Taking the Matrimonial Bull by the Horns for Jewish Divorcees

Laws that already exist can also be utilized to prevent agunot, women chained to their marraiges.

It seems that most of what we hear today regarding agunot is what cannot be done. From heads of yeshivot to the regular person on the Internet, organizational announcements, blog posts and Facebook statuses are filled with what is wrong, unacceptable and dangerous about freeing Jewish women chained to their marriages.

Doors are closed before they can even be knocked on, and many women have nowhere to turn.

The lack of options has led Jewish women to the national media to plead their cases. The stories of women trapped in marriage have been spread across the pages of American publications such as The New York Post, Newsweek and other mainstream media. Unequal divorce laws in Judaism have become common knowledge, yet it still seems that there is no way out in Jewish law when a man refuses to grant a get.

Martin Friedlander of Martin Friedlander PC is a matrimonial attorney whose office is located in midtown Manhattan.

He appears regularly in the US Supreme Court and family courts, as well as in religious courts (batei din) for Jewish divorce cases. He is not only an attorney but also has rabbinical ordination (smicha) from Rabbi Avrohom Yaakov Hakohen Pam. What he has seen in his more than 20 years of handling divorces has prompted him to take action.

It was during the Tahel – Crisis Center for Religious Women and Children’s conference in Israel last year that Friedlander conceived Yashar. The conference presents research information and trains professionals in treating different forms of abuse, including get refusal. At Tahel, Friedlander met other matrimonial attorneys from around the world, and they quickly recognized a common desire to find ways to prevent get refusal.

Last June, he held preliminary meetings to present his vision of Yashar in his law office. In attendance was Tahel director Debbie Gross, prominent attorney Nat Lewin and other matrimonial attorneys interested in the coalition. Frustrated with what they regard as an unfair situation, the international group came together to do what they can to change the status quo and provide concepts within the secular court that would be approved by halachic authorities.

Unlike in Israel, courts abroad have no authority to punish a husband who refuses to grant a get or a wife who is unwilling to accept one. In fact, a couple can be civilly divorced, yet remain halachically married. This leads to a very difficult situation in which the get can be used to extort money, settlements, custody or inflict emotional pain on a spouse.

In addition to agreeing to not represent those who withhold a get, the organization has two main objectives. The first is to pursue a prenuptial agreement that would be accepted by a wide spectrum of the religious community and be approved by attorneys and rabbis. The second is to exchange ideas on how to use various laws worldwide as they pertain to agunot within both the religious court and the civil court and try to implement ideas that have been successful.

Many versions of a halachic prenup already exist, including one used by the Rabbinical Council of America; however, none is deemed acceptable by the more right-wing sects of Judaism. Friedlander has been working with community leaders to create a document that would be encouraged and effective within these communities. Having rabbinic ordination himself, he is aware of the potential objections and pitfalls and works within the halachic system to draft this document.

When asked why, after all other attempts have failed to bring certain communities on board with a halachic prenup, these communities might be amenable now, he says, “The divorce rate among Orthodox Jews is fast approaching that of regular society. But the ramifications of one couple’s divorce goes far beyond the couple and their children.

Because the community is family based, it becomes a battle between two families, and the acrimony and litigation become larger than the couple. This leads to third-party involvement, and the get then becomes a bargaining chip. The current agreement of the community leaders is a product of awareness and acknowledgment that divorce and get refusal is a real problem. It’s just not deniable anymore, so people are becoming more receptive.

Friedlander speaks to heads of yeshivot and rabbinic judges, who are prominent and influential, to get them on board. Getting these leaders to support the idea and encourage prenuptial agreements is essential in making them mainstream. Friedlander estimates that a widely accepted and regularly used prenup could reduce the incidence of agunot by up to 80 percent in the US.

And what of the other 20% – those whose spouses hang on for reasons such as extortion, spite or control? That is where Yashar hopes to bring the law into play. Courts cannot force a man to give a get – even when they want to – as this is considered a get meuseh, a forced divorce, and is not halachically valid according to most rabbis.

Yashar seeks ways to use existing laws or suggests new ones to help in cases of get refusal. An example of legislation created specifically to help agunot is New York’s Get Law, which states that a court will not grant a civil divorce when a Jewish divorce is being withheld.

