What is a Jewish Family Law Attorney
A Jewish family law attorney is an attorney that understands the intricacies of the laws of Jewish tradition when it comes to marriages, divorces, child custody, marital assets, and spousal support. These laws are customary in the Jewish culture and govern many facets of Jewish life. However, these laws do not supersede secular laws and an attorney must understand how to combine both secular laws with these traditions. A Jewish family law attorney has the education and training to make this happen effectively.
This type of attorney is personally observant in his or her faith , but you do not have to be personally observant of Jewish culture to work with them. Many secular courts require that religious divorces be granted by religious authorities from both parties. Many judges will not grant a divorce until the religious divorce is granted.
You do not have to be Jewish to work with this type of lawyer. Any one that is observant to the Jewish tradition would consider working with a Jewish family law attorney. Judaism views divorce as a last resort, but this is the case for any religion.
Legal Services Covered
The primary legal services offered by a Jewish family law attorney include drafting and reviewing marriage contracts, divorces, and child custody arrangements under Jewish law.
In the marriage contracts, known as "ketubah," will set forth conditions for the marriage and any future potential divorce. An attorney will ensure the contract is in compliance with Jewish law and protected under civil law.
The process of obtaining a divorce under Jewish law is referred to as "get." In order to obtain a divorce in New York under Jewish law, one or both parties must file for a divorce separately under civil law. A Jewish family law attorney is especially skilled at ensuring that issues within the civil process are handled in ways that are legally enforceable in Jewish law.
Child custody can often become a major issue during a case. Working with both parents, a Jewish family law attorney will help them come to an agreement on what to do while also making sure that their agreement is compliant with Jewish law.
Jewish Divorce Process
The Jewish divorce process is a little more complicated than what you would encounter when going through a civil divorce, so it’s important that you have an attorney on your side who thoroughly understands this process and can ensure that you complete all the steps required to dissolve your marriage correctly. When a man and woman want to get a Jewish divorce, the trail begins with the husband giving his wife a "Get," which is a formal legal document that states their mutual agreement to divorce. In order to obtain a Get, it is important that both spouses follow Jewish law in every step of the way. The divorce must be carried out in front of witnesses, and both parties must sign the document in front of those witnesses. The process of drafting a Get requires specific skills. It’s not something that can simply be filled out, signed and done. A properly written and signed Get requires the guidance and assistance of an attorney well versed in Jewish family law. He or she will know how to include the proper language in the document to satisfy Jewish law. This is especially important because a civil divorce does not necessarily equate with a proper Jewish divorce. In order for a Jewish divorce to be rendered valid, it must be completed in its entirety in front of the witnesses, and both parties must freely consent to the terms of the divorce. Otherwise, the parties risk multiple problems for many years to come. First, the divorcing spouses risk damaging their relationship with their families and the greater Jewish community. Second, failure to properly document the divorce will have an effect on the parties’ halachic standing. Third, there may be a risk that the Get will not properly serve to dissolve the marriage. Fourth, failure to adhere to all the necessary steps of the divorce will render it invalid under Jewish law and potentially impact the parties’ ability to marry other people in the future. Jewish family law differs from civil law when it comes to such issues as remarriage or spousal support. An experienced Jewish divorce attorney will understand these differences, and will have a strong grasp of state and federal law pertaining to divorce so as to ensure the protection of your rights and interests in the divorce process. The most important thing to remember about online resources or guides for Jewish divorce is that they cannot at all replace the legal advice offered by a qualified and experienced attorney. The guidance of an attorney will not only allow you to properly navigate Jewish divorce proceedings, but it also will help you avoid the consequences of an improperly completed divorce.
Child Custody and Support Under Jewish Law
Child custody and support under Jewish law continues to be governed by the Torah, Rabbinic law and custom. The Torah provides that the father is responsible for educating a child. The duties of teachers to the students are similar to the parent-child relationship. A father must teach his son Torah, a trade and how to swim.
