rules of equity under Jewish law, the trend at present when awarding child support is overall balancing of the family’s income from all sources (including the wife’s income), taking account of all capabilitiesvis-à-visthe needs and determining, in accordance therewith, a reasonable rate for child support.This is in conflict with the previous prevailing approach, where emphasis was placed, almost entirely, on the father’s economic capability.
The fact that there is a judicial discretion in the award of child support, on the basis of various parameters, to which each judge attributes a different weight, as well as the changes that have occurred recently in the award of child support, in the decisions of some of the judges, all this makes it clear to us that the amount of child support cannot actually be assessed with certainty.
Mandatory needs and enhanced needs– Mandatory needs are the most basic and minimal needs, which are necessary for the existence of the minor. The prevalent trend in case law distinguishes between mandatory needs and needs beyond the mandatory needs (enhanced needs), while restricting the mandatory consumption components to a minimum and deciding about the other components of consumption in reliance on the “enhanced maintenance” rules, imposing the duty to fulfill them on the father and the mother, proportionally to their income.It should be emphasized that the determination as to which consumption components should be attributed to the sphere of mandatory needs and which consumption components should be transferred to the sphere of “enhanced maintenance” rests with the court hearing the case, in accordance with the circumstances of the case before it (food, clothing, dwelling etc. will in any event be considered mandatory needs).
It should further be noted, that the current trend in case law is to balance the division of the burden of the child support so that from the father’s income the amount he is charged to pay as part of his absolute duty to bear the mandatory maintenance is deducted, while the remainder of the father’s income is balancedvis-à-visthe mother’s income for the purpose of the division of the burden–proportionally, in providing for the enhanced maintenance.
How are the mandatory needs determined?The determination of the mandatory needs is made in two stages:At the first stage– The minor’s general needs, which are common to all minors, the proof of which does not require any detailed evidence.The rate of these needs has been defined in the case law of the District Court as amounting to aboutNIS1,150, excluding dwelling and dwelling costs and without educational expenses (kindergarten, day care centers, etc.).
At the second stage– the specific needs of the minor whose case is heard before the court are examined.At this stage, the court examines whether there are special expenses in respect of such specific minor, such as:psychological treatment, a minor with learning or other disabilities and such other needs which are unique to that minor.
In summary we can say that needs such as food, clothing, footwear, dwelling, household expenses and medical expenses fall within needs which are mandatory for the minor’s subsistence.
On the other hand, expenses relating to vacation, recreation, toys, pocket money, courses, etc. do not fall within needs that are mandatory for the minor’s subsistence.
Dwelling– The expenses for dwelling (rent) and the maintenance thereof fall within mandatory need sand therefore are part of the fathers’ duties.The rate of the obligation changes in accordance with the number of the children.It was held that for one minor the father is charged at a rate of 33% of the rent of an apartment similar in its general level to the previous residential apartment, while possibly the fact will be taken into account that following the break-up, the number of tenants living in the dwelling has decreased and therefore rent for a smaller apartment will be taken into account; for two minors a dwelling at a rate of 40% was determined and for three minors the father’s participation in the dwelling stands at 50%.It should be noted that the charge for the dwelling and the maintenance thereof is in addition to the mandatory maintenance.
The rule concerning mortgage payments states that they fall within a capital charge applicable in the financial relationship between the husband and the wife and do not fall within maintenance.At the same time, the continued payment of the mortgage is a means to ensure the dwelling and the court may include this information in its calculations for the purpose of determining the support, and obligate the father to bear the monthly payment of the mortgage as part of his obligation to bear the minors’ dwelling.
Care fee– Care fee constitutes part of the minor’s support and is included in the father’s duty to provide for his children.The care fee varies with the children’s age.The younger the child is, the more time is required for care. Therefore, in the courts case law it is customary to determine the charge of care fee in a graded manner.
The care fee is awarded to the custodian mother, even where the mother hires help for the minor.
It should be stated that a wife who receives alimony (for her) from her husband, is not entitled to care fee, since the care for the children is treated as the married wife’s duty (see details in the section dealing with thewife’s alimony).
Temporary child support– In the vast majority of maintenance cases, the need arises to grant temporary child support.The award of temporary child support can be done in two ways:After the filing of the statement of defense by the defendant, the plaintiff (the minor, normally through his mother) can submit the appropriate motion; or, alternatively, during the preliminary hearing in the maintenance file, the plaintiff will seek temporary child support.
When deciding on temporary support, the court does not enter into a comprehensive analysis of the evidence and does not delve deeply into the matter.The court balances between the interest of the plaintiffs (the minors) to receive an immediate temporary relief and the possible compromise of the defendant (the father).
