Divorce is often accompanied by difficult emotions that may negatively affect how the breakup is handled, the ability of the parties to get on with life and to separate peacefully, and, of course, the well-being of the children.
Every break in the family unavoidably affects the children. However, research shows that children have difficulty building healthy romantic relationships and building trust if they have been exposed to a long divorce process full of arguments and legal strife.
Many couples are unable to reach an agreement, even with the help of a lawyer, regarding the amount of maintenance—either spousal maintenance or child support.
CHILD SUPPORT AGREEMENT
As mentioned above, there are two types of maintenance anchored in the
Family Law Amendment (Maintenance) Law, 5719–1959:
• Alimony, or spousal maintenance: According to the religious Hebrew law, which is referred to in the Israeli law in certain cases—this is the right of a married Jewish woman to receive money from her ex-husband for the expenses that she needs for her living, as she did when they were married.
• Child maintenance, or child support: This maintenance is based on the personal law when it is the Hebrew law, but the case law in Israel has traditionally also regarded it a civil obligation. Child support is the right of the child, not the parent, and it cannot be waived even in a legal agreement, except in rare cases.
The obligation to pay for child maintenance has changed, over the years, in the Israeli case law. While, in the past, the obligation to pay was the father’s, with no consideration of the financial and salary gaps between the spouses, today the case law does consider these differences.
Part of the payment is related to necessities such as food, clothing, education, and health expenses, while other payments are defined as “charity” and include extras such as extra-curricular activities and vacations.
Child support in the Hebrew law is generally divided into three categories:
• Up to the age of 6, the father is obligated to pay for both necessary and charitable child support.
• Between the ages of 6 and 15, the father is only obligated to pay for his children’s necessities.
• Between the ages of 15 and 18, the father is only obligated to pay “charity” to his children.
If the child is serving in the Israel Defense Force (IDF) or Israeli national service, it is common practice to continue supporting them until the age of 21.
The non-custodial parent is the one who must pay child support. Today it is becoming ever more common that, when both parents have custody over the children and there is no significant salary gap between them, the father is not automatically obligated to pay for child support as was common in the past, or else the father is required to pay a much lower amount of child support. This is backed by the new policy of the Israeli Supreme Court.
When the parents are not able to reach an agreement regarding child support, they may turn to court. When the parents come to an agreement, the agreement must receive the approval of the family affairs court or the rabbinical court (the Jewish religious court) for it to receive the binding legal status of a court ruling.
Another option is to sign a maintenance agreement, which is sometimes reached through mediation and sometimes between the parties (usually with the aid of a lawyer).
A maintenance agreement is the preferred option for the couple, since it allows them to reach agreements independently of an external court that will make decisions for them regarding the amount of support.
FINANCIAL MAINTENANCE AGREEMENT
Firstly, what is a financial relations agreement? It is a legal agreement that is signed before or during marriage, or sometime during the spouses’ shared life together. The agreement distinguishes between the separate assets of the spouses before marriage and between their shared assets when the marriage ends. In the case of a divorce, each spouse will get back the property that belonged to them before the marriage, and the assets that they acquired when they were married will be equally divided between them.
The Financial Relationships Between Spouses Law, 5733–1973 provides a legal definition of the shared property presumption that was established following the Israeli case law. The law defines that all property acquired by the spouses during their marriage belongs to both of them and shall be divided between them equally in a resource balancing arrangement. However, assets or money for which another arrangement applies under a financial or divorce agreement that received the status of a binding court ruling will not be distributed equally, and neither will inherited property or a gift that were received during the marriage period.
The agreement must be a written prenuptial agreement and must be approved by an authorized person—namely, a notary public or marriage registrar—who ensures that the parties agree to and understand the terms. According to Section 2(a) of the Financial Relationships Between Spouses Law, the agreement will not be valid without this authorized approval. If the agreement is postnuptial, the body authorized to approve it becomes the family affairs court or the rabbinical court.
This makes a financial agreement different from other contracts, which do not require authorized approval and are automatically valid as soon as they are signed. A valid financial agreement has the status of a court ruling. This means that, if any of the parties violates the agreement, the other party has the right to file a claim with one of the Execution Office’s branches, request the freezing of assets, obtain a stay of exit order, and have other sanctions carried out.
The question arises as to whether it is at all possible to include children, in general, and child support, in particular, in a prenuptial agreement.
A financial agreement cannot be used to limit custody, maintenance, or other rights of the children. The Israeli law and case law stipulate that the benefit of the child is the determining consideration in any divorce issue that relates to the child, including maintenance. Also, it is impossible to know in advance what the benefit of the child will be; the child’s benefit is determined when the parents separate. The issues that cannot be agreed upon in advance are, among other issues, custody and maintenance.
However, in a financial relations agreement, there are several ways that may be agreed upon which may also affect the future assets of the children and even the maintenance after the parents’ separation and may prevent arguments before they come up. We will now discuss these:
• Children from a previous marriage: The spouses may agree in advance that the children of one of them from a previous marriage will receive part of the inheritance.
