Lawyers
Separation prior to divorce and its legal significance
One of the two ways in which a marriage may end is through death of one of the spouses or through divorce. Sometimes, however, separating spouses leads to divorce without going through the formal and lengthy divorce procedure. There is no doubt that the legal consequences of a relative divorce are clear and well known. However, a separation (temporary or not) may also have significant legal implications for the entire process.
This section summarizes the main issues that arise during the separation of spouses prior to divorce.
By Igal Mor, Adv. & Notary
Accuracy in Legal Advice. Excellence in legal support.
Is it right for a woman to leave the house before the divorce is finalized?
Does it make sense for a man to leave the house before a divorce is finalized?
Does it make sense to leave the house with the children before the divorce is finalized?
When a couple divorces, who leaves the family home?
Is it possible to save a marriage by separating before divorce? How does this step affect the law and halacha?
When considering whether to leave the house before divorce, what considerations should be taken into account?
In the event that a couple decides to separate, there are two possible explanations: either the couple is at a stage of the divorce process and the separation status is actually a sort of interim status until the final procedure is carried out.
In addition, it is possible to gain a perspective on the marriage independent of your spouse’s perspective. In the event that you have determined that the marriage cannot be repaired and that you intend to divorce, the steps you take during the interim period may have real legal consequences that will influence the final divorce agreement.
While a separation from one’s spouse does not constitute divorce according to religion and law, many of the issues that arise during a divorce procedure also arise in a separation.
Financial arrangement
Most couples who live together manage their household together as well as their joint bank account. Moreover, both spouses benefit from the assets of the other. As a result of a divorce between two estranged spouses, the court will demand the division of assets between them and make various payments that will balance the assets of both spouses based on the assumption that they jointly own them.
If the spouses have not yet divorced, managing the joint account and expenses becomes more complicated because on one hand, they are no longer living together, while on the other hand, they are jointly responsible for the costs of raising the children. This implies that the financial issue, and in particular the joint account issue, is a stumbling block that should be resolved during the separation period.
The question of raising children
It is not uncommon for one of the spouses to decide, or be forced, to leave the house after the separation. At this point, the issue of custody of the children is raised for the first time. After the divorce judgment is issued, the court will determine visitation arrangements and custody issues, however, during the separation phase, the couple must decide how they wish to divide custody and this without the involvement of a third party.
The question of the shared residence
Whenever spouses appear before the Rabbinical Court or Family Court, the judicial tribunal aims to balance the status of all the assets held by each spouse in order to comply with the law of sharing. Assuming that a couple running a joint household shares all assets, without any reference to one spouse in particular. This rule still applies. Even if one of them is responsible for supporting the family while the other is responsible for raising the children, this rule still applies.
Nevertheless, when spouses separate and one of them leaves the house, this change is not decided by the courts and can result in drastic changes for the spouses and the children as not only does the spouse depart the shared home but he also distances himself from the children. This change is not decided by the court, however, when spouses separate and one leaves the house, and this can entail drastic changes for the spouses and their children since not only does the spouse leave the shared house and his life changes, he also distances himself from the children.
Another legal aspect concerns the matter of alimony. According to Jewish law, even if there is a separation of powers (caused by the husband), he is obligated to pay spousal support and a specific section for his wife if a lawsuit is filed in this matter or out of choice. However, if the wife leaves the house for a reason that is not justified halachically, the rabbinical court may deny the wife alimony and even the ketubah.
You should consider extensive legal considerations when making decisions regarding the shared residence if this is the case. Firstly, you should be aware that leaving the apartment at the time of separation does not affect ownership rights. Accordingly, if the apartment is owned by both spouses (whether registered in the tabu or under the rule of sharing), one of them leaving the apartment does not affect its ownership. Accordingly, the issue of the rights to the apartment must be separated from the other financial implications that may arise if one of the spouses leaves the home.
New relationships may be formed as a result of living apart. It may, however, be problematic since the court may view this as the creation of a “rebellious spouse”, i.e., one who rebels against the marital relationship, and this could have different implications for alimony distribution and payment that will be determined by the Rabbinical Court.
It is important to note that leaving home changes the family status quo, and may be a significant matter that will be used against you by your spouse.
If the residential apartment is jointly owned by the spouses, one cannot force the other to leave. In this case, it is recommended to reach agreement between the spouses regarding the departure process if separation of powers has been decided to be preferable. The owner of the apartment can file a lawsuit to evict the tenant if the apartment is owned by a third party, such as the parent of one of the spouses. The fact remains, however, that this is an extremely aggressive step that exacerbates the legal conflict between the divorcing couple and the families as a whole.
"...אין חולק שהבעל הוא שפתח את תיק הגירושין ותבע להתגרש. הבעל אף הצהיר בפרוטוקול הדיון שהוא עזב את דירת מגורי הצדדים. אמנם אף האישה הצהירה בדיונים שאין מנוס מגירושין, אך מעשים אלו של הבעל (פתיחת התיק ועזיבת הדירה המשותפת), יוצרים מציאות עובדתית, שהגירושין הינם בעטיו של הבעל, ואם כן, האישה זכאית לכתובה, אלא אם, יוכיח הבעל את טענותיו שהאישה הפסידה את זכאותה לכתובה ולתוספת כתובה." The third claim is that the woman 'threw' him out of the house. However, even according to his claim, it is clear that she did not take any practical action to force him to leave, as he states in the minutes: "She begged me to leave the room and then she begged me to leave the house." The woman further stated that all of this followed his notification to her that he desired a divorce, as she wrote in her affidavit: "I told him that I cannot sleep with a man who wishes to leave me." According to many opinions, the wife acted correctly when she separated their beds in this situation when the husband had already decided to divorce... The wife also asserts that he began grazing in other fields before the separation, a claim that the husband did not explicitly deny. As a result, his decision to leave the house should be viewed as his own, and the reason for his departure is usually that he had his eyes on another venture. Accordingly, it is not appropriate to accept his claim that the wife threw him out of the house and to file a civil suit against her for losing her address.
Separation agreement
In light of the complexity of the separation issue, which has many implications for a divorce proceeding, we suggest that this should be handled by the spouses in accordance with a separation agreement, which expresses agreements between the separated spouses regarding how the household will be managed and living separately, the obligations that will be shared at the time of separation, as much as possible, and if such agreements cannot be reached, a divorce lawyer specializing in divorce should be consulted beforehand in order to make an informed decision.
