The Jerusalem Post - The Jerusalem Post Magazine
Divorce discrimination • By YONAH JEREMY BOB
Both men and women share rough personal stories of being done wrong by the court system
Support groups for fathers and mothers agree on little when it comes to court litigation relating to divorce, alimony and child custody issues. Maybe the one thing they agree on is that each side feels discriminated against both in their individual cases and in how the system is set up. How does a system get so broken that it can discriminate against men and women at the same time?
First, there is no way around the fact that divorce and the breakdown of a family structure are usually going to have some amount of messiness and carry costs to those involved and to society. Beyond that, however, it appears that there are two major problems that exacerbate the issue in Israel. One is the courts themselves, and the second is the broken dynamics that have
plagued attempts at reform in the Knesset.
FOR “SHIMON” (his real name is confidential due to the sensitivity of the issue), his main complaints about the court system are the imbalance on alimony-economic issues, the default advantage to women in young child custody battles, inconsistent rulings between different regional family courts and presumptions that fathers are lousy parents.
Discussing the issues with the Magazine, he asked why, if there was no explicit evidence against a specific father, a father “must prove that he is a good dad… instead of just focusing on the best interests of the child.”
Asserting, “For a father to get even time” with his kids, “he must do a lot,” he complained that due to unsubstantiated claims against him by his ex-wife, he had to endure psychological reviews (which eventually declared him a fit parent). Shimon said that his experience is common and that family courts should shift to only requiring psychological reviews for fathers with criminal records or with other clearly objective suspicions against him.
“Simply getting divorced should not make someone a suspect,” he said.
Regarding the actual execution of his divorce in the rabbinical courts, he had little to say. However, his experience was that most of the key issues for him regarding alimony and child custody were decided in the family courts. Initially in December 2017, he said that the family court gave temporary custody overwhelmingly to his wife simply because the default under current laws for families with children under the age of six is to give primary custody to the mother. With no initial basis to favor Shimon or his ex-wife beyond that default rule, the court simply “went based on the default law,” granting his wife custody for 11 out of every 14 days and giving him only three days. Exasperated, he stated, “That makes you more of an uncle that visits a bit than a father.” Commenting based on his and other men’s experiences, he said that psychological reviews can get drawn out for years and really wear down a father. Later, he was given almost equal custody – six days out of 14 compared to his wife’s eight days. But he said the overall “situation was absurd” because he was having to pay NIS 2,600 in alimony per month in addition to close to equal costs of child care.
Shimon said he would have understood having to pay substantial alimony if it was a penalty of sorts for not wanting more than limited custody, and if the alimony in some ways reimbursed the mother for being stuck with the vast majority of the child care. Also, he might have understood a court order for substantial alimony if he had a much larger income and his exwife, by agreement of the couple, had mostly been an at-home mom. But in their situation, where everything was mostly equal, including that he and his wife had nearly equal incomes, he asked why was he ordered to pay such substantial alimony.
The only aspect that limited this unfairness was that he would not have to continue to pay the alimony after his child reached age six. On the other hand, he said that the only reason the alimony was limited came back to the structural imbalance in which mothers had an advantage over fathers regarding custody and alimony until their children reached age six.
Why did he accept the court’s offer of six days of custody in a two-week period, plus substantial alimony? “If a judge offers you something almost equal, you for sure say yes… If not, you have to do more tests,” he explained. Certainly there was no point, he said, in trying to press the judge about why the proposal was not an even seven days and seven days between the parents. Regarding inconsistency in the courts, Shimon said he knew of much worse cases than his in districts like
Jerusalem and others. One reason, he said, that his final custody arrangement was only a bit discriminatory was that the Tel Aviv family courts have a reputation for being fairer to fathers. Yet he noted that courts in other districts routinely gave fathers no more than 25% custody of their children even if all objective evaluations of the parents were equal.