The father must also teach a girl Torah as well, subject to Rabbi Judah haNasi exegesis which is considered authoritative by legal decisors such as Maimonides, Joseph Karo and Shlomo Luria. While the father’s primary financial responsibilities are to his boy children, he has a secondary or ancillary financial responsibility to his girl children. Since his daughter will be married to someone else, he is only expected to provide the educational benefit in a mere fraction of what he spends on his son. The extent of this obligation is enshrined in contracts formed during the marriage. It is not a typical contract because Jewish law does not recognize prenuptial agreements to release a father of his support obligations. Such agreements are rabbinically discouraged because the child will suffer.
The rabbinically created principle that applies in situations like this is called a "penalty clause" which is designed to incentivize compliance with his obligations. That is why the penalty clause in a marriage agreement where the parents have entered into a marriage contract is only enforced if there is a valid reason. The penalty statute is triggered if the father contests his financial responsibility.
Where the father has a daughter, Maimonides records that R. Natan of Narbonne stated that the father has a direct contractual responsibility for the education of the daughter. He has no direct responsibility for his daughter’s support after she has married, unless she is a virgin on her wedding night. Jewish law provides that a man give his wife a writ of divorce and provide her with a financial settlement. This is the ketubah which like any other contract is subject to the doctrine of freedom of contract.
Maimonides ruled that no guardian is entitled to collect upon a marriage bond or a ketubah. If the bond is to her guardian, the terms of the bond will govern. Once the daughter is married, her father has no direct responsibility, per se, to support the daughter. Jewish law provides that the husband must provide his wife with food, new clothes, shelter, medical care and sexual satisfaction.
Jewish Law imposes financial responsibilities and penalties for a father. In Israel, Child Support Guidelines govern support aspects of a child support award. These guidelines are not applicable in matrimonial actions before a court in Israel.
Mediation and Alternative Dispute Resolution
As part of the overall effort to promote an amicable settlement of issues arising before a Court, Jewish family law attorneys often help facilitate extra-judicial confession and conflict resolution. Mediation can often be used to resolve disputes outside of the collaboration process. This can include emphasizing the values involved in the dispute and working through the problem in order to craft a solution which addresses not only the practical outcome but also the philosophical underpinnings of what both parties are attempting to accomplish. If the conflict cannot be resolved outside of Court utilizing blessings and prayer, the Jewish law teachings can still be utilized in Court submissions to attempt to support the remedy sought by the party.
When the parties are able to successfully mediate the conflict without the involvement of a Court we can draft agreements that address all of the issues they’ve discussed on a complete basis and prepare a process for the Court to enforce this settlement. While the settlement agreement will not be a "court order" it can include language which will essentially make the same enforceable. Often times parties have engaged in conflict resolution efforts to achieve a result which has the flavor of a Court Order however does not contain any of the detail contained in one. A Northern New Jersey Jewish family law attorney can prepare language which utilizes the principal of your settlement agreement and convert it into the type of order which a Court would not only enforce but the Commissioner of the Child Support and Paternity Registry would utilize if one of the parties fails to comply with the terms of the agreement.
It is important to remember as well that simply because people are fighting over issues in Court does not mean that it will always be this way. When a Jewish family law attorney works with clients and their spouse on a complete settlement to deal with their conflict, the result is often mediation more on the parties terms then the terms set by the Court.
Knowledge of Ketubah and Prenuptial Agreements
In Jewish marriages, Ketubah and prenuptial agreements play a significant role which is no different than a traditional agreement in general. The Ketubah is a practice that is at least 2,000 years old. The prenuptial agreement is more modern.
The Ketubah is a written contract between husband and wife, specifying the amount of money which the husband will give to the wife in the event of a divorce. This is referred to as "Maiser Kesafim". The current practice during Ketubah signing ceremonies is to include a "Meyer’s Share", providing an increased payment to be made in the event of a divorce.
The Ketubah also establishes and determines how much and whether alimony is payable. Particular focus is placed upon the religion of the husband and wife. If they are both Jewish, the husband is prohibited from re-marrying unless an interlocutory divorce has been obtained from the Rabbanut. If divorced without a Rabbanut interlocutory divorce, he will then be obligated to give his wife a "Get" before a proper Rabbanut divorce can be processed .