The purpose of the temporary support ismaintaining thestatus quoas it was prior to the institution of the legal proceedings, so that it would not be changed by any of the parties unilaterally, pending the award of the permanent maintenance.Namely, the maintenance will be awarded so as to maintain the life style of the family on the eve of the dispute.
The principle of equality in awarding maintenance-When the court comes to award the child support, the court takes account of the family’s income from all sources, while balancing among them.The court balances between the amount that remains with the father after the payment of the child support and the amount that remains with the mother.This principle is based both on the laws of equity under Jewish law as a means to rectify distortions in cases where the maintenance laws offer no appropriate response and for reducing the mandatory maintenance to a minimum, so that the balance of the amount which the minor requires will be applied as “enhanced maintenance”, with which both parents will be charged, proportionately to their income.
It should be emphasized that by following this principle and awarding in accordance therewith,the court does not exempt the father from the mandatory needs, but rather narrows down the scope thereof to a minimum, taking account of the economic data and the income of both parents.
Decrease / increase of the child support– A monthly support judgment can be altered in the event of a material change in the circumstances, taking account of the current situation, as compared with the circumstances that existed at the time of the awarding of the judgment, and which constitutes the starting point for examining the alteration.This can not be an insignificant change, and not every change in the circumstances has automatic implications on the amount of the maintenance.The court hearing the new claim will examine and hold whether there has been a change in circumstances, what the change in circumstances is it justifies a change in the amount of the child support that was determined in the past.
It has been held in case law that the amount of the maintenance agreed upon by the parties, should not be easily changed but only in “outstanding cases”.A material change in circumstances for the purpose of changing child support, is such that was not anticipated and that was impossible to anticipate at the time of reaching the agreement.
Thus, for instance, it was held that the birth of another child from another relationship constitutes in principle a material change of circumstances.However, this still does not constitute a fact that, in itself, will lead to a reduction in the maintenance. Rather, this new circumstance should be examined in the light of all the other changes that have occurred, such as, for instance, changes in income.Only where the aggregate of circumstances constitutes a material and fundamental change will there be a ground for a change in the child support.
Another example is a material change that has occurred in the father’s economic situation.Severe circumstances that were experienced by the father are not sufficient. Rather, he has to show that due to them, his earning power has been significantly adversely affected.
Maintenance claim by a minor where there is a divorce agreement– The rule is that where there was litigation between the parents of the minor in relation to his maintenance, and the minor was not a party to the proceeding and his case was not heard on the merit, the minor may file a new maintenance claim on his behalf, without having to show a change in circumstances.This is a material test and where there are indications that in the agreement between the parties, the minors’ best interests were also considered, the agreement is binding in all respects, and in order to change it, the minor will have to show that a material change in circumstances has occurred.
In most cases, an agreement where the minors’ needs have been well provided for, will be classified as an agreement that should not be intervened in; on the other hand, the minor’s independent claim will be allowed, where it transpires from the agreement that the mother actually “bought” her freedom at the expense of the minors in the form of skimpy and meager child support.
Child support from the age of 18 up to the termination of the mandatory service in the IDF– The obligation to pay child support does not arise from the personal law, but by virtue of sections 4-5 of theFamily Law Amendment (Maintenance) Law, 1959. The Supreme Court interpreted these sections in a broad manner and held that there is a presumption to the effect that even during the mandatory service in the IDF there is still a certain dependence of the children on the parents, and hence, the conditions of a “dependent” under Jewish law also exist for an adult serving in the IDF.
The customary practice is that the maintenance paid by the father, decreases to about one third of the maintenance for the minor, once he/she reach maturity.
Collection of maintenance via the Execution Office– Similar to any other judgment, a maintenance judgment may also be collected via the Execution Office.However, in view of the unique nature of the judgment awarding child support, there are certain alleviations customary in respect of collection of a maintenance debt via the Execution Office as compared with the collection of a normal debt.This is so since the subsistence of the judgment creditors, the minors, depends on the actual implementation of the judgment.
Thus, unlike the collection of an ordinary debt, since the income, property and the means available to the maintenance debtor were taken into account when determining the amount of the child support, the maintenance debtor will undergo no examination as to his capability before the Head of the Execution Office as part of the collection proceedings, including the exercise of imprisonment proceedings, since his capability has already been determined in the maintenance judgment.
It should be stated in this context that a maintenance debtor can be imprisoned for a period of up to 21 days, while the imprisonment for a normal debt is limited to 7 days.
Likewise, the maintenance debtor’s salary is not protected against attachment, as distinct from the collection of an ordinary debt.Furthermore, a stay of exit from Israel due to a maintenance debt is not subject to the limitation of expiry within one year from the date of the awarding thereof, as opposed to a similar order entered due to a regular financial debt.Further, a maintenance debtor will not be declared as limited in means for the purpose of rescheduling the maintenance debt.