There is possibly no news item that raises public ire more than perceived institutional injustice against innocent victims, especially when that institution is a religious one.
Few stories have riveted the tabloids more the past few months than the recently concluded trial of the rabbis accused of using illegal pressure tactics to force Jewish men into giving their wives a get (religious divorce) to permit the wife a religious remarriage. By the same token, the plight of the “agunah,” or chained woman, who is forever captive to a psychologically abusive and financially abandoning spouse, became a much discussed subject throughout the media. That even a beth din-issued shtar seruv – a contempt order – could not force a recalcitrant husband to abide by an order to grant the get became well known.
The question then becomes what, if anything, can be done, either religiously or secularly, to bring the number of agunahs as close to zero as possible?
New York State has addressed a spouse’s refusal to grant a get through legislation that requires cooperation in obtaining one. Section 253 of the New York Domestic Relations Law is titled “Removal of Barriers.” Although nondenominational in language, the clear intent at the time it was written, around 30 years ago, was related to the issue of get refusal. The law requires someone filing a complaint for divorce to “remove any barrier to the [other spouse’s] remarriage following the annulment or divorce.” This law further applies to the spouse who did not file the complaint but consents to the actual divorce. The “barrier” referred to is clearly intended to be the granting of the get.
In 2010 the New York Legislature enacted Domestic Relations Law Section 236, which gave additional stature to premarital agreements requiring rabbinic arbitration on a practical level. The law also has been used to allow for economic pressure if the husband does not grant a get.
The overriding practical problem, despite the efforts made in New York, is that if the husband is not inclined to cooperate by giving a get, his civil pleadings will reflect that lack of cooperation. He will not be the party initially filing the complaint, and if he is responding he will oppose the divorce, so he doesn’t fall under the requirements of the New York law.
In New Jersey, the courts cannot force the husband to give the wife a get. There isn’t even a law similar to New York’s, which recognizes the problem and attempts to address it. Even if the parties are divorced civilly and they agree to cooperate to obtain a get, the court cannot force final cooperation. The husband can ignore a court order that he abide by his agreement, and the court cannot force him to perform.
The halachic premarital agreement has been a step in the right direction with regard to husbands who do not want to be hit with a seruv. This has been used for approximately 20 years. Before marriage, both parties agree that if the marriage breaks up, they will appear before a beth din – a Jewish court of law- at which time the get determination will be made. The agreement also includes that if the man refuses to provide a get to the woman, he must continue to support her (often at the rate of $150 per day) until the get is given.
This premarital agreement is considered enforceable under New York law, as discussed above, and most likely under New Jersey law as well, since premarital agreements are presumptively enforceable. However, there are many rabbis who will not require this premarital agreement. It is evident that at this time there is no method to guarantee cooperation of all husbands in giving their wives a get. However, as a matrimonial attorney, I believe that the New York legislation (which I hope to see in New Jersey) and the halachic premarital agreement all serve a very useful purpose.
The process of reaching a divorce settlement is an extended process of give-and-take. Important and sensitive issues, such as custody, child support, alimony, and division of marital assets, must be discussed and we hope they will be resolved.
It is a basic fact of human nature that when they are under pressure, people often resort to using whatever leverage is at their disposal to achieve the best result. There is no more single significant and powerful piece of leverage than the ability to withhold a get unless significant financial and even custodial concessions are made. Unfortunately, I have personally witnessed too many cases where this is precisely what happens.
The power of having the above-discussed legislation or halachic premarital agreement in place is that it removes much of this leverage from the men who do not want to be viewed poorly within the community. Most Jewish men, if ordered to give a get or face a seruv, will give the get. It stands to reason that a more equitable result will occur when both parties are on equal footing, and one doesn’t have the unfair advantage of being able to hold hostage the other’s future. So even if the agunah problem will not be quickly eliminated, at least it will be lessened.