Temporary remedies in divorce proceedings
Temporary remedies are orders that allow the parties involved in the divorce proceedings to impose sanctions, restrictions, or exercise rights until the investigation of the claim is completed, in order to ensure that the existing situation is preserved and frozen before the claim is filed, and also to ensure that the future judgment will indeed be enforceable.
Temporary remedies are granted by a judicial body such as the rabbinical courts or Home Family Lawand include a variety of orders such as: seizure orders, restraining orders, orders to delay leaving the country, protection orders, and the like.
In order to go to court and receive temporary relief, it is important to be represented by Experienced family law attorney, for reasons we will detail in the following article.
When does the need for temporary relief arise?
There are a wide variety of situations before the divorce or during the court hearing in which it becomes necessary to request temporary relief in favor of one of the parties, with one of the common situations being the fear of smuggling joint property.
Property smuggling can be expressed in the sale of assets and joint property, giving or taking fictitious loans, distributing gifts to relatives, cashing in on executive insurance and savings plans, and more.
Read more about: Smuggling Assets in Divorce Proceedings
Another common scenario is the spouse fleeing the country immediately upon receiving the divorce petition, in addition to the grave fear that the spouse will take the children with him without prior notice.
Additional circumstances in which the need to request temporary relief arises are when one of the spouses is violent, with the purpose of the protection order being to create separation and distance during the divorce in order to prevent harm to the party requesting the order.
Types of temporary relief
Order to delay departure from the country
An order to delay departure from the country is used in circumstances where there is a real concern that one of the spouses may leave the country immediately upon receiving a judgment against him or upon receiving the divorce suit.
Many women resort to this remedy to prevent themselves from becoming agunot and to ensure The foods. The order is also intended to prevent the possibility that one of the spouses will take the children they share and flee abroad with them. An order to delay departure from the country in this case will also be for the children.
The conditions for obtaining a stay of departure order – An order to delay departure from the country is an extreme tool, since the order may lead to significant damage to the spouse against whom the order was issued, mainly restricting freedom of movement.
Therefore, the conditions under which an order to delay departure from the country will be granted are a well-founded concern that led to the request, the plaintiff’s good faith and clean hands for the temporary relief, and the balance of the expected damages to each of the parties in the dispute if the order to delay departure from the country is granted or rejected.
When is it recommended to request a stay of departure order? The order to delay departure from the country must be requested during the lawsuit, and in exceptional cases, the order can be requested even before the legal proceedings have begun, with the validity of the order being conditional on the filing of the lawsuit within a week of the issuance of the order or at any other time according to the court’s considerations.
The procedure for submitting an application for a stay of departure from the country – The application to the court for the issuance of the order to delay departure from the country must be made in writing, and include an affidavit detailing the facts of the case on which the request is based.
The affidavit must be accompanied by an extract from the population registry that includes the party’s name, his surname also in Latin letters, as well as his address, ID card or any other detail that may prevent a mistake in identification. It is important that the affidavit include any data or detail that reinforces the fact that the concern is genuine and serious.
The court’s considerations when hearing a request for an order to delay departure from the country – The court or the registrar of execution may issue an order to delay departure from the country if it is convinced, based on evidence that is apparently reliable, that there is indeed a reasonable fear that the defendant may leave the country for an extended period or permanently, and that this may hinder the conduct of the proceedings or the execution of the judgment.
If the respondent is a foreign resident, the order will be issued only in exceptional circumstances.
Appeal against a decision to delay departure from the country – The order to delay departure from the country is valid for one year from the date it was delivered to the person against whom the order was issued.
However, the parent against whom the order was issued is entitled to file an appeal with the court, in which he details the considerations for his appeal.
In principle, the person against whom the order was issued is prevented from leaving the country, but in certain circumstances the court allows him to travel abroad after posting bail.
Temporary seizure order
A temporary seizure order is intended to prevent and deter any act of property smuggling by one of the spouses, and to prevent the defendant spouse from receiving his share by concealing funds from the bank account, selling joint property, giving gifts to family members, making fictitious loans, and the like.
The conditions for obtaining the temporary seizure order – The seizure order can be requested from both the Family Court and the Rabbinical Court.
The key conditions are proof that the applicant for the seizure order will suffer serious harm in the circumstances in which the application for a seizure order is rejected, with the future harm being more severe than the harm to the other party if the seizure order is approved as a temporary relief.
Another condition is evidence of a high likelihood of the cause of action being established.
The third condition is proof that the request was made in good faith and not to harm the opposing party. The court may order that the person requesting the order post guarantees according to its discretion.
When is it recommended to request a temporary seizure order? – It is recommended to request the seizure order from the court, the bailiff, or the rabbinical court at the beginning of the proceedings and without the spouse’s knowledge, until the order is issued and registered with all relevant bodies.
The procedure for submitting an application for a temporary seizure order – The procedure for submitting an application for a temporary attachment order is the same as submitting an application relating to any other temporary relief.
However, there are circumstances in which a seizure order can be requested orally. It is important to emphasize that the law contains a list of assets exempt from seizure. The request can be submitted by one party only.
The court’s considerations when approving or rejecting the application for a temporary attachment order – The court will consider the request and evidence for the imposition of a temporary seizure order, the good faith of the person requesting the order, and the balance of damages and burden expected as a result of granting or rejecting the request.
