According to Biblical law (Deuteronomy 24:1-4), whenever a Jewish couple divorces, the husband must commission the writing of a Jewish bill of divorce, known in the Talmudic literature as a “get,” and deliver it, either personally or through an agent, into his wife’s hands in the presence of two valid witnesses, in order to effectuate a Jewish divorce. Even if a couple has obtained a civil divorce according to the law of the land in which they live, they are not considered divorced according to Jewish law until a get has been given by the husband to the wife.
The get is a twelve-line document written in special Hebrew calligraphy and signed by two qualified witnesses. The main text of the get is relatively straightforward, referencing the date and location, and stating that the husband is hereby divorcing his wife and freeing her to marry another man. However, many of the laws surrounding the text are relatively complex. The get needs to be specifically authorized by the husband and written by a qualified scribe. The names of the parties must be spelled with painstaking exactitude, including English names and nicknames that are subject to special rules of Hebrew transliteration. Any mistake in the writing of the names, location, or date, or any of the other verbiage of the standard text of the get, could lead to the invalidity of the get.
Since the laws of commissioning, writing, and delivering a get require special expertise, a qualified Beth Din (rabbinical court) is typically needed to oversee the get process. The Beth Din of the Chicago Rabbinical Council officiates between fifty and one hundred get cases a year, spanning all Jewish denominational groups, including unaffiliated Jews.
The Chief Rabbinate of Israel publishes a registry of recognized rabbinical courts for get cases, which includes the Chicago Rabbinical Council and various other rabbinical courts throughout North America. Performing a get through a recognized rabbinical court ensures worldwide acceptance of the validity of the get and the permission for the parties to remarry according to Jewish law.
If a Jewish woman remarries without a get, her relationship is viewed as adulterous according to Biblical law. Any offspring from the second marriage would be viewed as presumptively illegitimate, thus restricting their ability to marry freely within the observant Jewish community. Similarly, if a Jewish man marries without a get, his second marriage would be viewed as polygamous, in contravention of rabbinic law.
Therefore, from a practical perspective, neither the husband nor the wife would be permitted to remarry in an observant Jewish marriage ceremony unless they have first obtained a valid get. It is thus advisable that a Jewish couple obtain a get to secure their own futures and to protect the welfare of any future born children.
Getting the Get
Contrary to popular misconception, a get may be performed prior to the conclusion of the civil divorce. Although under civil law a couple is prohibited from remarrying until they have obtained their civil divorce, they may get divorced according to Jewish law prior to that time. In fact, it is often prudent for a couple to conclude their get as soon as their marriage is functionally over. Otherwise there is a chance that the get will be forgotten at the end of the civil divorce proceeding or that one spouse may withhold the get from the other if the divorce proceedings turn out to be particularly acrimonious.
The procedure for scheduling a get at the Chicago Rabbinical Council is designed to be easy and simple for the parties. One of the spouses contacts the Beth Din office to open a get file. The Beth Din secretary records basic information regarding the parties’ contact information, date of marriage, and previous marital history. Even if the parties were only married in a civil marriage ceremony, a get is still required. The rabbinical court will then follow up with both parties to schedule a date for the get.
Both parties are generally present for the writing and delivery of the get, which takes about sixty to ninety minutes. However, in the event that the parties, for logistical or emotional reasons, prefer that the get be delivered to the wife by an agent of the husband, the Beth Din will schedule different times for the husband and wife to appear before the Beth Din in order to effectuate both the initial appointment of the agent and the subsequent delivery of the get by the agent in the presence of the Beth Din.
When the Husband Refuses to Give a Get: “Agunah” Issues
One of the most vexing challenges is when one spouse refuses to cooperate with the get process. Most commonly, the recalcitrant spouse is the husband. In such a case the wife is generally referred to as an “agunah,” a woman who is chained to a nonfunctional marriage because the husband refuses to grant her a get. Accordingly, rabbinical courts have worked diligently over the ages to enact measures to ensure compliance with the giving of the get.