Another way he said he was luckier than many fathers he knows was that he had ample counter-proof in writing to disprove his wife’s vague and general characterizations of him as an incompetent parent. Shimon said his wife had sent him text messages when their child was sick asking him how to deal with certain situations and saying she was not sure what to do. He was the one who had known how to care for their sick child.
He advocates ending any default favoritism toward mothers and for new rules that are focused solely on “the best interests of the child” in deciding custody issues. Still, he said he expected the Knesset to eventually reach a compromise in which mothers maintain an advantage in child custody disputes for younger children, but where the advantage is reduced from an age six cutoff to age two.
That is from the point of view of the fathers.
MOTHERS HAVE encountered a whole different set of individual and structural discrimination issues.
“Elana” (her real name is also being kept confidential) told the Magazine that the source of many of the problems she and other mothers face is the connection between the process of obtaining a get ( Jewish divorce), on one side, and child custody and alimony issues on the other side. Over the years, most women have said that the rabbinical courts discriminated against them in favor of men. They have asserted that the rabbinical courts often allowed men to hold back their consent to divorce their wives in order to extort the women into agreeing to unfair overall terms.
Although general progress has been made over the years both in terms of the family courts taking over more powers from the rabbinical courts and with the High Court of Justice ordering specific reforms in the rabbinical courts, Elana said discrimination persists. In her case, she said that the rabbinical courts have allowed her husband to indefinitely harass her. She said that four times, including earlier this month, her ex-husband sued to eliminate his alimony obligations to her based on the argument that she violated a commitment to bring up one of their children under haredi laws and customs.
What is most bizarre about this claim, she stresses, is that her ex-husband has almost never paid his alimony obligations since he was ordered to by the family courts in 2010 – and even currently is not paying. She said he currently is around NIS 200,000 in arrears. In other words, he is taking her to court not to relieve himself from having to pay, but just to gain a podium to berate her.
According to Elana, the rabbinical courts allow this because they not only favor men, but also favor haredi and religious persons over secular persons. She said the system is “so pitted against women... a man can do that and he has that power even with no real leg to stand on… He should be taken to court for contempt charges… for not paying alimony… Instead, I am being dragged into court.”
While she remained religious for many years after she divorced her haredi ex-husband, at some point she became more secular. Some of this was a natural process that also occurred as her children got older and some of them reached the age where they decided they preferred to attend secular schools and move in that direction. As long as the children were younger, she said that she had tried to keep them on a religious path as agreed with her ex-husband. Yet at a certain age, parents must step back and respect their older children’s decisions, she contended.
It was preposterous for her ex-husband to sue her for not trying to force her older children to remain like him, she said. Incidentally, some of their children did remain haredi so it does appear that different children chose different paths on their own. In any case, even if she had violated the religious upbringing aspects of the agreement, there are High Court rulings preventing the rabbinical courts from using
such issues to invalidate alimony and other issues.
If that is true and the rabbinical courts know that they cannot even give relief to Elana’s ex-husband, then why do they bother hearing his arguments – which are reruns of three earlier rounds? According to Elana, this proves the system incorporates structural discrimination and that the rabbinical courts are only holding hearings to allow her ex-husband to harass her.
How has her husband managed not to pay? Just like many men who withhold a divorce as leverage to get their wives to sign onto other unfavorable terms, she said he pulled the same trick. She said he forced her to sign an agreement that made it exceedingly difficult to collect alimony even as he remained technically obligated. To get him to agree to a divorce, Elana said she had to agree that none of the powerful coercive measures that family courts can use would be used on him. This meant she agreed that any arrears would only be collectible through the standard bailiff’s court process, which is more limited in enforcement.
In practice, this meant that the only way she could compel her ex-husband to pay was to imprison him in debtor’s detention. This was not something she ever wanted to do as it meant appearing ruthless to their children. Over the eight years and the large debts, she did get him arrested four times when she was in dire economic need, but the NIS 200,000 still in arrears makes it clear that she mostly was left unable to collect.
