Couples who decide to divorce and wish to do so without wasting money on long and unnecessary legal proceedings will prefer to divorce by agreement and with minimal costs.
This is the safest and most recommended route to breaking up the family unit without unnecessary wars and without being dragged into long and expensive proceedings. The path to divorce by agreement is through signing a detailed agreement that will be drafted by a lawyer or mediator, and after signing it must be approved by the Family Court or the Rabbinical Court.
The spouses’ agreements should anticipate the future, and the agreement should anticipate any potential disputes and establish a mechanism for resolving them, without having to go to court.
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The test for a good divorce agreement is the test of the result. That is, whether the spouses’ agreements, which were signed within the framework of the agreement, stood the test and were implemented by them, without interpretive disputes and without the need to go to court for clarification proceedings, and most importantly – without mutual claims being filed in the future on the issues listed in the agreement.
Agreement on all important issues!
within Divorce Agreement Will include all issues related to the separation of the couple’s shared life. If the couple has children together, the agreement will regulate the issue Custody of the children.
The parties must agree on who the custodial parent will be and establish explicit and clear visitation arrangements, both for weekdays and Saturdays, holidays and school vacations.
Equally important, the agreement will include A special chapter dedicated to the topic of alimony., both of the children and sometimes of the woman as well.
The parties must determine the amount of alimony, the date of its payment, the method of payment, and until when or up to what age it will be paid.
This chapter will also include reference to the living expenses of the children and/or the wife, called maintenance, which are usually the responsibility of the husband.
When determining the amount of alimony and child support payments, it is advisable to also take into account the economic reality in Israel and the constraints of the labor market, and even to establish a mechanism for dealing with the consequences of financial difficulties that may arise in the future and affect the amount of alimony..
The couple must remember that their joint children have independent rights, which are not subject to the divorce agreement signed by the parents.
Therefore, in any case, in the future, the children are entitled or may file an independent child support claim, claiming that their rights were frozen by the divorce agreement and considering this matter a separate proceeding. Case No. 411/76, Minister vs. Minister.
It should be noted that recently the courts have significantly reduced this phenomenon, in the process High Court 4407/12, So-and-so vs. So-and-so From 2013, but the risk still exists and it is important to take it into account.
In any case, it should be emphasized that with regard to the divorce agreement, if one of the parties decides to waive in favor of his spouse a financial right that he is legally entitled to, he must write this explicitly in the agreement.
For example, if a woman waives her alimony and/or Her address, She must explicitly state this in the divorce agreement.
Another common case is when the parties waive their rights to the spouse’s pension to each other and each is satisfied with their own rights. Such a waiver must also be explicitly stated in the divorce agreement.
Another important chapter that any proper divorce agreement will include will discuss the subject Division of joint property.
This chapter should include a mapping of all of the spouses’ current assets, including, among other things, the shared residential apartment, joint funds or debts, if any, have been accumulated, as well as a mapping of all future financial rights, such as pension rights that have not yet been formed.
This is usually a particularly charged issue, and the parties, who in any case ended up in divorce due to personal differences, may be full of suspicion towards each other, For fear that assets will be smuggled And money from the joint property.
Therefore, strict adherence by the couple to transparent conduct and proper disclosure during negotiations will greatly assist in mediating disputes in general, as well as financial disputes in particular.
In order to allay suspicion, it is recommended that the parties give each other access to and examine for themselves the records of bank accounts, credit cards, pay slips, pension rights, insurance and savings. It should be remembered that this is information that will anyway be revealed in the framework of legal proceedings, and therefore it is recommended and more effective to disclose the documents already during negotiations – which will make it much easier to reach an agreement on this sensitive point and in general.
Lawyer, mediator or both?
In light of the multitude and complexity of the issues on which the couple must agree for the purpose of divorce, it is important to seek the assistance of a family law professional, a lawyer or mediator, who will be able to address all potential disputes and offer them appropriate solutions.
There are cases in which the couple agree on a joint lawyer for this purpose, who will help them conduct the negotiations prior to signing the agreement and will ultimately also draft the divorce agreement itself.
Typically, each spouse is represented by their own lawyer, who actively participates in the negotiations at all stages.
