Progress on the Get Problem
Over one-third of all Jewish marriages today end in divorce, but no more than ten percent of all divorces of Jewish couples are marked by the issuance of a get, a bill of divorce written by a scribe, given by the husband or his authorized agent to the wife or her authorized agent in the presence of a rabbinical court, or bet din.
This estimate comes from Rabbi Me-lech Shachter, head of an Orthodox bet din in Brooklyn who has been involved with gittin (plural of get) for over 30 years. He and other professionals and laypeople dealing with the granting of gittin cite two major reasons for this situation: ignorance and the refusal of one spouse to go along with a get.
Rabbi Shachter estimates the incidence of non-compliance to be as high as 30 to 40 percent of all get cases.
According to halacha (Jewish law), both spouses must agree to the get of their own free will for it to be considered valid, but only the husband can legally give the get. The wife can either accept or refuse it. (“Jewish Divorce Law” by Blu Greenberg, LILITH #3.)
In many divorce cases, either spouse, but more often the husband, will not agree to a get, usually out of vindictiveness and occasionally to get a payoff for finally complying, says Gloria Greenman, president of G.E.T —Getting Equitable Treatment. G.E.T. was founded to inform the Jewish public about the get issue and to help men and women obtain gittin when a recalcitrant spouse refuses to cooperate with the procedure. “Sometimes you find a person who didn’t even know what a get was,” she noted, “and this is something you can hold over the other person’s head, and they use it as a tool.”
Without evidence of a get having been granted and accepted, neither Orthodox nor Conservative rabbis will perform second-marriage ceremonies for either spouse.
Within Orthodoxy halachic research is being conducted to alleviate problems associated with Jewish divorce law. At a recent Family Law Institute sponsored by Yeshiva University, Rabbi J. David Bleich, Professor of Jewish Law and Ethics at Car-dozo Law School, and Judah Dick, a lawyer and ordained Orthodox rabbi, each proposed similar pre-marital agreements that would attempt to solve future get problems.
Both rabbis call for a standard pre-nuptual agreement financially penalizing a husband who refused to give a get. Rabbi Bleich suggested an agreement providing for “an enhanced level of maintenance to exist for the entire time there is a valid marriage as defined by Jewish law.” Rabbi Dick calls for “an agreement by which, if someone refused to give a divorce, he would have to pay damages.”
Both rabbis felt that such financial agreements would be enforceable by both Jewish and civil courts. But they could not be applied retroactively to pre-existing marriages, and so, commented Rabbi Bleich, “this is a problem which, under the best of all possible scenarios, is going to be with us for quite a long time.”
The Conservative movement has made several attempts in the past 25 years to “work around” Jewish divorce law, in the words of Rabbi Edward Gershfield, Associate Professor in Talmud at the Jewish Theological Seminary and an expert on Conservative get.
In 1954, the Conservative rabbinate added an amendment to the ketubah (the Jewish marriage contract) stating, in essence, that, at the time of marriage, husband and wife agreed that in the event of a civil divorce, either would come before a bet din of the Seminary or the Rabbinical Assembly at the other’s request. The bet din would then order a reluctant spouse to complete the get process. If the husband or wife did not cooperate, the bet din would level a fins. If the fine was not paid, the wronged party would sue in civil court. “It was hoped that a civil court would uphold the amendment,” said Rabbi Gershfield. But many rabbis, reluctant to challenge the status quo, did not use the amended ketubah. In addition, says Rabbi Gershfield, no case of this nature was ever brought before a civil court.
In 1968, the Law Committee of the Rabbinical Assembly and the JTS recommended to the Rabbinic Assembly convention a new proposal to avoid the taking of legal action in get cases. An agreement, separate from the ketubah, would be signed by both spouses before the wedding declaring that “if our marriage should end in civil divorce, and one of us refuses to cooperate with a get, the marriage is annulled by our own wishes.” This proposal, too, had no far-reaching effects.
In 1969, the RA-JTS Law Committee decided to authorize a bet din to nullify marriages when a spouse refused to cooperate with a get. Rabbi Gershfield was appointed head of the bet din, which has taken action “several times a year.” He stressed that the bet din is a last resort, used only in urgent cases where a wife is ready to remarry. A request to convene the special bet din must come from the rabbi who has been asked to perform a woman’s second marriage. “We are not anxious to use this sort of bet din if it is at all possible that the get can still be obtained,” Rabbi Gershfield stated. “Although it has Talmudic precedent, we want to preserve the get procedure.”
In contrast with many other professionals dealing with get, Rabbi Gershfield insists that refusal to cooperate with a get is not a growing problem. “There are far fewer cases than the Jewish media would have us believe,” he said, estimating that a get is contested in only ten to 15 percent of all instances. Often, he continued, a woman reports that her husband refuses to give a get because “after a divorce fight, she thinks he’s not going to cooperate, and doesn’t want to ask him.” The rabbi advises that the initial contact should be made through a rabbi, and that “a letter from a rabbi most often solves the problem.” However, he added, “when somebody’s really dead set against it, there’s nothing you can do.”
