This article originally appeared as a column for the Cleveland Jewish News.
The issue of the agunah – a woman whose husband refuses to give a get (Jewish writ of divorce) that must be offered by her husband – has garnered a good bit of attention in Israel. Earlier this year, it was reported that the Great Rabbinical Court in Jerusalem upheld one man’s indefinite prison sentence. He has been imprisoned, and will continue to be imprisoned, for so long as he refuses to offer a get. As an aside, he has been in prison for more than 10 years.
In the United States, the issue was recently in the news in relation to Tamar Epstein, the nation’s most famous agunah. Separated from her husband, Aharon Friedman, tax counsel for the U.S. House of Representatives Committee on Ways and Means, in 2008 and civilly divorced in 2010, she remains even now “chained” to the man who refuses to grant her a get.
The issue is a bit controversial, with activists and nonprofit groups such as the Organization for the Resolution of Agunot calling get refusal a form of domestic abuse, while supporters of Friedman said they believe Epstein’s alleged alienating behavior in the associated custody dispute more than justifies his actions.
People have reasons for not agreeing to a get. Some refuse based upon their interpretation of their religious and moral obligations. Some refuse out of spite. Some are just plain nuts. But far and away the most common reason for get refusal is to provide leverage to obtain a better property and/or custody arrangement than civil law might otherwise allow. Documented cases show unscrupulous husbands refusing the get unless they get outrageously one-sided settlements.
Most problematic is what to do when a get is refused. Divorces fall under the purview of the state courts and, more specifically, the common pleas court in the county of the parties’ residence. But the strictly secular nature of the court system makes it difficult – if not impossible – for a court to order someone to submit to a religious divorce.
One of the easiest ways to obtain a get is to contract for it before the marriage. Put it in a prenuptial agreement. The law is continuing to evolve in this area, but even if a civil court cannot order someone to offer or accept a get, it may be able to enforce the terms of a contract in which two parties are bound to do these things.
Even better is to agree to submit a din torah (judgment) matter to the Beth Din of America. By agreeing to proceed in this manner, the parties can resolve all issues of the get – including financial and custody matters – through mediation. Mediation is a facilitated process of negotiation intended to reach a settlement in all areas of conflict between the parties. The Beth Din also permits the parties to submit to arbitration. In that situation, all issues in dispute (except for parenting) can be presented to a panel of rabbis, in lieu of a secular judge or magistrate, for a binding resolution.
The concept of a prenuptial agreement is controversial for many reasons, both religious and secular. On a personal level, it is uncomfortable to consider the possibility of divorce at the same time you are planning your happily ever after. On a religious level, many rabbis are hesitant to encourage their congregation to consider such agreements because they represent such a big paradigm shift from traditional marriage. However, on a practical level, if a get is important to you – and to your children – it is a wise alternative to avoid trouble down the road.
This issue is a unique one, but one of paramount importance to a woman who may become an agunah, her future spouse and children. And wishing won’t make it go away. The complexity of this issue extends far beyond scope of this column; however, prenuptial agreements like the Beth Din form would resolve a large number of agunot cases. And this document solves the issue in a very tangible way. With this document, get refusal can result in very real civil ramifications, including monetary penalties enforceable in civil courts.
*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.