What is a Divorce Agreement?

A divorce agreement is a contract drawn up between spouses to settle all issues arising from their divorce. The parties have the opportunity to include any topic into the agreement that they wish to regulate for their lives after the divorce. This agreement, especially if made with the help of a lawyer and a divorce mediator, speeds up and streamlines the divorce process. Israeli law recommends that parties reach an agreement – Section 1 of the Family Dispute Settlement Law (Temporary Provision), 2014.

The Importance and Advantages of a Divorce Agreement

Why is it advisable to draft a divorce contract?

Separation is difficult and painful for all divorcing couples, especially for families with children. The pain and frustration resulting from the breakup of the home are accompanied by feelings of guilt and failure, regardless of which party initiated the separation. Additionally, in many cases, the parties feel alienation, aversion, and even hatred towards each other, which intensifies their hardships.

Amid these emotionally-challenging moments, the parties face a complex and complicated task – to settle all matters arising from the divorce.

A divorce agreement can significantly ease the divorce process itself and impact the relationship between the parties after the divorce.

It is known that the divorce process takes a heavy toll on the parties. Often, court proceedings are accompanied by a combative and unpleasant atmosphere and can result in severe financial harm. Thus, drafting an agreement can be a solution that eases the parties’ burden and saves them tens of thousands of shekels.

The agreement includes relevant issues for the separation and divorce, providing certainty for both parties since everything is written and clear.

Moreover, instead of each party paying for a lawyer to represent them in expensive legal proceedings, they can turn to a lawyer and divorce mediator who can draft a divorce agreement. The cost of drafting the agreement is much lower than the costs of lengthy and exhausting legal proceedings, and the amount is split between the two parties.

Advantages of a Divorce Agreement

A divorce agreement drafted with the help of a lawyer mediator has several advantages:

• A divorce agreement helps save the parties from the destructive effects of divorce, such as mutual denigration, greater harm to children, and the management of a long and exhausting legal process.
• Shortening the divorce process due to the agreement reduces the financial costs associated with managing the process. We must recall that the divorce deals with a household about to divide itself, and the divorce procedure will save both sides significant amounts of money.
• By virtue of Israeli law, judges who deal with family law have very broad discretion. This can lead to a lack of control for the parties over the process and even to difficult and undesirable outcomes. A divorce agreement is an agreement made willingly and with the consent of the parties, ensuring that each party receives part of their desires and even more.
• The parties can stipulate contrary to the law and rulings in family law to reach an agreement. In other words, flexibility is allowed, which can lead to an optimal agreement for them.
• Merging various issues that need to be resolved. Within the agreement, each party can make concessions to the other on one issue to gain advantages on another. For example, a party who wants better terms regarding the time spent with the children can compromise on property division to achieve that. The principle of merging allows the parties to achieve the best possible outcomes on the matters most important to them.
• The Israeli case law establishes that a divorce agreement is made as an indivisible whole. This is due to the understanding that the various issues are interconnected (CA 105/83 Avraham Menashe v. Rivka Menashe, 38(4) 635 (1985)). This removes the concern of one party that a particular issue in which they benefited more will be separated from the rest of the agreement and later reopened and annulled under Section 7(c) of the Contracts Law (Remedies for Breach of Contract), 1970.

Issues Included in a Divorce Agreement

Unlike a property agreement (which only deals with assets), an agreement can include any topic the parties wish to settle. However, several essential issues generally arise in every agreement:

• Child Custody and Visitation Arrangements (if not joint custody)
• Child Support
• Division of Assets
• Division of Social Rights (pensions, child allowances)
• Division of Debts (mortgages and other debts)

The parties must establish implementation mechanisms for the agreement for life after the divorce, detailing how to carry out the various agreements reached. This highlights the importance of drafting the agreement with a lawyer and a divorce mediator. The lawyer can guide the parties to draft a comprehensive and complete agreement that will be effectively implemented after the divorce.

What Not to Include in a Divorce Agreement?

A divorce agreement should not include the following:

• Fines/Sanctions in the Get (Jewish divorce) section. The husband must give the get willingly and freely. Jewish law states that a get given by the husband under coercion is called a “forced get” and is rendered invalid, and the woman remains married.

*** This does not prevent the parties from including conditions in the agreement to address breaches of the agreement on other matters aside from the get section. ***

• As a rule, the agreement is binding only on the parties who made it. It does not obligate or affect the rights of a third party who is not a party to the agreement. However, there are certain exceptions in Israeli law that do impose obligations on a third party who is not a party to the divorce agreement.

Divorce Proceedings in the Rabbinical Court

The divorce process between spouses begins with opening a file in the Rabbinical Court. The hearings in the Rabbinical Court are held behind closed doors and are not open to the public.

The Rabbinical Court has exclusive jurisdiction over divorce matters. However, it has concurrent jurisdiction with the Family Court over issues such as spousal support, asset division, custody, and visitation arrangements. Generally, child support is handled by the Family Court, unless both parties agree for the Rabbinical Court to handle it.

Even after opening a file in the Rabbinical Court, if the spouses reach mutual agreements independently or with the help of a mediator, they can submit a joint divorce application along with the divorce agreement. If the agreement has already been approved by the Family Court, it will be attached to the divorce application in the Rabbinical Court. If it has not yet been approved, it will be submitted with the divorce application for the Rabbinical Court to review and approve it, giving it the status of a court ruling.

How to Approve a Divorce Agreement?

A divorce agreement must be approved by one of the following courts to give it the status of a court ruling:

• Family Court
• Rabbinical Court

• Exception: If a lawsuit related to the dispute has been filed in a particular court, the request to approve the divorce agreement will be directed to that court (provided the case is still open in that court).

Can Courts Intervene in the Content of the Agreement?

Courts have full discretion to decide whether to intervene in the content of the agreement. However, generally, courts tend not to interfere with the content of a divorce agreement.

After submitting the request to approve the divorce agreement to the court or the Family Court, a hearing will be scheduled. During the hearing, the court will go over each section of the agreement with the parties. Emphasis will be placed on the following points:

• The court will ensure that the parties fully understand the content of the divorce agreement and that their signatures were made voluntarily, as per Section 2(b) of the Financial Relations Between Spouses Law, 1973.
• Sections of the divorce agreement related to the couple’s children (child support, visitation arrangements, etc.) will be examined more thoroughly. The court will ensure that the best interests of the child are considered in the agreement, as per Section 24 of the Legal Capacity and Guardianship Law, 1962.

Important Note: For Jewish couples, the Rabbinical Court has exclusive jurisdiction over all matters related to the get and ketubah, as per Section 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953. If one of the spouses is not Jewish, the jurisdiction to dissolve the marriage lies with the Family Court.

Interested in Drafting a Divorce Agreement?

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Looking for a mediation lawyer in Tel Aviv? Our office has lawyers who are also certified mediators, ready to assist you with mediation services for drafting a divorce agreement and subsequently preparing a comprehensive, complete, and effective agreement to help you conclude the divorce process economically, respectfully, and quickly.