Gloria Greenman of G.E.T. stressed the problem’s urgency. “There is no doubt that the rabbis are obligated to address this problem,” she declared. “What other issue has such terrible ramifications? As the problem becomes more acute, the need for a solution is more pressing.”
Brooklyn-based G.E.T. was formed almost three years ago at a neighborhood get-together. “We were commiserating with one another about a personal friend whose daughter was unable to obtain a get,” Greenman recalled. “Suddenly I said, “let’s stop talking and do something about it.”
G.E.T. is the only group of its kind in the United States. It is dedicated to inducing both parties in a broken marriage to appear before a bet din and go through with the get process. Backed by legal and halachic advisors, G.E.T. explores various means of pressuring a recalcitrant individual, including social ostracism and denial of kibbudim (synagogue honors).
G.E.T. handles cases from the entire spectrum of Jewish observance but refers clients to Orthodox law courts, as their rulings are acceptable to all branches of Judaism.
Of the more than 125 cases the organization has taken on to date, almost 25 percent have been resolved—situations that would not have been settled had it not been for G.E.T, said Greenman. The successes range from cases where the civil divorce took place this year, to others that had dragged on for ten or 15 years. In some instances, G.E.T’s very existence may have served as a deterrent to spouses who might otherwise have refused to go along with the get process.
G.E.T. operates mainly on membership dues, donations and volunteer power. It maintains a casework committee of volunteer social workers, psychologists, counselors, lawyers, rabbis and lay persons. Cases are referred by rabbis, friends, relatives, word of mouth and the media. The casework committee meets regularly, and confidentiality is strictly maintained.
“We make it very clear that we are not representing either party and we are not taking sides,” said Greenman. “We say we are concerned that if you had a Jewish marriage, you should have a Jewish divorce.”
Although roughly three-quarters of G.E.T’s cases involve women whose husbands refuse to cooperate, the organization’s lecturers emphasize that get is not a “women’s issue” but a religious one. “We handle the cases of men and women,” Greenman stressed.
It must be recognized that, unlike Israeli religious courts, which govern marriage and divorce and can enforce their rulings through fines and incarceration, the bet din in North America has no legal power to compel an individual to cooperate with the get procedure. In certain cases, said Rabbi Bleich, “a bet din may use whatever police power is available in order to secure compliance with their decree.”
One form of “police power” endorsed by many Orthodox rabbis and lawyers consists of taking get cases into American civil courts, in the hope that they will instruct the husband to appear before a bet din and comply with its ruling. Said Richard Kurtz, a Manhattan attorney who has probably been involved in more get court cases than any other lawyer in the United States, “If you’ve gotten the husband before a bet din, you’ve gotten the get. All the fight is out of him.”
In 1979, Kurtz represented the wife in Stern v. Stern, a precedent-setting case in which a New York State Supreme Court judge ruled that a wife who had successfully obtained a civil divorce was entitled to a similar court mandate directing the husband to both grant her a get and to appear before a bet din convened for that purpose.
The deciding factor in Stern, Kurtz explained, “was finding that marriage under Jewish law is a contract, as it is under New York law. And if it’s a contract, the contract is enforceable. Under Jewish law, the enforceability of the contract is that where two parties cannot live together, they should divorce.” Kurtz continued:
The court’s decision ordering the husband to appear before a bet din is enforceable by contempt order and punishable by fine or imprisonment as long as he remains in the country. In Stern, an appeal was filed on behalf of the husband, but he chose to flee to Mexico rather than appear in court. To the best of Kurtz’s knowledge, the get has never been granted.
A number of subsequent cases have been decided on the basis of the Stern precedent, said Kurtz. In Waxstein v. Wax-stein, the couple signed a separation agreement stipulating that the husband would give a get and the wife would cooperate in the sale of the house. He refused and so did she. The court ruled that he must keep his promise of the get if she kept her side of the bargain, a decision that was affirmed by the appellate court.
(Although this was “an ordinary case,” Kurtz said, the appellate court decision referred to “peculiar circumstances,” leading some to believe that the court was trying to avoid a flood of such cases.)
Kurtz blamed sociological factors for the rise in get problems today. He does not deny that “there may be certain inequities in Jewish law regarding the rights of women in the get area,” but concludes that the major problem is grossly deficient education in the Jewish community.
Kurtz advises anyone seeking to have a get upheld in civil court not to make a separation agreement before the get issue is resolved. “If the lawyer tells you there’s nothing you can do about it, change lawyers,” he warned. “Because there’s always something that can be done. There are always things the husband wants, such as property or visitation rights, in exchange for which he’ll give a get.” Whatever deal is made, he continued, “make it contingent upon the getting of the get and hold back certain things until the get is actually given. But after the civil divorce,” he said, “forget about it. There’s no further relationship between the parties, and you’ll never be able to negotiate a get.”
Bracha Osofsky works in Public Relations in the Jewish community. She has completed an M.A. in Journalism at New York University.