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Home » Divorce » Divorce and Custody in the Miami Jewish Community

Divorce and Custody in the Miami Jewish Community

Although any divorce and custody dispute can get complicated, when you add religion into the mix, the complexities can multiply exponentially. Considering divorce and child custody issues in South Florida, there are a number of additional issues which must be addressed when the couple are of the Jewish faith. Although divorce law in the state of Florida is both governed and controlled by Florida statutes, a Jewish divorce typically has little to do with the civil divorce procedure. The two must, however, work together to determine issues associated with the divorce and custody issues between a Jewish couple.

Why a Florida Attorney Who Understands Jewish Law is Important

A Get is a religious procedure which is not a substitute for a civil divorce under Florida law, but may be provided in addition to the civil process. The procedure for the Get is described in the Torah or the Talmud, and may be requested by Orthodox or Conservative members of the Jewish faith. Typically, the Get is performed by a Jewish Rabbi. While it might seem the Get has no bearing one way or the other on the civil divorce proceeding, in some cases it could become a point of negotiation during the Florida divorce. While the Get does not require an attorney, it can be extremely helpful if the attorney you retain for your Florida divorce has a clear understanding of the Get process and how it affects the civil divorce. An attorney who respects Jewish laws, as well as the desires of those who wish to follow these laws, can truly change the course of your Florida divorce.

Understanding a Get

Under Jewish law, in both marriage and divorce, the balance of power lies with the man, who gives his wife a ring, repeating an ancient formula in front of two witnesses to marry. Until the husband gives his wife a Get—a Jewish bill of divorce—stating she is free to become the wife of another man—the union is not dissolved. Husbands have an enormous amount of power over their wives in this situation, and could potentially use that power to obtain concessions from their wife in exchange for the Get. For example, the husband could withhold the Get, until his wife agrees to give him a larger share of the marital assets. If the husband refuses to give his wife a Get, she becomes an agunah, or a chained wife, who cannot remarry.

While the husband is free to remarry, any children conceived by the wife would be considered mamzerim, able to marry only other mamzerim or Jewish converts. In the past, Jewish communities tended to be much closer, and the Jewish rabbis had more power. This meant a husband who refused to give his wife a Get could be “persuaded” via social ostracism, negative public opinion, and even the threat of excommunication. While such sanctions are still available, they are not widely implemented. In the state of New York, a potential resolution for Get and Agunah issues crossed secular and religious realms. This resolution withheld a civil divorce until all barriers to the spouse’s remarriage were removed—until the husband granted his wife a Get. Such laws, however, have the potential to be found invalid due to the issue of church and state. Further, Jewish laws prevent any type of coercion by civil courts, and can find a Get invalid when such coercion exists.

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The Jewish Reconstructionist Movement

The situation of the Agunah was dealt with by the Reform movement by dispensing with the Get, accepting a civil divorce as the only thing necessary to dissolve the marriage. The Reconstructionist movement mandated the acceptance of a civil divorce in cases where the husband refused to grant his wife a Get. Three types of Get came from this movement: the mutual Get, the woman-initiated Get and the traditional Get. Even those with a belief in the Reform or Reconstructionist movements may still want spiritual closure to their marriage in the form of a religious divorce in addition to a civil divorce. Once the issues associated with the religious divorce and the Get are sorted out, the Florida civil divorce will proceed in much the same fashion as any other divorce. One party will file a Petition for Divorce which will be served on the other party. Residency requirements,as well as grounds for divorce, are the same for a Jewish couple as for any couple. (Residency in the state for the past six months, and Florida, like most other states has adopted a “no-fault” divorce where no claim of fault by either party must be asserted.)

Uncontested Divorce and Simplified Dissolution of Marriage

If the couple believes they can agree on all issues related to their divorce, they may be able to have an uncontested divorce which can be finalized within 30-60 days of the date when the agreement is reaches. If the following criteria exists, the couple may qualify for a Simplified Dissolution of Marriage:

  • There are no minor children involved;
  • The wife is not currently pregnant;
  • The six-month residency requirement has been met by at least one spouse;
  • The couple have decided on the division of assets and debts, and these decisions are satisfactory to both spouse;
  • The spouses are in agreement that the marriage is irretrievably broken;
  • Neither spouse expects money, property or support from the other aside from the property settlement agreement;
  • Both spouses have agreed to a simplified dissolution of marriage;
  • Both spouses are aware they could potentially be giving up legal rights, and
  • Both spouses will be present at the final hearing.

Asset Division

There are no differences in the civil divorce process of asset division simply because the couple are Jewish. Florida operates under the law of equitable distribution, which aims for a fair division of marital assets rather than an equal division. The length of the marriage, the current economic circumstances of each spouse, and the contributions made by each spouse during the marriage will be taken into consideration when assets are divided. When the career or education of one spouse was interrupted in order to offer support to the other, this will become a consideration, as well as whether there are dependent children of the marriage.

Child Custody Issues in Your Jewish Divorce

The Talmud embraces three rules governing child custody disputes between parents which are:

  • Girls over the age of six will be under the custody of the mother;
  • Boys over the age of six will be under the custody of the father, and
  • All children, regardless of gender, under the age of six, will be under the custody of the mother.

If these rules are strictly followed, the mother would be given custody nearly 3/4ths of the time. These “ideal” rules regarding child custody are operating under the assumption both parents are financially capable of taking custody of the child or children and that both parents desire custody. Jewish law further states that upon termination of a marriage the mother is under no legal obligation to financially support the children, while the father does have that obligation. If the parents are unable to reach a mutually agreeable custody decision, the laws of the state of Florida will prevail. Under Florida law the best interests of the child are the guiding principle, regardless of the age or gender of the child. The state of Florida has also largely exchanged the words “custody,” and “visitation,” with “shared parental responsibility.” While one parent will likely be named the primary residential parent, the other is equally likely to receive significant amounts of time-sharing. Both parents could be awarded joint legal responsibility of the children, meaning they have equal say in the important life decisions for the children including health, education and religious upbringing. Our south Florida law firm is well-known within the Jewish communities and have extensive experience representing Jewish men and women who wish to end their marriage and/or have child custody questions and issues.

South Florida is always a wild legal ride on which we want to keep you in the loop. The last year-and-a-half saw family law and child custody cases that not only made headlines but deserve monitoring as you seek legal advice from our skilled Ayo & Iken attorneys.