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The Prisoners of Divorce

By the time Suri Diamond (not her real name) was pregnant with her second child, she realized that her marriage was disastrous. Suri wanted a civil divorce and hoped that her husband would give her, without too much trouble, a get (Jewish legal divorce, pi: gifting, as well. Little did she know that the process to obtain a get would take her more than six years, a struggle which she admits she could not have waged without the support and kelp of many friends and Jewish communal leaders.

Within the past decade, with divorce having become part of the American landscape, the Orthodox community and even right-wing Orthodox and Hassidic Jews have been experiencing an increasing number of marriage break-ups.

As more and more Orthodox Jews enter the mainstream of society through employment and social interaction, many Orthodox Jewish women are finding fulfillment not only in their family life but in their professional pursuits as well.

The wish to express themselves and the resulting unwillingness to remain in unhappy marriages as their grandmothers in the shtetl (East European townlet) would have been willing to do for the sake of the family, plus the receding of the stigma attached to divorce, has led many to seek civil divorces when counseling and other means of reconciliation fail.

For religious women bound by halacha (Jewish law), the necessity of obtaining a get is foremost in their mind if they have any intention of remarrying. According to halacha, a Jewish marriage comes to an end by the husband giving his wife a get, a process only he can carry out [See LILITH #3, “Jewish Divorce Law: If We Must Part, Let’s Part as Equals, ” by Blu Greenberg.]

As a result, a too-familiar story has emerged, where for reasons either of vengeance, negotiating strategy, or just downright spitefulness, many men are not giving their wives the get that would release the women from their marital bonds. These women are left in a halachic state of limbo as agunot (chained women), unable to remarry.

Estimates of the number of agunot in New York State alone are as high as 15,000.

Many women told me of the pain that they had to endure to obtain their get. They spoke of the extortion tactics that their husbands sought to use in agreeing to give a get. Many lawyers, as well, have emphasized the unscrupulous tactics of fellow attorneys who use the get as a bargaining chip in separation agreements.

The courts in New York took notice of this practice in 1986 when in a landmark decision (Perl v. Perl), they set aside a separation agreement and its terms when it became known that the woman had only signed it because her husband threatened to withhold a get if she didn’t.

The plight of agunot became the focus of a conference that New York City Council President Andrew Stein convened in 1986 to acquaint jurists, lawyers and the community at large with the issues surrounding Jewish divorce. At this conference many speakers noted the need for lawyers to explain to their Jewish clients the advisability of obtaining a get, even if they were uninterested in one, because of the problems that might arise in the future.

While debate in the Reform movement has swirled around whether rabbis should urge divorcing congregants to obtain 2. get, Conservative and Orthodox rabbis regard a get as mandatory if one wishes to remarry.

There have been many stories of women who upon divorcing their spouses saw no need to obtain a get, only to face a situation years later when a potential husband wished to be married by a rabbi who wouldn’t perform the ceremony without one. It should also be pointed out here that any children born of a union where a get had not been obtained by the woman are considered mamzerim (bastards). Such a status, which prohibits these children from marrying anyone except other mamzerim, can cause great difficulty for the children especially if in the future they would seek to marry observant partners.

With the upswing in the numbers of both divorces and agunot, the issue of get has moved to the forefront in the Jewish community.

Long established mainstream groups have begun to take up the plight of agunot. In January, 1987, the New York Board of Rabbis, comprising 1000 Orthodox, Conservative, Reform and Reconstructionist rabbis, heard its Orthodox President, Rabbi Haskel Lookstein, urge rabbis to call upon their congregants to take action against any person refusing to cooperate in either the giving or receiving of a get. Suggested methods included withholding synagogue membership or denying them all synagogal honors— in essence an attempt at old-fashioned ostracism.

More state legislatures are following New York’s lead and grappling with laws designed to alleviate the plight of potential agunot.

Within Orthodox circles, movement has been slow in grappling halachically with this issue. At the same time, a dramatic shift has taken place in the tactics many Orthodox women and then- supporters are willing to use – including protest rallies—to obtain gittin from recalcitrant husbands.

