As divorce lawyers everywhere can attest, January is usually a very busy month. After New Year’s, starting right when we return to work on January 2nd, those who have been contemplating divorce, and waiting for just the right moment, decide that the time is now. They tell their divorce lawyers that they will not spend another solar calendar year married. Their resolutions are strong and they are eager to act.
However, only those divorce lawyers who have extensive clientele in Jewish communities know that September and October can also be just as busy for those who decide they will not spend another lunar year attached to their spouse.
While Jews don’t quite have the same concept of “New Year’s Resolutions” that can be pervasive in other cultures, perhaps all that time in shul (synagogue) over the high holidays has provided a crucial opportunity to reflect, and to decide to make a change for the upcoming year. Other times, the extensive together-time afforded by the Jewish holidays, where everyone shuts off all the outside noise and spends time a lot of time together as a family, provides the necessary impetus for an immediate change. Whatever the reason, they are ready.
Still, there are special feature inherent in Jewish divorces, that should be considered as anyone embarks on a journey toward divorce. Here is a short list of those considerations, which will be expounded upon in future posts:
- Choice of Forum: Bais Din versus civil court. A Jewish couple must consider whether their divorce will be heard in civil court or in Rabbinical Court, known as Bais Din. There are many factors that can affect this decision, including the financial considerations, whether a couple wants custody issues decided by a Dayan (judge/arbitrator) in Bais Din or a civil judge, the degree and natures of the disputes between the couple, or even a party’s comfort level in one forum versus the other. Whatever the selection, it should be made with full knowledge of the pros and cons of each, after receiving advice from someone familiar with the implications of the decision under both to Jewish law and secular law.
- Necessity of a Toen. If a matter does proceed to Bais Din, parties should each strongly consider engaging a Toen, an advisor who represents each spouse in Bais Din and has required familiarity with Jewish law. In addition, most parties have an attorney in addition to a Toen. The selection of Toen may be a critical component of the trajectory of a case in Bais Din.
- Timing of the Get. A Get is a Jewish divorce document that a husband must give to the wife to effectuate a Jewish divorce according to Jewish law, Halacha. Once the Get is given by a husband and accepted by a wife, the couple is no longer married according to Jewish law. The timing of the Get is critical, considering that once it is given, the husband and wife usually cannot continue to reside together; even in separate bedrooms. If it is the parties’ intention to live together during a divorce, they should consult a Rabbi to determine how that will be affected by the Get and timing.
- Halachic Prenuptial Agreements. A Halachic Prenuptial Agreement is a legal document that is executed prior to a wedding which goes into effect in the unfortunate event of a contested Jewish divorce; namely, if a Get is not given when requested. In that event, the Halachic Prenuptial Agreement would provide for monetary support for the wife, until such time the Get is given. While these agreements are becoming more mainstream in certain Jewish communities, they remain relatively rare in others. Knowing and understanding if you have a Halachic Prenuptial Agreement will give you more information in the event a case involves Get-refusal.
- Special Custody Considerations. There are certain custody arrangements that a Bais Din would entertain that a civil court generally would not consider. If a couple is not divorcing in Bais Din and are instead proceeding in civil court, it will be necessary to provide education to the court regarding Jewish holidays, the necessity of exchange times prior to Shabbos and Yom Tov (holidays), and cost sharing for Yeshivos, seminaries, camps, and other programs. Depending on the priorities of a family, it may also be beneficial to set aside money from assets for bar/bat mitzvahs or weddings.
Whatever a Jewish couple’s path during a divorce, having the right team in court or in Bais Din is critical. From cultural sensitivities, to specific legal requirements in a divorce or custody agreement, it is beneficial to have a lawyer that understands and appreciates all of the special considerations that are unique to a divorce in the Jewish community.
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.