ARTICLES

Deferring the dream: Rodef Sholom lesbian couple in danger of being torn apart

Aug-01-2008

by Stacey Palevsky, staff writer For J -Weekly, San Francisco

The Hebrew words, frosted in blue atop the three-tiered wedding cake, translated as “If you will it, it is no dream.”
Melanie Nathan and Dorit Israel believe those frosted words — made famous by the late Zionist Theodor Herzl — hold promise for their marriage and family.

The lesbian couple wed July 27 at Congregation Rodef Sholom in San Rafael in front of 150 relatives and friends. They were the first same-sex couple to marry inside the synagogue.

While the state of California recognizes their union, the federal government does not. The discrepancy means the couple and their two children may be forced to separate when Israel’s visa expires in January.

Israel is Israeli. Nathan is a South African-born U.S. citizen. Their newlywed joy is tempered by the uncertainty that lies ahead for the binational couple.  “If Dorit and I had federal rights, we would not have any of these [immigration] problems,” Nathan said.

Their immigration woes result from the federal government’s definition of marriage — between one woman and one man. Lesbian and gay U.S. citizens receive no recognition from the U.S. government of their foreign same-sex partners. There are an estimated 36,000 binational same-sex couples in the United States today, according to a 2005 study by the UCLA School of Law. Nearly one-third of those couples live in California.

Israel and Nathan met online in 2001. They fell in love once they met in person, after Israel had moved to the United States to attend college.  Israel had planned to study business at the University of Texas, but instead moved to California in 2002. She secured an R1 religious-worker visa, which has allowed her to teach Sunday school at Rodef Sholom, a job that inspired her to scrap business and instead pursue a bachelor’s degree in Jewish studies at San Francisco State University.

She recently graduated and plans to begin a master’s program at SFSU in the fall. But her R1 visa expires in January, and with a regular student visa, she wouldn’t be allowed to work (not an option for her, she says).
The only way to renew the R1 visa is to leave the country for a year — another option she is not considering. Federal immigration policies, however, ignore the ties that bind her and Nathan together.

Israel nursed Nathan through a bout with breast cancer. Nathan provided emotional support to Israel after Israel gave birth to their daughter, Refael, who is a U.S. citizen. After the birth, the couple learned that Israel’s mother had died six hours earlier.  As registered domestic partners, both are listed as parents on the now 3-year-old Refael’s birth certificate. Nathan and Israel also care for Hannah, 11, Nathan’s daughter from a previous partnership. Hannah and Refael are sisters in every sense, they say.

But none of this gives Nathan any leverage to petition for her partner’s residency. She said her family’s options are fraught with hardship.   Though the Jewish state is one of 16 nations whose immigration policy recognizes same-sex partnerships, the pair cannot move there because Nathan shares custody of Hannah with her ex-partner, and so must stay in the Bay Area.

Israel could return to her native country and take Refael with her, but “it would be a tragedy if [Hannah and Refael] were separated,” Nathan said. Nor can she stomach the thought of returning to Israel without her daughter.   “Our children have to have their parents together, and for that, we have to be granted the same rights, equal rights, as straight couples,” Israel said. “I don’t care if it’s called a civil union or if it’s called marriage, as long as we get rights.”

The newlyweds are working with an immigration lawyer, Kip Steinberg, also a member of Rodef Sholom.    Processing a green card application frequently takes up to a year or more. Israel expects to hear about her application in March, though that’s two months after her visa expires. As a backup, she has petitioned to extend her visa through April.

The women are trying to live a normal life while they wait, which includes attending services at Rodef Sholom and observing Shabbat with their daughters in their Woodacre home.   Like any other Jewish couple wanting to proclaim their commitment, they were married under a chuppah. They signed a state marriage license and a ketubah. They stomped on two glasses to remind each other that even in times of great joy, there is sorrow in the world.

And they continue to hope that if they will it, it is no dream.

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“Pre‐Divorce Mediation”

Melanie Nathan B.A. LL.B

 

The long term impact of divorce on a family, especially children, has much to do with the level of cooperation between the X-2-B’s.  The likelihood and extent of cooperation will depend upon the choices at the outset of the divorce journey. This is a daunting task given the anger, the blame, the shock and the sadness any or all of which dominate the milieu. Yet despite these emotions many uncoupling partners have utilized pre-divorce mediation as their first and most often successful option.