In 1981, Suri asked her husband/or a get, a request which was summarily rebuffed. Unsure what to do, she turned to the local Bet Din(Jewish law court, pi: Batei Din) in her Brooklyn community for help. As per proper procedure, the Bet Din summoned her husband to appear, to enable it to hear the case. Rather than coming before them, he left the country.

While civil divorce proceedings were pending, Suri’s in-laws became involved in the matter. They threatened to have their son withhold the get if Suri didn ‘t agree to generous visitation rights, and attempted to kidnap their grandchildren, forcing Suri to obtain a court order of protection.

While Suri received her civil divorce in 1984, she was still no closer to obtaining her get than she had been three years earlier.

Over the course of the next two years, various Batei Din summoned Mr. Diamond to appear before them for hearings. Time after time he refused to appear or if he did, he stormed out. Court after court found him in contempt, imploring him to grant his wife a get—in vain.

For hundreds of years, in self-governing European Jewish communities where Jewish courts had the power to rule on cases and have their decisions accepted as binding, the get issue could often be resolved in a speedy fashion. While a man must give a get of his own free will, as the Talmud in Yevamot stated, “we use coercion until he says, ‘I want to.'”

Social and economic pressures, including the threat of excommunication, could be brought to bear on men withholding a get. Sometimes, following the dictates of Maimonides, who spoke of the evil inclination lurking within these men that had to be beaten out, communities could “convince” them to deliver a get to their wives.

Although Jewish courts have been stripped of most of their real power in this post-Emancipation age, religious Jews, bound by halacha, accept their jurisdiction and decisions. Moreover, there are sanctions they can impose that can be considered binding, even by the civil courts.

This became a factor in the Conservative movement’s attempt to provide a woman with an “enforceable” type of marriage contract.

In 1954, the late Professor Saul Lieberman, the noted Jewish Theological Seminary (JTS) Talmudist, devised a clause that could be inserted into the traditional ketubah (marriage contract) signed by the bride and groom at their wedding.

According to this “Lieberman Clause,” the couple agreed to recognize the Bet Din of the JTS as having the authority to counsel them and to summon either partner before it. The party called before the Bet Din would be asked to adhere to the terms in the ketubah. It was believed that through the clause a party, having promised to live in accordance with Jewish law, could be directed to either give or accept the get or pay a fine for not carrying out the Bet Din’s decision. It was also hoped that, barring voluntary compliance, the Bet Din’s decision could be enforced in civil court.

A ketubah with the Lieberman Clause became the focus of a watershed court case, Avitzur v. Avitzur, that came before the New York courts in the early 1980’s. After years of litigation, the Court of Appeals ruled that the ketubah containing the Lieberman Clause could be enforced in civil court, holding it to be like any enforceable arbitration clause.

As an outgrowth of the Avitzur case. Assemblyman Sheldon Silver introduced a Get Bill into the New York State Legislature. The bill required the plaintiff in a divorce action to sign an affidavit swearing that he/she had removed all barriers to his/her spouse’s remarriage. This implied the granting or accepting of a get, but purposely avoided using the word.

The American Jewish Congress and the (Reform) Union of American Hebrew Congregations urged Governor Mario Cuomo of New York to veto the bill on constitutional grounds. The JTS and the right-wing Orthodox Agudath Israel favored it, arguing that under Jewish law, the granting of a get was a civil rather than a religious act and therefore posed no church-state problem.

Others argued that the Get Bill’s requirement that the clergyperson who had married the couple attest to the get’s having been given was no more “excessive entanglement” of church and state than the state’s having delegated the authority to him or her to marry the couple in the first place.

Governor Cuomo signed the bill into New York law in August 1983. The Get Bill as worded, however, only requires the plaintiff in the divorce action to sign the attestation described above.

Thus it would be of little help to women suing for divorce whose husbands have refused to give them the get, because in such cases it is the husbands who are the defendants in the action (and hence not required to sign the affidavit). Yet many attorneys have pointed out that women are protected because in many cases a husband will counterclaim, thus requiring him to sign the affidavit after all before the divorce can be final.

