Your divorce is final. You’ve come to an agreement with your ex spouse and everything is signed and official. Custody has been decided. Child support finalized. Getting here has been one of the most difficult and emotionally challenging things you’ve ever done. You’re ready to take a deep breath, sigh with relief and step into your new life.
But wait! It’s October 2020. All those well laid plans for the future have been completely upended. The effects of the coronavirus are staggering. Visitation schedules have been disrupted by quarantine or isolation. Not only have salaries been reduced, but there is widespread unemployment and as well. Divorced families have suffered some of the worst effects of this pandemic.
We’ve been inundated with calls at Hait Family Law, both from frantic parents who can’t pay the child support because of corona related job loss, and those who can’t make ends meet without receiving those payments. They want to change or challenge the judgment in their divorce agreements.
So, is it possible to make changes to an original divorce agreement or divorce related judgement for reasons that are out of someone’s control?
First, it is worth pointing out that if a couple has divorced through a mediated agreement, then at any time, as long as they both agree to the changes, it should not be a problem. If they want to adjust the amount of the child support payments or change the visitation schedule, they can have their original divorce agreement amended or have an addendum added to it. The courts (both Family and Rabbinic) will generally accept the changes. It’s important, however, to go to the court that affirmed their agreement in the first case. This is relatively easy and just involves going in front of the judge (or dayanim) and repeating the same process they went through when they originally got their agreement affirmed.
Regarding judgments made by a court, the situation is somewhat more complicated. In the rare occasion where ex-spouses come to an agreement to change a judgement after litigation has occurred, it can be done by having both parties rewrite their agreement and having it affirmed by a judge (or dayanim) in the court that issued the judgement in the first place. This is similar to the case of ex-spouses agreeing to amend their previously affirmed divorce agreement. However, all bets are off if the ex-spouses don’t agree to the changes being demanded by one or both of them.
In those situations, a new lawsuit must be filed and it should be noted that the chances for winning are generally very low. The suit should be filed in the same court that heard the case the first time. The most common things litigated in these types of situations are child support (if brought by the ex-husband requesting to pay less or by the ex-wife requesting to receive more) or for a change in custodial rights or visitations. It is a high threshold for the person wanting the change, to cross. For the court to even entertain amending the prior judgment, the person requesting the change must be able to prove that the situation has changed, usually radically, and through no fault of his or her own.
Even before the fallout from Covid 19 became part of our everyday lives, being fired or being forced to accept a lower paying job did not generally result in approval for a change of child support payments. On the other hand, a surgeon’s arm being severed in a car accident, would be an acceptable reason for approval of change.
There are new questions since coronavirus that the court must consider when being petitioned for a change in child support or custody.
1) Has anyone received a government subsidy because of a failing business?
2) Does that prove they can’t provide for the children or does it mean they can?
3) If the parent who receives the child support is the only working parent how does that affect the status quo?
In recent years there have been landmark legal changes made in the way child support in Israel is calculated and the pendulum has swung away from awarding custody of minor children to one parent, towards joint custody. Be that as it may, there have been no new legal changes in the way the courts are required to handle amendment requests because of Covid 19, even though it has had such a devastating effect on everyone. The threshold for proving an altered situation is still high and each case is decided on individually. If the effects of Covid 19 persist this may change, but for now the status quo remains.
The legal system in Israel can be a complicated affair with the Family and Rabbinic courts operating independently. If you want to change your divorce agreement during these unsettled times, you need an attorney who is comfortable navigating both courts and will provide support and guidance in anticipating the long-term effects of decisions you make now. You do not have to be a victim of the system!