Pre‐divorce mediation, which is loosely defined as facilitated discussions at the onset of one’s decision to divorce or separate, provides a forum for X-2-B’s to formulate a transition plan, with the help the neutral mediator or a go-between. This eases the ordeal as it helps to establish order instead of chaos, the latter being more often than not an inevitable concomitant of the extreme emotion that precedes the decision to part ways. The family at large benefits from a transition plan as it is made in absolute good faith to protect the well being of all concerned, most especially the children and it also paves the way for a less traumatic divorce that focuses on joint solutions rather than adversarial attack plans.

 

The aspects of transition that are usually covered include the following:

§  The “who, what, how, where and when” of the move from the family residence;

§  How do we tell the children? Ensuring that the parents are on board to provide the same   facts to the children and preferably to make as to timing; for the parents to inform the children together;

§  Interim agreements to cover support of children and if necessary spouse;

§  Securing children’s access to both parents, albeit an interim plan;

§  Reassuring the parents (each other) that their separate rights will be fully honored; 

§   Establishing the groundwork for the divorce process itself;

§  Making agreement  not to alienate or dispose of community property;

§  Deciding which accounts should be paid and by whom;

§  Ensuring debts and liabilities are paid pending final resolution to safeguard credit ratings and preserve assets;

§  Exploring what resources the family may need to help them during this difficult time;

§  Deciding on how and when to file tax returns that may be imminent;

§  Agreement on how to safeguard and how to use joint bank accounts;

§  Deciding on how to handle pay checks;

§  Guardianship issues;

§  Deciding  together when to start the Court process and who will be Petitioner;

§  Deciding how the costs for divorce will be paid;

§  Establishing a date of separation for legal purposes;

§  Ensuring that medical insurance is maintained; and

§  Many more issues, such as those which may be specific to a family.

 

This pre-divorce mediation can be the single most valuable tool in the divorce.  It does not stop parties from seeking separate legal advice or even from having attorneys to review the work and pro forma agreements generated in the mediation sessions.  The value rests mostly in the spirit of cooperation that a skilled mediator can help engender.

Divorce is life-changing and when it happens it is usually the first time for most. Underlying all other seemingly dominant emotions are assumptions that lead to fear which triggers conflict;  uncertainty about the future, financial panic, as well as thoughts about losing custody of one’s children.    This is where pre-divorce mediation as a process is so valuable because the expert helps the parties to set aside the fear and avoid the assumptions.  There is a plan, a transition plan and it stays in place pending the final agreement/ judgment.

 

Having practiced law in a non-adversarial system, I find it untenable that in the USA the very first step required of a lawyer on behalf of their client is to immediately file a summons and petition on the other party to a divorce.  Now while I understand that the restraints contained in the Summons are designed to protect community property and children, it is the worst way to introduce the spouses to the legalities of divorce.  Notwithstanding their differences, these are people who have shared a life, with romance, love and children and the first bit of process the other receives is a document stating: “SUMMONS….You are being sued?”  In my work I have seen the negative effects of this and how it leads to fear, assumptions, antagonism and resentment.  It makes for a very poor start in this very difficult situation. Thus the question: “Is this truly in one’s clients best interests?”

 

For parting parents to be viable co-parents, cooperation is critical.  This should be the prime concern as it is a well known fact that children ought to have both parents strongly present in their lives.  It is counterproductive to tout co-operation in the face of adversarial jargon; I truly believe that short of changing the very procedure and process of divorce in our system, lawyers owe it to clients to recommend a process that provides an opportunity to alleviate the potential for a contentious divorce. That does not eradicate the job of the lawyer.

 

While  mediation can work well for most, it may not be an applicable method in cases of abuse, problems with addiction, parties who cannot behave and participate in the utmost good faith, spouses who hide assets and are not willing to participate in full disclosure.  Given that behavior and method used determine the future and the well‐being of the children, it is a fair quest that parties can step aside and bow to the best interests of their children.

 

Early mediation offers participants the opportunity to take control of their divorce, instead of the divorce taking control of them. Often the transition plan sets the basis for the final agreement, and what commenced as transition plan evolves into a permanent plan, saving costs and potential for huge legal fees.   Consequently participants can define all the terms of their divorce, together in the mediation process; they are able to helm a process that might otherwise run its own course when yielding power to strangers.

 

A reputable mediator should ensure that participants are suitable for the process and well informed. The parties should be equally empowered.  If the parties do not have separate representing attorneys, the mediator ought to provide full guidelines of what is required through the process and this may well include recommending separate advising and reviewing counsel, at least hired on an as needed basis.  

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