A number of other states as well as Canada considering similar get legislation have sought to draft slightly different versions to alleviate some of the problems raised in the New York Statute.

One noteworthy example is that of a bill passed in the Canadian province of Ontario in 1985, with the unanimous support of the entire Jewish community, from Orthodox to Reform rabbinic and secular groups.

The Canadian version differs in several respects from its New York counterpart. One of them is that it calls on the spouse applying for or responding to an application for property division or financial support to complete an affidavit that all barriers to remarriage had been removed (a reference to the get). This provision increased the number of women who could receive relief.

Nevertheless, there are still women who fall through the cracks; women for whom the get laws are of little help; women who were already civilly divorced before these became law and are still waiting to receive a Jewish bill of divorce.

Suri was desperate for results and she turned to a group of women who had formed an informal organization, “The Committee to Free Agunot.” Seeking to pressure Suri’s in-laws, these women contacted them and indicated that if a get was not granted, demonstrations would commence outside their place of business. What was now a private matter would soon become public knowledge within the community at large.

With the in-laws warning that such action would only delay delivery of a get, the plans dissolved. But the inlaws promised that their son would appear before the Bet Din and Suri helped that her days as an agunah would soon be over.

Her hopes were dashed when, after failing to appear before the Bet Din, her husband disappeared.

By Spring 1986—five years after Suri had first tried to get obtain a get—she realized that the time for public action had arrived. With help from the Committee to Free Agunot, local residents and rabbis, a new, aggressive campaign was launched on her behalf.

On a bright sunny day in May, over 200 people gathered in front of her in-laws ‘ house in Boro Park, Brooklyn. People had been drawn to the rally by word of mouth, posters in the neighborhood, and announcements from sound trucks. The men standing on one side of the street and the women on the other heard a shocking tale of suffering and abuse taking place right within their own midst; rabbi after rabbi spoke of the shame that this man had brought to the community.

One speaker called on community members to voice their outrage at the plight of a person who, akin to a prisoner, was deserving of help: The “Mitzvah of Pidyon Shivuyim” requires the community to save one of their own.

The rallies and demonstrations went on for several weeks. Suri’s husband had fled the city for another town but one of the members of that community recognized the man’s name from news of the demonstrations and got in touch with Suri.

Based on that tip, Suri went there with a group of rabbis, hoping to convince her husband to grant the get. Only after several trips with rabbinic witness and a scribe—the final one involving eight hours of rabbinic convincing—did her husband finally relent.

Six years after Suri had first approached her husband for a get, she finally received it.

Along with the movements in the courts and legislations, another aspect of the get issue has been the increasing radicalization of the Orthodox community In the past ten years, various groups have formed to alleviate the plight of agunot and help them obtain a get.

Increasingly, rallies and other forms of communal pressure are being brought to bear on recalcitrant husbands. In Los Angeles recently, community centers were plastered with posters showing a man’s face, giving his name and stating that he refused to give his wife a get. In one community in Canada, a group of women united in their refusal to go to the mikvah until a particular husband relented in his demand for $25,000 in return for giving his wife a get. (Mikvah is a prerequisite for the resumption of a couple’s sexual relations after the mandated menstrual separation.)

The hope is that these types of activities will act as a deterrent to potentially recalcitrant husbands. Said a long-time resident of Boro Park: “The time has come where the frum (religious) community is saying that it is so outraged at the behavior of some of its own that they now feel the need to go public with it. People do not want to remain silent any more.”

The Orthodox community has turned to both public action of this nature on the one hand and support of get legislation on the other for two reasons. One is its inability to coalesce a halachic solution to the get/agunah problem because of what Susan Alter, founder of Agunah, Inc. (see box), calls the “meekness” of Orthodox figures in dealing with this issue.

The second reason is its refusal to accept solutions adopted by the Conservative movement which many feel are viable halachic means to solve the problem. They have been rejected by the Orthodox because of their Conservative sponsorship—another negative by-product of the acrimonious infighting and power struggles among the different denominations in American Jewry.