One such successful measure to counteract agunah situations has been the promulgation of the Rabbinical Council of America’s halakhic (Jewish law) prenuptial agreement, which is signed by both spouses prior to their marriage and requires them under both Jewish law and civil law to appear before the Beth Din if the other spouse requests a get. The agreement also mandates the payment by the husband upon the wife’s request of a daily amount of support (currently calculated at $150 a day, to correspond to a reasonable cost of living allocation) so long as the parties are still married according to Jewish law, thus providing an incentive for the husband to give the get promptly when there is no reasonable chance for reconciliation. The enforceability of the halakhic prenuptial agreement has been upheld by the courts (Light v. Light, No. NNHFA124051863S, 2012 WL 6743605 (Conn. Super. Ct. Dec. 6, 2012); see also Lang v. Levi, 16 A.3d 980 (Md. App. 2011).
In addition to the halakhic prenuptial agreement, some states have attempted to enact legislation to discourage spouses from failing to cooperate with the get process. In New York, there is “Get law” legislation (N.Y. Dom. Rel. Law § 253) that requires a spouse who files a divorce action to file an affidavit that he or she has taken all requisite steps to remove any “barrier to remarriage,” all requisite steps being defined as essentially cooperation with respect to the giving and receiving of a get for couples wed in a Jewish marriage ceremony. Subsequent legislation (N.Y. Dom. Rel. Law § 236), dubbed “the second Get law,” also authorizes a judge to award a higher degree of maintenance or a greater share of the marital assets to one spouse if the other spouse fails to remove barriers to remarriage.
Interestingly, certain rabbinic authorities have expressed discomfort with the second Get law in New York State because of the possibility that it could engender a coerced get, which would be invalid according to Jewish law unless deemed appropriate by a Beth Din. One resolution from a Jewish-law perspective is for a party to invoke the provisions of the second Get law only when specifically authorized to do so by a Beth Din. I have been involved in several such cases.
The Marriage Contract, or “Ketubah”
One question that frequently arises in Jewish divorce proceedings is the scope and applicability of the “ketubah” (the Jewish marriage contract signed at the wedding). Although the ketubah does not make specific reference to the obligation of giving a get at the conclusion of the marriage, at least one court has ruled, in In re Marriage of Goldman, 196 Ill. App. 3d 785 (1990), that the words in the ketubah that state “be thou my wife according to the laws of Moses and Israel” constitute a commitment on the part of the husband to give his wife a get upon the dissolution of the marriage. The Goldman court relied in part on the testimony of Rabbi Gedalia Dov Schwartz, the Chief Rabbinical Judge of the Chicago Rabbinical Council at the time, that a get was indeed warranted in that case according to the laws of Moses and Israel.
The main provision of the ketubah is the stipulation that the husband obligates himself and his estate to pay the wife a certain sum of money upon divorce or his death. In one reported case, In re Estate of White, 356 N.Y.S.2d 208 (N.Y. Sur. Ct. 1974), the wife brought a court action to collect the ketubah amount following her husband’s death. However, the court ruled that the ketubah amount of 200 zuz of silver (generally calculated as the value of approximately 960 grams of silver) is such a paltry sum by today’s standards (as of this writing, it would be around $500; it was worth considerably less in 1974), that it is not intended to be taken seriously as a legal obligation.
The court in that case failed to recognize that there is an additional sum in the ketubah of 200 zekukim of silver, which was evaluated by Rabbi Moshe Feinstein, the most esteemed rabbinic authority of the late twentieth century, as the equivalent of 100 pounds of silver (roughly 45.5 kilograms), a much more significant sum worth over $20,000 as of this writing (for second marriages, the sum would be 100 zekukim, or half that amount). Nonetheless, in practical terms, it is probably unrealistic to expect a civil court to make these types of calculations, especially since there are conflicting Jewish law opinions regarding how to calculate the ketubah amount. Also, as Rabbi Feinstein noted, most divorcing couples settle and negotiate their monetary differences without resort to the amount stated in the ketubah.
Arbitration of Jewish Divorce Issues
Typically, if a couple settles all their divorce issues through mediation or negotiation outside of the Beth Din, the Beth Din’s role in the divorce is limited to the get process. Thus, even if the wife brings a claim for the ketubah, it is unlikely to be recognized by the Beth Din if the wife already waived any additional claims against her husband in a comprehensive marital settlement agreement.
