For use when couples are entering a separation agreement
1. Parties execute Separation Agreement.
2. Parties file a joint Motion and Stipulation requesting that the Court enter a Temporary Order incorporating specified provisions of their Agreement, and delaying entry of Judgment of Divorce Nisi until after get has been delivered:
a. must incorporate: provision for binding arbitration before Beit Din;
b. may incorporate: provisions regarding custody, parenting plan, child support, alimony, health insurance (unless parties wish to have existing temporary orders;
c. should not incorporate: provisions regarding division of assets.
3. Court conducts inquiry regarding validity of the Agreement (read and understood, consulted with an attorney, believe there was full financial disclosure, signed of own free will, etc.).
4. Temporary Order enters in accordance with parties’ Stipulation.
5. Next hearing scheduled for first available date after 30 days.
6. If parties appear before the Beit Din, and a get has been delivered:
a. the Beit Din issues a decision stating that parties have complied and binding arbitration is concluded; and
b. at the next hearing, Court enters Judgment of Divorce Nisi.
7. If parties appear before the Beit Din and both are cooperating with the process, but a get has not been delivered:
a. the Beit Din issues an interim decision stating:
i. that both parties are in compliance with binding arbitration;
ii. expected date of further determination or final resolution; and
iii. recommendations for interim procedural or enforcement actions pending resolution (i.e. specific date of next meeting, production of paperwork, payments due to failure to comply), if any.
b. the parties file:
i. Joint Motion to Continue, requesting another hearing be scheduled after the date specified by the Beit Din; or
ii. Stipulation and Joint Motion for Temporary Order requesting that the Beit Din’s procedural or enforcement actions be made an order of the Court and that another hearing be scheduled after the date specified by the Beit Din.
c. Court (re)schedules hearing and/or enters further Temporary Order as appropriate.
d. At next hearing, proceed according to 6, 7 or 8 as appropriate.
8. If either party does not appear before the Beit Din, or if parties have appeared but either party is no longer cooperating:
a. the Beit Din issues an interim decision stating:
i. whether each party is in compliance with binding arbitration;
ii. expected date of further determination; and
iii. recommendations for interim procedural or enforcement actions pending resolution (i.e. specific date of next meeting, production of paperwork, payments due to failure to comply), if any.
b. the compliant party files:
i. Motion for Temporary Order requesting that the Beit Din’s procedural or enforcement actions be made an order of the Court and that another hearing be scheduled after the date specified by the Beit Din; and/or
ii. Complaint for Contempt for violating Temporary Order by not submitting to/complying with binding arbitration.
c. Court hears Motion for Temporary Order and Complaint for Contempt, enters Temporary Order and/or Contempt Judgment as appropriate, and schedules next hearing date.
d. At next hearing, proceed according to 6, 7 or 8 as appropriate.
For use prior to reaching an agreement
Parties execute Separation Agreement.
Parties file a joint Motion and Stipulation requesting that the Court enter a Temporary Order incorporating specified provisions of their Agreement, and delaying entry of Judgment of Divorce Nisi until after get has been delivered:
must incorporate: provision for binding arbitration before Beit Din;
may incorporate: provisions regarding custody, parenting plan, child support,
alimony, health insurance (unless parties wish to have existing temporary orders);
should not incorporate: provisions regarding division of assets.
Court conducts inquiry regarding validity of the Agreement (read and understood, consulted with an attorney, believe there was full financial disclosure, signed of own free will, etc.).
Temporary Order enters in accordance with parties’ Stipulation.
Next hearing scheduled for first available date after 30 days.
6a. If parties appear before the Beit Din, and a get has been delivered:
(1) The Beit Din issues a decision stating that parties have complied and binding arbitration is concluded; and
(2) At the next hearing (or administratively), Court enters Judgment of Divorce Nisi.
6b. If parties appear before the Beit Din and both are cooperating with the process, but a get has not been delivered:
(1) The Beit Din issues an interim decision stating:
that both parties are in compliance with binding arbitration;
expected date of further determination or final resolution; and
recommendations for interim procedural actions pending resolution (i.e. specific date of next meeting, production of paperwork, payments due), if any.
(2) The parties file:
Joint Motion to Continue, requesting another hearing be scheduled after the date
specified by the Beit Din; or
Stipulation and Joint Motion for Temporary Order requesting that the Beit Din’s procedural or enforcement actions be made an order of the Court and that another hearing be scheduled after the date specified by the Beit Din.
(3) Court (re)schedules hearing and/or enters further Temporary Order as appropriate.
(4) At next hearing, proceed according to 6a, 6b, or 6c as appropriate.
6c. If either party does not appear before the Beit Din, or if parties have appeared but either party is no longer cooperating:
(1) The Beit Din issues an interim decision stating:
whether each party is in compliance with binding arbitration;
expected date of further determination; and
recommendations for interim procedural or enforcement actions pending resolution (i.e. specific date of next meeting, production of paperwork, payments due to failure to comply), if any.
(2) The compliant party files:
Motion for Temporary Order requesting that the Beit Din’s procedural or enforcement actions be made an order of the Court and that another hearing be scheduled after the date specified by the Beit Din; and/or
Complaint for Contempt for violating Temporary Order by not submitting to/complying with binding arbitration.
(3) Court hears Motion for Temporary Order and/or Complaint for Contempt, enters Temporary Order and/or Contempt Judgment as appropriate, and schedules next hearing date.
(4) At next hearing, proceed according to 6a, 6b, or 6c as appropriate.
Sample Scenarios
David and Miriam were married in March of 1998, and they have three minor children. In February 2015, Miriam filed a Complaint for Divorce pursuant to M.G.L.c. 208 § 1B. The case progressed slowly, with the parties in court several times on various motions to compel discovery and to (repeatedly) modify temporary orders for parenting time. As of the pretrial conference in September 2016, the parties had not resolved the issues of parenting time, child support, alimony following the termination of child support, and the division of the marital estate, and the matter was set for trial.
On the first day of trial, counsel for both parties announce that the case has settled. “But...” Miriam’s attorney continues, “the parties respectfully request that the Court not enter a judgment of divorce today, pending the parties’ participation in binding arbitration with respect to a single issue.” The parties submit their fully-executed Separation Agreement, along with a Stipulation for Temporary Orders and request that the Court: (1) enter a temporary order incorporating this Stipulation; (2) schedule a further hearing, in approximately thirty days, regarding any final or intermediate arbitrator’s decision; and (3) conduct the colloquy regarding the Separation Agreement today, while parties and counsel are present, so that a judgment of divorce may enter, without further hearing, at a later date.
Upon your request for further explanation, Miriam’s counsel responds as follows:
Both parties are Jewish and acknowledge that a religious divorce document must be issued by David and accepted by Miriam, before a board of three rabbis, in order for either of them to remarry within the bounds of their religion—and the parties have not yet done so. My client is concerned that if a judgment of divorce nisi enters today, the Husband may not cooperate in that process. Therefore, the parties have agreed to participate in binding arbitration before the Boston Beit Din—an arbitration board—for the religious divorce process, with the understanding that their divorce will remain pending in this court until that arbitration board issues a decision stating that the parties have completed the arbitration process and recommending that the divorce judgment enter.