Next, she discussed the idea that women feel that the rabbinical courts discriminate against them and the strategy of transferring power to what they view as the fairer family courts. Elana said that there are even holes in this approach. Although in general terms she agreed she was better off in the family courts than in the rabbinical courts, she said her family court judge barely gave her the time of day.
She said the 50/50 child custody arrangement the family court ordered was unfair since, in practice, her ex-husband pays no alimony. Also, she pointed out that at the time the court issued its order, her husband was the only one working and she had no salary. Moreover, there were a number of issues with her husband’s parenting, some documented by a psychologist, but that “because he isn’t completely crazy” the judge was not interested.
Essentially, she said family courts deal with such horrible and bizarre cases that courts impose 50/50 arrangements simply because they do not have the “head space” to sort through cases where the mother just puts much more time and effort into parenting than the father. Additionally, she said that when the couple first separated and her husband refused to leave the house (and was refusing to grant her a divorce), she was greatly disadvantaged by the court system for several months regarding custody of her children. This related to her initial act of leaving the house as she was seeking the divorce and he refused to leave. A closer look at the circumstances would have spared her months of separation from her children, but the courts did not look into the case’s details for an extended period because of the backlog of other cases it was dealing with.
This is what women say is wrong with the system at the court level.
HOW DO the system and attempts at reform look at the Knesset level?
In January, the Knesset’s joint committee relating to education and social welfare issues passed the first reading of a range of contradictory bills dealing with the issue of child custody. On one end are Social Equality Minister Gila Gamliel and Likud MK Yoav Kisch, who are pushing for either completely eliminating the legal advantage for women regarding custody of children under age six or for reducing the advantage to age two. In the middle is Bayit Yehudi MK Shuli Moalem-Refaeli, who seeks only a reduction to age four, but might accept age three or two if she feels politically cornered. Non-political experts from the Social Welfare Ministry have recommended a cutoff age of three.
Finally, women’s groups advocate no change to the age six cutoff. Alternatively, they recommend only changing the child custody to women default rule after reforms they seek are enacted to make the system less stacked against women regarding the issue of divorce. Many of the reforms they advocate have been blocked since 2015, when haredi parties rejoined the coalition government on condition that many progressive reforms in a variety of issues would be held in abeyance.
Lawyer Nitzan Shiloni of the Center for Women’s Justice told the Magazine that her organization “is committed, in both ideology and in our work, to constructing a legal system that reflects gender equality. Changing only one area of family law as if in a vacuum, while ignoring the bigger picture of a system that is entirely inequitable, does not achieve equality. Instead, it further disempowers women, who are already at a disadvantage.”
Continuing, she stated, “As long as the rabbinical courts are authorized to adjudicate family law, as long as Jewish laws of divorce put men and women on unequal footing and as long as women are extorted into unfavorable divorce agreements in exchange for a get, it is impossible to talk about ‘equality’ that benefits only one party in the equation. We welcome comprehensive reform in Israel’s family law that would ensure justice and equality for all men and women.”
On the flip side, Shared Parenting chairman Guy Raveh told the Magazine, “Anyone who is familiar with the area of family law” is aware “that the existing laws are obsolete and lead to needless battles between divorcing parents. Currently, the state views fathers as second-class or ancillary parents” both in the law on the books and in the day-to-day struggles in courts.
He attacked the current situation in which “the economic burden of children until age six is solely on the father. There is no review or sorting through of the relative income of the mother. Many fathers must work overtime hours and sometimes multiple jobs,” which in practice means they lose out on time with their children. The “starting point of the discussion should be an equal sharing of child custody,” without which “the best interests of the child” are lost in the shuffle.
How do you improve a system that has so many contradictory trends and so much misery and counter-misery? No one has found an obvious answer yet, but getting to the heart of the issues and being able to listen to both sides can always be a starting point.