However, there are occasions when a couple will bring all aspects of their divorce to the Beth Din for adjudication, including the collection of the ketubah. They may sign an arbitration agreement to this effect at the time of divorce, or they may include such a submission in their halakhic prenuptial agreement. In fact, under Jewish law, a Jewish couple is technically required to bring any matters of litigation in front of a Beth Din, rather than to a civil court, although they may of course mediate their disputes outside of the Beth Din.
When parties submit to the Beth Din for an adjudication of their divorce issues, the Beth Din serves as an arbitration tribunal under civil law. As such, its decisions are enforceable under civil law in the same manner as any court of competent jurisdiction. This principle was affirmed in the New York State Court of Appeals case of Avitzur v. Avitzur, 58 N.Y.S.2d 108 (1983), in which the court upheld an arbitration clause in the parties’ ketubah to resolve disputes in front of a named Beth Din.
Accordingly, in a case where the parties agree to submit all divorce disputes before the Beth Din, the Beth Din may adjudicate all aspects of the divorce, including any claim for the ketubah or other spousal support, division of marital assets, child support, and parenting arrangements for children. While the Beth Din has the authority to divide assets and rule on spousal support in accordance with principles of Jewish law, it may also consider customary practices regarding equitable distribution, particularly if the Beth Din determines that the parties intended, either explicitly or implicitly, to conduct themselves according to such principles. In addition, the Beth Din, as a public policy matter, is required to consider statutory child support guidelines in fashioning any award relating to child support so that its decision regarding child support will be enforced by the courts. The Beth Din may, however, incorporate other factors, such as the need to pay Jewish day school tuition, in rendering its final decision.
In certain jurisdictions, a court will not enforce an arbitration award regarding child custody and visitation matters based on the parens patriae principle (that only the court can make determinations regarding the best interests of the children). See, e.g., Glauber v. Glauber, 600 N.Y.S.2d 740 (N.Y. App. Div.1993). When hearing custody cases in such jurisdictions, a Beth Din will essentially engage in “collaborative arbitration,” working together with the parties and their attorneys, in conjunction with child therapists and other childcare experts, to arrive at a decision in the best interest of the children that the parties’ attorneys will agree to incorporate in a marital settlement agreement. In other jurisdictions, a court will give greater deference to the decision of the Beth Din regarding custody issues so long as the Beth Din maintains an appropriate record demonstrating the basis for its decision. See, e.g., Fawzy v. Fawzy, 973 A.2d 347 (N.J. 2009), Johnson v. Johnson, 9 A.3d 1003 (N.J. 2010). Obviously, a Beth Din, like any arbitration tribunal, needs to be cognizant of the legal requirements of its local jurisdiction in fashioning an effective arbitration decision.
Professional and Ethical Considerations
When dealing with cases of Jewish divorce, legal practitioners should advise their clients about the Jewish law requirement for a get, as well as the various arbitration options for the parties to appear in front of a Beth Din. At the very least, the parties should be made aware of the importance of obtaining a get and the value of doing so early in the process. Additionally, if attorneys are assisting Jewish parties with prenuptial agreements, they may want to advise the parties about the possibility of incorporating halakhic prenuptial agreement clauses that require each spouse to appear before a reputable Beth Din at the request of the other spouse if there is ever a need for a get. Information regarding the halakhic prenuptial agreement, including clauses to be incorporated into a comprehensive prenuptial agreement, can be obtained at www.crcweb.org and www.bethdin.org.
Finally, as an ethical imperative, it is never proper for an attorney to advise a party to withhold a get in order to achieve a greater bargaining position in the course of a divorce. There is no legitimate basis to disadvantage a divorcing spouse because of her or his adherence to religious principles. Withholding a get is fundamentally a deprivation of the right to marry and is an abhorrent practice. Attorneys representing a client in a Jewish divorce should not only ensure that their client obtains a get but also that their client cooperates in furnishing a get to the other spouse. After all, the predominant principle in matters of Jewish law is that (Proverbs 3:19) “the ways of the Torah are pleasant, and all of its paths are peaceful.”