Ask Gabriel, the legal expert

Vol III: I am worried that my wife will sue me to increase child support after the divorce is finalized.

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October 1, 2005 12:20

 
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Gabriel Freedman is an Israeli attorney. The following is general legal advice and no legal action should be taken without first consulting a practicing attorney. Send us your questions for Gabriel. Vol III: Q: Who do I complain to about an employment agency that is not paying my son? A: You have a number of options:

  • File a lawsuit in the labor court.
  • Complain to the histadrut, provided that your son is a member.
  • Complain to the Labor ministry. They take claims against employment agencies very seriously.
  • If your son is paid by the employment agency but is placed somewhere else, then he could turn to the owner and mention that he hasn't been paid.
  • If your son is still working and is interested in continuing working he should tread lightly. Employment agencies are notorious for firing workers for almost no reason. Q: I am getting divorced amicably but I am worried that my wife will sue me to increase child support after the divorce is finalized. Is there any way that I can protect myself? A: You cannot prevent your wife from filing a suit for child support in the name of the children because your divorce agreement does not bind the children as they are not parties to the agreement. In fact, even after a lawsuit is filed in the name of the children an additional lawsuit can always be filed if there is a substantial change in either the father's income or the children's needs. You can try to include a section in your divorce agreement obligating your wife to reimburse you for the difference between the agreed-upon child support and the child support decided in a future lawsuit. Courts tend not to enforce such obligations because they are generally to the detriment of the children being that the mother's obligation to repay the father would be at the expense of money otherwise used for the children's benefit. In addition, the mother is in an inherent conflict of interest since her obligation as the children's guardian to act in her children's best interests and to sue for increased child support would be in conflict with her personal interest not to be sued because of the lawsuit. As such the agreement tends to be seen as against public policy and therefore void. A better solution would be an autonomous third party obligation to pay the difference between the agreed-upon child support and the child support decided in a future lawsuit. It should be specifically stated in the agreement that the mother and the children have no obligation to repay the third party. It should be noted that even such an agreement would not necessarily be enforced because it could indirectly be against the best interests of the children. Another possibility is to agree that all monies which your wife received above half of the joint assets, if she indeed received more than half of the assets, shall be seen as received for child support but that such sums will not be offset unless a future claim is filed to increase child support. You should keep in mind that all agreements to prevent the children from suing are frowned upon because the general feeling is that in the original agreement there is a "conspiracy" between the parents by which the mother receives some benefit, either monetary or the father's agreement to divorce, and the child support is lowered accordingly. The courts want the children to receive a fair sum and therefore void agreements which are to the children's detriment. It cannot be emphasized enough that divorce agreements regularly deal with monetary relationships between the couple and between the parents and their children. One cannot look upon the agreement as a package deal, for the simple reason that the courts do not do so. If the agreement on the whole is fair, but is not fair to the children, for example if your wife receives the house and you pay a low sum for child support, then the children may sue to increase their monthly child support. * * * Vol II: Q: I have been working as a computer technician in a company for 11 years. I have been paid as a contractor and not as a worker. A friend mentioned to me recently that even a contractor is eligible to receive severance pay. Is this true? A: Not exactly. By law, only a worker is entitled to severance pay. That being said, a person's status (employee or contractor) is determined by law and not necessarily by what was agreed upon by the parties. Therefore, the fact that you agreed to work as a contractor, and assumedly paid VAT, would only be an indication as to your status, but would not bind the court. The court will determine status based on a number of considerations including: if the work had to performed personally, who supplied the necessary materials? is the work supervised? who benefits if the work is done more efficiently? is the work directly related to the business? etc. It should be noted that when a contractor claims that he is in fact an employee and sues for rights as such, the employer will usually file a counterclaim claiming that he paid the contractor more than he would have paid an employee. Labor courts will usually reject such a counterclaim. The court will only accept such a counterclaim when the contractor was paid substantially more than a worker and one of the following two conditions apply:
  • There was a written contract under which the contractor agreed to return such sums if he were to be deemed an employee.
  • The contractor requested to work as a contractor and not as an employee. Q: I have been divorced for a year. My relationship with my children is very important to me and I see them twice a week and on alternating weekends. My ex-wife informed me last week that she is taking the children and moving with her new husband to the United States. Can she make such a unilateral decision? A: No. If both sides do not agree to the move, then the court will decide if your ex-wife will be allowed to emigrate with the children. Your ex-wife will only be allowed to emigrate if the court decides that such a move is in the best interests of the children. The court will take into account a number of considerations including: whether or not the children want to move, your ability to be in touch with the children overseas, the connection between your ex's new husband and the children and the ability of the children to adjust to their new environment. The court will typically appoint an expert to assess the best interests of the children and will generally adopt the expert's opinion. * * * Vol I: Q: How is child support calculated? A: Unfortunately, there are no clear guidelines for calculating child support. Legally, the child's father is obligated to pay for the child's "necessary needs" until the child is 15 years old and both parents are obligated to pay for the child's support beyond those needs. After the age of 15, both parents are obligated to pay for his support. In dividing the support between the parents the courts will typically take into account the father's earning ability and assets but generally will only take into account the mother's actual income. Necessary needs are usually defined as food, clothes, housing, medicine and household expenses. One drawback of the Israeli system is that there is no binding definition of "necessary needs." A second problem is the amount awarded for each of the needs changes, not only depending on the judicial forum (Rabbinical Court or Family Court) but also based on the specific judge hearing the case. It is worth noting that the amount of support granted by the court is many times secondary to the relationship between the parents and, even more important, between the non-custodial parent (almost always the father) and the child. Invariably, children want all sorts of things while growing up, having their father take them out to eat, or buy them a new pair of sneakers or even finance a trip overseas. If the father feels that he is paying too much child support he will usually refuse to, or may not even be able to, pay any additional costs. On the other hand, if the sides reach an agreement on child support the father usually ends up paying additional sums which he is not obligated to pay. Beyond the financial gain the child's best interests are served by having both of his parents in his life and not feeling as if he is a burden to them. Q: I worked for a limited liability company that went out of business and I am still owed money. Is there any way that I can collect? A: Assuming that the company has no assets, there are still two ways to collect the money. The first way is to sue the owner or manger of the company. Labor Courts have been more willing than in the past to attribute company's debts to the company's owner or manager. Among other things the court considers are the size of the company, if the owner knew of impending monetary problems, if there is no clear demarcation of assets between the owner and the company etc. The second way is to file a claim to wind up the company, a process similar to bankruptcy. If the claim is accepted, then a worker who is owed money by the company can file a claim and will be paid through the National Insurance Institute. The drawbacks of receiving payment from the National Insurance Institute (Biyuach Leumi) is that the NII does not pay all work related payments and there is a cap on the money which can be received (approximately NIS 68,000). * * * Cafe Oleh experts have been chosen for their knowledge and reputation. Cafe Oleh does not take responsibility for any advice they offer. Click here to send us your questions for Gabriel, please include your name, city and country.
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