• Agreed division of assets: The spouses may agree in advance how to divide the assets in the case of a separation. That way, if one of the spouses has high financial abilities, that spouse will not be negatively affected by a separation. This may help prevent potential losses in the inheritance.
• Child maintenance: As stated above, it is impossible to determine the amount of maintenance in advance, but it is possible to decide upon a minimal sum for which a guarantee will be deposited. For example, declarations regarding how to raise the children, as well as when and how much to spend on non-basic needs. However, the court before which the issue will be brought in the future will be authorized to decide—based on the benefit of the child, which is taken into much greater consideration than the divorce agreement—that such an agreement of intent may definitely be effective.
It is important to know that, while a financial agreement requires approval in the presence of both spouses at court, a maintenance agreement does not, and is, in fact, valid from the moment that it is signed by the parties.
THE VALIDITY OF A FINANCIAL AGREEMENT
You should know that the courts in Israel have recently expanded the shared property presumption, since a spouse who has come into the marriage with a large amount of money is often forced to share it, even if it was acquired solely by them—such as an apartment that was either inherited by the spouse or purchased by them with their hard-earned money and which they used for their own residence or rented out. Therefore, a spouse who decides to share their life with the other spouse should sign a financial agreement with them.
APPROVAL OF A MAINTENANCE AGREEMENT
As stated above, a maintenance agreement that is signed by both parties must be approved by the court if it is to be legally valid.
Until the agreement is approved by the court, it only binds the spouses in accordance with the Israeli contract law, and does not bind the minor child. Consequently, the mother may claim maintenance in the name of the child despite a singed agreement that states otherwise, and that is why it is important to have the agreement approved at court and given the status of a court ruling.
That is what the Supreme Court ruled, for example, in September 2016 when the 14-year-old daughter of a divorced husband filed a claim for child support despite the fact that the mother waived the maintenance in a signed divorce agreement. The court accepted an appeal against the rulings of a previous court (Family Appeal Request no. 3984-15).
Judge Elyakim Rubinstein states in his ruling that the whole case raises a “feeling of injustice” that requires intervention. He clarified that, according to the Israeli case law, an agreement between parents regarding child support does not bind the minor child if there was no separate hearing discussing the child, or if the agreement clearly and significantly discriminates the child.
Judge Rubinstein explains that the benefit of the child comes first, even before the agreements between the parents, and definitely regarding rights that belong to the child and to neither of the parents, such as the right to receive child support. Therefore, the mother has no right to waive these rights in the name of the child.
Judge Rubinstein further states that the agreement in this case is special because the mother waived child support with the purpose of maintaining a relationship between her daughter and the daughter’s father. The parents signed an agreement according to which the father would meet regularly with his daughter and also make deposits into a savings account in her name; however, he did not do so, and the agreement was not abided. According to judge Rubinstein, if the father would have abided by the agreement, the daughter would have no grounds for an independent claim. However, it was decided that, since the father did not fulfill his contractual obligation to meet with his daughter, this constitutes a basic change of circumstances that justifies reexamining the issue of child maintenance; therefore, the appeal must be accepted.
Judges Meni Mazuz and Neal Hendel agreed to this decision, but for other reasons. According to them, when the parents agreed to waive child support, the needs of the daughter and the parents’ financial abilities were not taken into consideration. Therefore, the daughter’s rights were completely discriminated against by both parents and the agreement does not bind her, nor does it prevent her from independently claiming child support from her father. The judges emphasized that the daughter was left with no relationship with her father and with no child support payments, but only “a bitter disappointment”.
Formally, the family affairs court did not “hear and rule” the minor daughter’s case when approving the agreement that was signed in her name. This rule is essential in determining the outcome… There was no real court discussion on the issue at hand, and the daughter’s needs were not examined. The court itself provided this response, which refers to the court’s own treatment of the case. It was further decided that this is a case in which the rights of the claimant were completely discriminated against. In these circumstances, the conclusion that the court reaches has greater impact, wrote judge Hendel.
The appeal was eventually accepted: the ruling of the family affairs court was restored, and it was decided that the daughter had the right to file an independent claim for child support from her father and that the court hearing the case would decide upon the amount of support. The court also ruled that the father would to pay court expenses in the amount of 25,000 ILS.
Divorce is a financially and personally complex situation, and it is important to deal with it properly and respectfully—if not for yourselves, at least for your children. To go through the process in the best possible manner, which will, on the one hand, protect your rights and, on the other hand, prevent highly emotional legal hearings and expenses that may harm those dearest to you, you should seek the aid of a family lawyer who is sensitive and knows how to steer you to safety.
Our firm specializes in family law and has a host of professional lawyers with years of experience behind them, especially in the area of maintenance agreements, who will be glad to advise you and answer any questions that you may have. With the aim of obtaining the best result for you, we highly recommend that you contact a lawyer who specializes in the matter—together we will create an action plan in which you will receive the assistance and guidance that you need, recommendations, and professional legal representation.
You are welcome to contact us at: 055-9826594 or via the chat on our website.
legal agreement, except in rare cases.