It is advisable for the couple to choose wisely who will represent them. It is important to get recommendations, meet and get an impression, make sure that the candidate for representation has a background and experience in family law, should not be too aggressive and it is definitely advisable that he be attentive and friendly. This is because the negotiation process is usually emotionally charged, and therefore it is advisable that the lawyer or mediator be calm and calm.
During the negotiations for the divorce agreement, the couple will meet with the lawyers and formulate agreements on the main issues listed above. The lawyers will write down the main points agreed upon between the parties.
Later, the lawyers will agree among themselves who will begin writing the agreement, and they will exchange drafts and amend the wording until they reach a final agreement that will be acceptable to the husband and wife.
Principles of negotiation for the consent of the parties
According to court rulings, Section 12 of the Contracts Law, General Part, 1973, applies to the negotiations, which requires the parties to act in an acceptable manner and in good faith.
Therefore, if either spouse behaves dishonestly and engages in any tricks, the agreement may be canceled retroactively.
In order for the divorce agreement to be legally valid, a signature is not enough and it must be approved by a judicial body. The relevant bodies are: Home Family Law and the Rabbinical Court, which has parallel judicial authority on this matter.
The divorce agreement will be submitted to the court as part of a request for approval of the agreement, and the parties will be summoned, usually within a few days, for a hearing before a judge.
During the hearing, the judge will examine the divorce agreement and inquire with the parties whether they understand what is written in it and whether they agree. The judges do not interfere with the content of the agreement, but they do tend to make it a little difficult for the parties, in order to diffuse explosive disputes, until they are satisfied that the parties have understood the implications of the agreement they signed.
For example, a judge may inquire with a woman who waives spousal support to which she is legally entitled, whether she understands the consequences of the waiver.
The parties must remain calm and answer the judge patiently and honestly about the sensitive questions, until it is clear to the judge that the signing of the divorce agreement was with the full and informed consent of both parties, and only then will he give the divorce agreement the validity of a judgment.
The court’s approval of the parties’ consent constitutes a final separation and dissolution of the marriage bond, with the exception of the divorce itself, the authority to regulate which lies solely with the Rabbinical Court.
Can conditions be changed despite agreement?
It is important to remember that even the most meticulous and detailed divorce agreement cannot predict everything that will happen in the future, as life is dynamic and full of surprises. In such cases, as well as in cases where each spouse interprets the divorce agreement differently, the default is to turn to a family court to decide the matter.
It is possible to try to prevent the need to go to court by including a mechanism for resolving future disputes within the framework of the spouses’ agreements. For example, a common mechanism included in divorce agreements is the parties’ prior consent, which in the event of a dispute Both will attend several mediation sessions. Before filing claims.
Divorces by mutual consent can also run aground, as stated, due to surprising circumstances that the divorce agreement did not foresee or due to an interpretative dispute between the parties regarding what is stated in the agreement.
The default in such a case is to contact the court or tribunal that approved the agreement and demand a remedy, whether by way of a request for clarification or enforcement of the agreement or by way of canceling the entire agreement or part of it.
Although a lawsuit can be filed, it is important to note that in practice and in practice it is very difficult to cancel a divorce agreement, and most lawsuits are rejected due to the judicial perception that settlement agreements, which have been given the force of a judgment, have a final nature that cannot easily be canceled.
See this procedure. CA 2495/95 Ben Lulu vs. Atrash Elias and others, and in particular for divorce agreements which are characterized by the fact that their parts are inseparable and that only some of the agreed obligations cannot be canceled without affecting the overall balance. Another example can be found in the procedure A.A. 690/88 Robin v. Robin.
However, the courts will agree to annul divorce agreements, in exceptional cases where it has been proven to them that it would be unjust and unreasonable to leave the agreement in effect.
In case law, in quite a few cases where a divorce agreement was annulled retroactively, after it was proven that the agreement was signed under circumstances of oppression, coercion, fraud, mistake, deception or mental infirmity, which are acceptable grounds for annulment under the Contract Law, which also governs this type of agreement. See for example High Court 6103/93 Levi v. The Great Rabbinical Court.
In order to convince the court, the party petitioning the court must clearly state the relief he is seeking and prove with evidence what special circumstances exist that justify his claim being successful.
Ultimately, it must be remembered that despite the hostility and suspicion, the real disagreements are not deep, and in such a case, divorce by mutual consent should be positively considered, in order to spare the expensive, lengthy, and emotionally exhausting legal proceedings, both for the couple and their children.