Laws that already exist can also be utilized to prevent agunot. In one case in New York, a man ran off leaving his wife and children behind with no get.

The court could not arrest him for refusing to give a get, but the judge was able to order a substantial child support award, and the man was arrested when he did not pay. He was held until he gave his wife a get; she then released him of the exorbitant child support.

At this year’s Tahel conference, held a few weeks ago in Jerusalem, Yashar’s coalition was introduced. Lawyers from around the English-speaking world gathered and presented the various laws in their countries that protect agunot.

Esther Schonfeld of Schonfeld and Goldring spoke about amended New York laws regarding maintenance and equitable property distributions. The default status in New York is that property is split 50-50; however, if either side puts up a barrier to the other party’s remarriage, including a religious one, they risk losing their share.

According to Schonfeld, “We deal with this on a daily basis. In Kings County, the law has been applied in many decisions. In the past three decades that the Get Law has been on the books, it has nudged hundreds of men and women to go through the religious divorce process.”

But does the Get Law work? According to Goldring, it helps settle cases before or in the heat of litigation, with the law taking away the control the husband usually has. The marital estate, which includes retirement accounts, businesses and the family home, are usually divided on a 50-50 basis. The husband can’t use the get to ask for more than that. If he has not removed barriers to remarriage, he will not be able to receive anything.

One hotly litigated divorce case involved child custody, fees and property.

The husband refused to give a get. The court granted the wife the entire estate, including a house worth several million dollars. The man eventually did grant the religious divorce.

In a more recent case, the husband was plaintiff and had told his friends that he would not give a get. It was explained to his lawyer that they would invoke the Get Law. His attorney told him to grant it, and together with community pressure, it worked.

Canadian law states that if someone hasn’t removed religious barriers to the ex-spouse’s remarriage, they will have their claims dismissed or pleadings struck. If the husband gives the get, his pleadings will be reinstated. However, the religious court in Toronto does not like this law and will not allow a husband to grant a get if the reason is the civil court.

Sharon Shore, a partner at Epstein-Kohl in Ontario and frequent speaker on family law issues, explained that religious courts that object to these laws claim that they render a get invalid because of coercion.

But, she says, “Coercion isn’t the problem – it’s who is doing the coercing.”

If the Jewish community coerces a recalcitrant husband via public pressure, the get will stand.

It is within the religious court’s power to torpedo a woman’s options if it chooses. In one case, Shore had a client from the Bobov community, and the husband said he would give her the get only if she gave up custody and property. She signed the agreement and planned to go to civil court, but the religious court then withdrew her religious dispensation (heter) to go to civil court. It was too late for her – she had given up her children and all her money.

In Canada, because there is no separation of church and state, divorce must go through an arbitrator; thus the Rabbinical Council of America’s halachic prenup does not work. Yashar is working with RCA executive committee member Rabbi Michael Whitman to create a prenup for Canada, and they hope to launch it by the end of this year.

The UK has passed a law called the Serious Crime Act of 2015, which essentially considers get refusal a criminal act – psychological and emotional domestic abuse. According to Dianna Levine of the UK, “It’s the most amazing piece of legislation yet.”

In Australia, prenups are not easy to create or enforce, but a creative and groundbreaking case by Talya Feigenbaum led to get refusal being considered domestic violence and grounds for extension of orders of protection that may be expiring. The withholding of a get is shown to be continued dominion and control by the husband.

These laws and the efforts to use them to release women from dead marriages are inspiring. It brings hope to those who see the agunah issue as a crisis in modern Judaism.

But for those who have advocated for the rights of agunot for years within the Jewish community, it is difficult to see that instead of wide-ranging solutions coming from rabbinic leadership, it is the secular courts that are finding creative ways to free women.

Queen Esther might be seen as the original agunah, stuck in a marriage she did not want, with no one able to free her. How ironic, then, that the words Mordecai said to her when she hesitated to go before the king (some say this voluntary approach to the king was her tacit acceptance of her marriage) were, “For if you remain silent at this time, relief and deliverance for the Jews will arise from another place.”

It seems that today Yashar and its band of heroic attorneys are the place from which many agunot will find their deliverance.