David Seidemann Exclusive Interview on Divorce in Halacha and Law.
Seidemann & Mermelstein offers legal representation for cases involving family and matrimonial law, including divorce, child support and custody, as well as personal injury, auto and construction accidents.
*Disclaimer: One must consult with their personal Rav or Lawyer before making any decisions about these matters.
5TC: Firstly, we wanted to thank you so much for taking out of your busy schedule in order to educate the 5TC community.
DS: My pleasure.
5TC: Do you have Jewish Clients?
DS: I have many Jewish clients. In fact, most of them are and most are orthodox.
5TC: Do you as an orthodox Jew tell your Jewish clients that they should not be litigating in court and instead be litigating or settling their divorce in Bais Din?
DS: No. Beis din does not have the authority to make certain decisions such as child custody determinations. Other issues that can be resolved in beis din should be.
5TC: Do you recommend to them that they consult their own Rav as to whether they should be in court?
DS: No. That’s not my function as an attorney. I do however ask a general question to the clients asking them if they have sought advice or guidance from a rabbi or therapist.
5TC: Do you find that often people hire/consult with “toens” who give the heter arakaos? Is that appropriate? Should they be shopping around for a heter as opposed to consulting with their own Rav who they normally ask shailos to?
DS: Unless the Rov is versed in New York matrimonial law asking the Rov for advice might be a waste of time. I receive many calls from Rabbis who are counseling people as to what advice the rabbi should be giving.
5TC: People going through the divorce process are often very emotional and heated. Do you as the attorney do whatever the client requests no matter how unfair it may be to the other side, or do you sometimes say-you know what, we should really calm things down. You have kids together. There is no reason to be escalating things.
DS: A doctor would never listen to the patient as to how to conduct the surgery. I follow my instincts and the law. Part of my job is to protect my client from the other side. But part of my job as well is to protect the client from themselves. If they are too emotional, nothing will get accomplished.
5TC: Often during a divorce, a Judge may grant an order of protection to protect one spouse or the children from the other spouse. Obviously, in many cases, those order of protections are justified and needed. How do you as an attorney determine whether the allegations of abuse are in fact true? Is that something that you consider or whatever your client says you take at face value?
DS: I Never take anything my client says at face value. I ask for some credible measure of proof before taking action. There is nothing worse than making an accusation that turns out to be false.
5TC: Can orders of protections be used to gain an unfair advantage or leverage against the other spouse? In NY, you can file for an order of protection ex parte (without the other side being able to dispute the allegations) and a hearing on the matter may not take place for many months. That automatically puts the filing party in an advantageous position as they now have sole custody of the kids and house and puts the other party on the defensive.
DS: I would recommend filing for an order of protection only as a last resort. I would want to see some proof including a police report if domestic violence is alleged before proceeding with an order of protection.
5TC: Is filing order of protections a legal strategy that you would recommend to your clients if you thought it would help them in the long run, even if those order of protections were not actually warranted? What if your client tells you that I want the kids, lets file one even though I don’t need one?
DS: my job is to protect my client. If my client brings me legitimate proof at abuse and a judge later decides that it does not rise to a level that would warrant an order of protection or order for exclusive use and occupancy of the residence, that is the judge’s decision.
5TC: Have you ever filed an order of protection on behalf of a client and had the order of protection ultimately dismissed? Did you feel any guilt for participating/help to facilitate the false allegations?
DS: In most days not all of the litigation there are two sides to a story and a judge or a jury decides the outcome. It does not mean that one side was lying. It could simply mean that there was insufficient proof from a legal standard to rule in the petitioner’s favor.
5TC: Are certain Batei Din known to be more advantageous to a man over a woman and vice versa? Are certain states more advantageous to a man over a woman or vice versa? Do you find that people are often forum shopping in a divorce to be in the venue that is more favorable to them?
DS: I cannot speak about courts outside of New York. I can tell you that the New York courts are gender neutral and the resolution of the case is fact based. Regarding beis din, it’s not so much the beis din but the actual rabbis assigned to hear the case. Their knowledge of the intersectionality between Halacha and New York law is what drives the case.
5TC: At what point should a Get be given during a divorce? Should it be given immediately so it can’t be used as leverage?
There are really cruel men out there who extort their ex for hundreds of thousands of dollars in exchange for a Get. However, there are other situations where the woman may have abducted the children or made false allegations against the man. Is the man in that case justified in saying, you’re not getting a Get until you let me see the kids or drop your false allegations…Would you suggest to your male client to withhold a Get in that scenario?
DS: if both parties are negotiating in good faith the get can wait till the end. Halachicly a man has the right to know his financial obligations before giving a get.
5TC: Is it fair for women to break halacha by litigating in secular court as opposed to a Bais Din yet at the same time demand that a Get be given to them immediately?
5TC: Shouldn’t men be allowed to say, you get out of secular court? Come follow the halachic process of coming to Bais Din. When the Bais Din tells me to give a Get, I will give the Get. Should a man in that situation be allowed to withhold the Get until the woman pays him back for all the money she caused him to spend in secular court against halacha.
DS: I would suggest he follow Halacha which provides for such scenarios.
your question presumes that It is against halacha to pursue a divorce in secular courts. It is not. Beis din can not grant a divorce. Beis din cannot decide custody. Beis din must decide finances pursuant to the child support guidelines. There are other instances where going to court is permitted for instance where the other party evidences the intent not to follow beis din. With regard to fees, if one party feels that the other party has unfairly protracted litigation the appropriate motion can be filed with the court.
5TC: This has been very eye opening, again we thank you very much for all the insights!
DS: Pleasure, all the best!