At the time the Lieberman Clause was initiated, many members of the Orthodox community criticized it on technical halachic grounds. But most observers agreed that political issues lay behind the heavy-handed criticism. There was, at that time, an attempt to organize a joint Orthodox-Conservative Bet Din, and religious rightists were not eager for such a union. They eventually killed the project, and it is unlikely to come to fruition in the near future.

Within Conservative ranks, the objections to the Lieberman Clause were primarily psychological. Many rabbis felt that couples on their wedding day would balk at discussing and signing a ketubah which contains a clause implying the possibility of divorce.

In fact, the traditional ketubah already implies the obligation a husband has to his wife in the event of divorce, but often, when no translation from the Aramaic is read at the wedding, those passages can remain obscure. Moreover, the psychological objection to the clause has lost its impact in today’s divorce-prone society, though it remains unclear how many Conservative rabbis actually use the ketubah containing it. In the late 1960’s, Rabbi Edward Gershfield of the Jewish Theological Seminary prepared a pre-nuptial agreement to be signed by a couple which called on the husband to promise to deliver a get if the marriage ended in divorce. If no get was delivered within six months of the granting of the civil divorce, the Bet Din declared the marriage null and void.

By the early 1970’s, another method of Havka’at Kiddushin (annulling the marriage) was utilized. This procedure— which has been used only as a last resort in problem cases—is based on the concept that at every wedding ceremony the betrothal formula that a man recites acknowledges that he is marrying his wife “according to the laws of Moses and Israel.”

Implicit in these words is that the rabbis (in the broadest sense) are giving their consent and sanction to this marriage. Hence, if the original basis upon which consent was granted has changed (i.e., the adherence to halacha, which includes ending a marriage with a get) the rabbis can retroactively withdraw their approval of the marriage by annulling it. To actually proceed with this method would require a woman to go before the JTS Bet Din with proof of a civil divorce and proof of the complete failure to obtain a get from her recalcitrant husband.

The Reconstructionist movement has allowed women to initiate the giving of a get. Furthermore, in 1980 they convened a Bet Din (which included a woman among its members) that issued a shtarpiturim, a document freeing the woman in question to remarry even though neither a get was obtained nor the marriage annulled. These innovations have not been accepted by either the Orthodox or Conservative movements.

Within the Orthodox community, controversy has swirled not only around acceptance of gittin prepared under Conservative auspices and the advisability of turning to civil authorities for help, but also on the question of encouraging the use of pre-nuptial agreements.

In an interview published in the spring 1981 Response, Rabbi Saul Berman predicted that the Rabbinical Council of America (RCA) as well as Agudath Israel would devise a means to help agunot and prevent the aguna problem from arising in the first place.

By the fall of 1983, the RCA had prepared a version of a pre-nuptial agreement which obligated the bridegroom to issue a get and the bride to accept it within 30 days after the receipt of a civil divorce. The RCA Bet Din could impose a $250 a day liquidated damage clause (similar to a fine) on either party who refused to comply when requested. Imposing such fines remains controversial on secular legal grounds and potentially on halachic grounds.

For reasons that are still unclear, the RCA pre-nuptial agreement was withdrawn, and institutional Orthodoxy remains without one. Various rabbis and scholars have continued to proffer their own versions. For example. Rabbi J. D. Bleich, Rosh Yeshiva at Yeshiva University, devised a prenuptial agreement that obligates the husband upon marriage to provide his wife with either room and board or $250 a day. It assumes that the wife would demand the per diem sum only if the marriage ended and she did not receive her get.

Rabbi Moshe Tendler also of YU devised a document to be signed at a wedding which merely translates into English the requirements that a husband has towards his wife that are found in the ketubah: “to care for and feed my wife in accordance with Jewish law.” This agreement obligates the husband to support his wife in the style to which she is accustomed until she receives her get. Rabbi Tendler views this as separate from any support payments that could be imposed by a civil court.

It is clear that within the last 10 years the Jewish community has become much more sensitized to the troubling get issue and the heartbreak of so many agunot. However, a halachic solution capable of solving future problems and accepted by all, seems far away. Pressure should be brought to bear on those who fail to utilize halachic methods that are currently available to solve this problem.