The prenuptial agreement in Israel is signed – usually – at the time of the marriage ceremony and deals with monetary and property issues, such as property rights, partitioning assets acquired during the marriage, and particularly, how to divide assets in the case of a divorce, as well as putting forward a dower amount, or Maiser Kesafim.
The agreement is written in Hebrew, translated and certified by a notary as an accurate translation, signed in front of a notary, and then certified. The agreement is drafted by a lawyer specializing in family law. The attorney should be familiar with balancing the religious considerations and the civil law requirements.
The prenuptial agreement places a limit on the amount of money which must be paid to the wife upon divorce. If the parties have had children during the marriage, the agreement will determine how much other money is required for the children. Generally, the agreement will divide the property of the parties during the marriage. The civil courts often uphold the prenuptial agreements but the Rabbanut will not.
Cultural Sensitivity
Cultural sensitivity is of utmost importance when these twain legal issues meet. A Jewish family law lawyer will be sensitive to such issues as the "agunah" issue; the need for a woman to obtain a religious "get" from her husband as part of a divorce process; and she will know how to advise the client on how to deal with the general fear of losing parental rights if religion can be proven to be part of the decision-making process. An experienced family law attorney in this regard will know what the law requires and what the law does not require, as well as what may be enjoined by the religious institution such as a synogogue or religious observance group. Such an attorney will also be sensitive to the strong Jewish emphasis on notions of tzedakah (charity) and give full credit to issues of child support beyond mere child support as measured by Child Support Guidelines. Moreover, she will deal with issues of charitable contributions being made if family funds are recovered….
Finding the Right Jewish Family Law Attorney
Selecting the right Jewish family law attorney can feel overwhelming, especially for those who have never had the need to consult with an attorney before. The list of qualities an attorney should possess can feel endless, so it helps to narrow it down to a few essential questions. These questions should focus on how experienced the attorney is, their relationship with other legal professionals and judges, and their approach to cases if you and your spouse are not able to reach an agreement and litigation between you is needed. Since being represented by a Jewish family law attorney in New York means that you will have multiple meetings with the rabbi, it is helpful if the attorney you consult with is visible in the Jewish community and well-known. This doesn’t mean that the attorney should be of the same denomination as you, but it can certainly help if they are. When consulting with multiple attorneys, ask each if they have worked with the rabbi before and if so, whether that experience was positive. You also get a sense of how comfortable the attorney is with both practical and religious aspects of your case. If you are comfortable asking, what rabbi does the attorney plan to use or defer to? Again, you should ask or not hesitate to ask those you consider potential representatives if they have worked with the courts before, and if they are comfortable taking your case to litigation if necessary. Litigation is often intimidating, so the experience you and your attorney have to get there and go through the process together is important. You should be comfortable discussing the goal of your case with your attorney. Many who are involved in contentious divorces hope to avoid litigation, but know that the attorney will take it there if necessary. If you feel your approach might differ from your attorney’s during the divorce case, making a change now could be wise. Look for an attorney that has experience working with the courts and litigation, but also has their own ideas about the best way to handle a case and can see it through to a conclusion.
Helpful Resources for Jewish Families
In addition to resources provided by the attorney, there are many other community organisations available to support Jewish families. For instance, the Jewish Family and Children’s Services (JF&CS) offers a variety of services, from meals on wheels to counselling services. In New Jersey, you can reach them at 1-800-409-4306 or visit their website. In Philadelphia , call them at 1-877-756-1915 or check them out online. The JF&CS is also available in the Baltimore area. Call 410-843-7465 or visit their website.
The Jewish Federation can also assist with resources and information. You can reach the New Jersey Federation at 1-973-929-3040 or go to their website. The Philadelphia Federation can be reached at 1-215-832-0500 or visit their website. The Baltimore Federation can be reached at 1-410-542-6600 or visit them online.
There are many resources throughout the world for the Orthodox Jewish legal community. In Israel, there are several committees that assist with various legal issues and they can be found here.
Online resources are also available to attorneys, including divorcetech.com, which provides lots of examples of financials and tips on what should be included.