In New York, there are enclaves of different traditional communities, including a strong Indian, Jewish, Muslim, Chinese and other Asian presence. There is also an amalgam of different religions, as people often have some sort of religious outline to their traditional backgrounds. Family law attorneys and mediators must be sensitive in their approach when handling divorce for those with specific cultural or religious guidelines.
During the initial intake stages, it is important to check the client’s temperature to learn their tolerance level. What are their views on divorce? What are the views of their nuclear community, which they are intrinsically a part of? Does divorce contradict the religious beliefs they otherwise subscribe to? Is divorce still highly stigmatized in their community? Can they go through with the divorce right now? If they can’t, there is a reason they came to you in the first place—what needs to be addressed?
Some cultures and religions are anti- or highly resistant to divorce. A client may reveal that they are Muslim and attend mosque, or that they are deeply involved with their church, are close with their pastor and their church community, and feel divorce is against their religion.
It might be that divorce is the right solution, but it’s not the right time. They’re afraid of how they’ll be perceived in their community, and their religion tells them they should stay married. For these clients, family therapy, protracted and therapeutic mediation, a postnuptial agreement or a separation agreement may be better solutions in the here and now. These clients may eventually be able to follow through with the divorce, but the process of getting there and the clients resolving their inner conflict about it may need to run its course.
If the clients are Jewish, will their family or rabbi pressure them to exclusively submit to the Beis Din, and not initiate an action in civil court or withdraw any action previously submitted? These clients may receive a Hazmana from the Beis Din followed by warnings that they will be excommunicated from the community if they do not appear and submit to the Beis Din.
Perhaps a Jewish client signed a Halachic Prenuptial or Postnuptial Agreement with a binding Arbitration Clause, and they reveal to you that they did not understand and/or believe in it when they signed it or at the present time and question its enforceability.
In fact, a common trend now is for Jewish teenagers and young adults to get married shortly after completing religious seminary, when they are very young, and both husband and wife are still religious, having been exposed to similar influences until that point. Over time, one spouse leaves the religious lifestyle and no longer believes in its dictates, a process often referred to as “leaving the fold.” When this happens, divorce is almost always inevitable and imminent.
As an attorney or mediator, it is also important to be aware that often people within specific religions and cultures are strongly networked and tend to live in the same area, typically attending the same mosque, church or synagogue. If a client comes to an attorney or mediator for a divorce and has a positive experience, they will tell others. Within a few years, a family law practitioner may find him/herself divorcing many couples within the same tight-knit community. This heightens the need for attorney-client privilege, as clients come in stating, “I want you to do for me exactly what you did for my neighbor,” as if it is a made-to-order cake, and then try to discuss their neighbor’s case and draw comparables. Often they think they know the details of the other person’s situation and further assume that their situation is very similar, when there are, in fact, critical differences. The attorney/mediator must be hyper vigilant not to be lured in by these statements and discuss the details of their other clients, which would breach attorney-client privilege.
As someone working in community services, practitioners cannot just operate from an intellectual/academic standpoint, where they defer to the statutory textbooks or mainstream everyone. It is not a one-size-fits-all approach—family law attorneys and mediators need to become aware of the culture of the clients they are serving.
I feel thankful to have the honor and privilege of working with many traditional and religious communities and to serve my client’s individual needs and sensitivities. Please feel free to contact me with any questions.