A Divorce Agreement – Its Importance and Benefits
In this article we will explain in detail the concept of a “Divorce Agreement” (hereinafter: “the agreement”). This is an agreement that can significantly ease the management of the divorce process itself, and affect the relationship between the parties after the divorce.
It is well known that the divorce process is a costly price for the parties and often, the economic damage is unbearable. There is a solution that can ease this price for the parties and potentially save them tens of thousands of shekels.
Instead of each party paying for a lawyer to represent them in these expensive legal proceedings, a lawyer who is authorized as a mediator can create an agreement. The cost for the agreement is much cheaper and the price is split between both sides.
The Divorce Agreement shortens and eases the divorce process
Separation is difficult and painful for any couple, especially for those with children. Often, pain and frustration occur as a result of breaking up the family which can be accompanied by feelings of guilt or failure, regardless of which party is more to blame. In addition, in many cases, the parties feel alienated, distaste and even hatred towards the other, intensifying the difficulty of the situation. Amongst these emotions, the parties have a complex and complicated task – to sort out all the issues surrounding the divorce itself. When dealing with these issues in court, tensions rise often creating an explosive atmosphere, making it difficult for a respectful and fair separation on both a personal level and with regards to property.
What is a Divorce Agreement?
A Divorce Agreement is an agreement between the parties designed to regulate all issues that arise from the divorce itself. The parties have the option of raising any issue within the agreement that they wish to arrange between them following the divorce. The agreement, especially if done with the help of an expert lawyer authorized as a mediator, expedites and smoothens the management of the divorce proceedings. Israeli law recommends that the parties reach an agreement – Section 1 of the Family Disputes Litigation Law (Temporary Order) 2014.
The benefits of a divorce agreement
The agreement between the parties with the assistance of an Attorney Mediator has a number of advantages:
- An agreement helps to save the parties from the devastating effects of divorce, such as exploitation (resulting from issues surrounding a ‘Get’) distressing children and the lengthy and exhausting procedure.
- The resulting shorter divorce process, thanks to this agreement, reduces the economic costs involved in managing the procedure. Keep in mind that we are dealing with one household splitting into two, and that by drafting a Divorce Agreement, the process will be easier.
- Under Israeli law, Judges discussing family law have a very large discretion. This can lead to a lack of control from the parties over the process, and even undesired consequences. A Divorce Agreement is an agreement that is made voluntarily with the consent of the parties, ensuring each party receives some of its wishes and hopefully even more.
- The parties can stipulate on the laws and rulings in family law to reach an agreement, this flexibility has power to bring about an optimal agreement for them.
- Merging different issues that need regulation: compromises can be made Under the agreement, each party will be able to show some flexibility on one topic to gain on another. For example: A party who wants to improve the conditions for custody over the children can be more flexible with the property distribution in order to gain this. The merger principle allows the parties to reach the maximum results on the issues that matter to them.
- The rulings in Israel state that a agreement is made as one document and can’t be separated, due to the understanding that various issues overlap (Avraham Menashe v. Rivka Menashe). By doing so, we can take away the concern of the parties, that in a particular area one of the parties has gained more, as all areas are looked at together, as the agreement is one document.
The issues contained within the Divorce Agreement
In an agreement, the parties can include any issues they wish to settle. Here are some of the key issues that are generally included in a agreement:
- Child custody
- Spending time with the children
- Child support
- Property distribution between the parties
- Distribution of social rights (pensions, child allowances)
- Distribution of previous debts (mortgage and other debts)
The parties must establish ways to implement the terms of the agreement, starting when the divorce occurs. This will ensure the needs of the Agreement are met. Hence, it is strongly advised to make the agreement together with an Attorney Mediator.
What will not be included in a Divorce Agreement?
An agreement will not include the following:
- Penalties / sanctions in the divorce chapter. The husband must give the divorce willingly and freely. Jewish law states that a non-consensual divorce of a husband is called a “forged divorce,” and would result in the divorce not taking place, and the wife still being deemed married.
This won’t prevent the parties from making a conditional agreement, which will deal with other issues apart from the ‘Get’ itself.
- In general, the agreement only benefits the parties that made it. It does not bind /infringe the rights of a third party other than those getting a divorce. However, there are certain exceptions in Israeli law that can apply to a third party.
How to approve a Divorce Agreement?
An agreement must be approved beforehand, giving it the validity of a judgment from one of the following courts:
- Family court
- Religious court (depends on religion of the parties)
Can the courts intervene in the content of a Divorce Agreement?
The judicial courts have full discretion in deciding whether to intervene in the content of the agreement. However, in general, the courts tend not to do so.
Once the application for the approval of a agreement has been submitted to the court, a hearing will be organized. The Court will place importance on the following points:
- The Court will check with the parties that they fully understand the contents of the agreement, and that their signature was made voluntarily – Section 2 (b) of the Prenuptial Relations Law, 1973
- Clauses in the agreement concerning the couple’s children (support, time to see them, etc.) will receive a deeper examination. The court will check that the child’s best interests are in accordance with the terms of the agreement – section 24 of the Legal competence and Guardianship Law, 1962
In summary: The court has the authority to amend/remove clauses in the Divorce Agreement, but tends not to do so. It is important that the agreement is negotiated with an Attorney Mediator, which will help the parties reach a good agreement, which will be fully approved for all clauses.
Interested in drafting a Divorce Agreement? COHEN, DECKER, PEX & BROSH LAW-FIRM ARE HERE AT YOUR SERVICE
At the Cohen, Decker, Pex & Brosh’s Law Offices we have attorneys qualified as mediators, who can provide you with mediation services for a Divorce Agreement. They can assist in drafting an effective and comprehensive Divorce Agreement, that will ensure the divorce process will be cheaper, quicker and calm.