Meanwhile, what hope is there for agunot?

First of all, much can be learned from close-knit Jewish communities which impose communal sanctions on men who keep their wives in halachic limbo. The larger community should adopt these methods and impose its own ban on working with—and honoring—individuals who refuse to give or accept a get.

Second, there are the courts. Many religious women have turned in desperation to secular courts to adjudicate disputes that might be better suited to be heard and dealt with inside the Jewish community. While some object on constitutional grounds to the spectre of the secular courts becoming involved in this issue, access to the courts in certain cases can bring about a successful conclusion.

Finally, most lawyers stress the importance of pre-nuptial agreements with provisions about get as a safeguard to avoid couples contemplating divorce having to face the thorny issue of get at a time when feelings are bitter and emotions raw. Said one lawyer:

“Heaven forbid one should think that divorce is as inevitable as death. But today, getting married without such a pre-nuptial agreement is akin to going through life without a will,”

Adena Berkowitz, a New York lawyer,is a frequent writer on Jewish issues. She is currently completing her doctorate in Ethics and Philosophy at the Jewish Theological Seminary. This article is excerpted from an unpublished study on “Divorce and the Jewish Community. “

The Avitzur v. Avitzur Case

Susan Avitzur married Boaz Avitzur in 1966 in a ceremony utilizing the Conservative ketubah which contained the Lieberman Clause.

She divorced her husband civilly in 1978. As called for in her ketubah, she asked Boaz for a get and when he refused, she turned to the Bet Din of the Jewish Theological Seminary to have it compel him to appear. He refused. She turned to the New York Supreme Court for help in ordering him to appear at a Bet Din.

Boaz Avitzur argued that a court order compelling him to appear before a religious tribunal would involve excessive engagement in what he termed a religious matter, and hence, would violate the separation of church and state.

The court rejected his constitutional objections and he was ordered to adhere to the procedure he had promised to abide by in his marriage contract.

The Appellate Division reversed this decision, noting that it would be a dangerous precedent to allow a state court to enforce what they viewed as a religious requirement.

In 1983, Susan Avitzur appealed the decision to the New York Court of Appeals. In a 4-3 decision, the jurists held that there was no judicial or constitutional objection to compelling Boaz Avitzur to live up to the terms of the ketubah.

Although the agreement was entered into as part of a religious ceremony, the court decided to treat the Lieberman Clause in the ketubah as akin to an agreed arbitration clause. Boaz Avitzur appealed to the United States Supreme Court, but it refused to hear the case.

The Court of Appeals decision led to the matter being returned to trial for determination of the factual and legal meaning of the ketubah itself. During the course of pre-trial procedures, Susan Avitzur abandoned the lawsuit for what her attorney Richard Hanft—who had handled the entire case on a pro bono basis— explained were personal reasons, which included the protracted length of the proceedings. To date, Susan Avitzur has not received her get.

For Help in Obtaining a Jewish Divorce

GET Organization
POB 300131
Brooklyn NY 11230
(718) 871-3407

GET (Getting Equitable Treatment) helps women and men obtain Jewish divorces from men unwilling to comply and women unwilling to accept. GET has volunteer caseworkers as well as legal and halachic consultants. While GET seeks to utilize behind the scenes pressure, it will resort to more public means of protest if all else fails.

Agunah, Inc.
463 East 19th Street
Brooklyn NY 11226
(718) 859-4887 (days)

Agunah, Inc. provides a comprehensive list of organizations ranging from those providing psychological counseling to financial aid to women seeking a get. It pressures the Orthodox rabbinate to publicly acknowledge the problem and the failure in many cases to utilize Jewish law to solve problems; and pickets and protests when other means have failed.

KAYAMA
POB 4007 College Point NY 11356
(718) 544-0357

KAYAMA, a volunteer non-profit group, seeks to educate couples about the importance of a get and explains its procedures. In the event of financial difficulty, it helps defray the cost of obtaining the get. KAYAMA relies on Orthodox Batei Din to resolve conflicts and on Orthodox authorities to write the actual get.