If a seizure order is issued, the court notifies the holders of the respondent’s assets (such as the bank) of the imposition of the seizure, with the holder of the asset required to respond in writing whether the respondent’s assets are indeed in his possession, and whether the holder of the asset intends to request the cancellation of the order.
Request to cancel the temporary seizure order – A person who has been subject to a seizure order may submit a request to cancel the seizure or alternatively submit a request to convert the seizure. The request to cancel or convert the seizure must be submitted within 30 days of the date of issuance of the order, providing reasons for the request. The parties to the matter will be summoned to a hearing within a week of the date on which the request to cancel the order was submitted.
Protection order or restraining order
A protection order is intended to keep the violent spouse/father away. The order creates separation and distance between the violent party and the injured party. The court may require a bond from the violent party to ensure compliance with the order.
The order may include a variety of prohibitions, such as a ban on entering or approaching an apartment, a ban on carrying weapons, a ban on harassment, and more.
The conditions that allow for obtaining a restraining order – A protection order can be issued in a number of cases in which a person has resorted to physical or verbal violence and threats against his family members, or has committed a sexual offense against one of his family members, as well as in additional circumstances such as false imprisonment, ongoing mental abuse, or behavior that suggests that the person poses a tangible danger to his family members, and does not allow them to lead a reasonably normal life.
The procedure for submitting an application for a restraining order – The application for a protection order can be filed in the Magistrate’s Court or the Family Court.
The applicant must fill out a request form for a protection order in court, and on the same day the applicant is brought before the judge who determines unilaterally whether the circumstances warrant a restraining order or a protection order. This order is temporary and initial, and the judge sets a date for a hearing on the matter with both parties present, in order to allow the opposing party to defend itself.
The court’s considerations for deciding on the application – In circumstances of verbal or emotional violence that is not physical, the protection order will usually be granted after the violent party has failed to heed warnings that preceded the issuance of the order. The Family Court will grant the request as long as it was filed close to the violent event, and the judge is satisfied that there is a reasonable fear of violence against the injured party.
The protection order may be granted in the presence of only one party, provided that a hearing is held in the presence of both spouses within a period of one week from the date on which it is granted.
Appeal against a decision to grant a protection order – In accordance with the Domestic Violence Prevention Act of 1991, a decision regarding a protection order, issued in the Family Court or the Magistrate’s Court, may be appealed only in the District Court by a single judge. The protection order is issued for a period of up to three months, which may be extended from time to time up to a maximum period of one year.
Temporary restraining order
An injunction is a general expression that encompasses a variety of remedies whose main purpose is to prevent one of the parties from taking steps that may harm the integrity of the proceedings in which the parties are involved.
One of the most common restraining orders is a seizure order, which is intended to prohibit any change by one of the spouses regarding the joint property, both in circumstances where the property is registered in the names of both spouses and in circumstances where it is registered, including by way of transfer to a third party, loan, rental, gift or sale.
Other common restraining orders are a search and location order for objects (Anton Filler order), a removal order, an order to delay leaving the country, a freezing order concerning assets located abroad, and more.
The conditions for obtaining a restraining order – A temporary injunction is supposed to meet a number of conditions, such as a good cause of action, good faith and good faith, evidence that the harm from not granting the injunction may be greater than the harm that will be caused to the respondent if the temporary injunction is granted, and that there is no identity between the temporary injunction and the main remedy in the claim.
The procedure for filing a request for a temporary restraining order – The restraining order can be filed in the Family Court or the Rabbinical Court as an accompanying request to the main lawsuit.
Considerations regarding the approval or rejection of the request for a temporary restraining order – The more evidence the person requesting the order has, the better his chances of proving the necessity of the order.
In the circumstances of Divorce proceedingsEvidence such as tapes, photographs, letters, text messages, etc., may constitute significant reinforcement for approving the application of the sanction. The considerations that stand before the judges are good faith, the reliability of the evidence, the date the request was submitted, considerations of respect and the balance of convenience.
Ruling regarding an appeal against a temporary restraining order in divorce proceedings
A request was filed in the Family Court for a temporary restraining order regarding the conduct of joint bank accounts. The parties in the case had been married for nearly 26 years, during which time they had three children. children.
The man (the respondent) left the house in 2009 and filed for divorce in the Rabbinical Court. About six months later, the woman applied to the court for a restraining order regarding all joint bank accounts.
In a hearing held in the presence of both parties, the woman claimed that near the date of filing for divorce, the man withdrew about a million dollars from the account in which she was authorized to sign, leaving only about ten thousand dollars in it. According to the respondent, the funds in the account originated from Inherited which he received from his mother, and his wife’s signature rights on the account do not give her rights to his mother’s inheritance.
In this case, the man presented a contradictory version when, on the one hand, he presented the bank account as his personal one and, on the other, as joint property.
In addition, the withdrawal of approximately $1 million from the joint account was contrary to the principle of good faith. After hearing the man’s version, the court determined that the woman had indeed met the burden of proof, and ruled that there was room for an extension of the restraining order regarding the respondent’s actions in the joint account until the conclusion of the legal proceedings.
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