Sunday, August 20, 2023

Tamar Epstein Heter: A lawyer in family law discusses mental disorders and divorce

Guest Post

I had a few thoughts about the recent scandal involving a married woman who was allowed to marry another man without having received a get
 
A word of introduction about my concern and involvement in the case: I am an attorney practicing family law, almost entirely in the religious/haredi communities, although I have non-religious and non-Jewish clients as well. L’affaire Kaminetzky, therefore, has major ramifications for me, on a professional level. 

Regarding the halachic issues – I’ll leave them to the dayanim and poskim to decide. As for the broader communal ramifications of allowing people to remarry without a get, the leaders of the respective Jewish communities will make their voices heard. I would like to present a few remarks from the perspective of a layman who has dealt with divorce as a legal professional. A word of caution: my comment here is not based upon scientific literature or academic studies, but, rather, on the many, many couples I have dealt with.

The underlying theory of the “psak” written by Shalom Kaminetzky is that the husband suffered two separate mental “illnesses” and that, taken together, the two “illnesses” are a “מום גדול,” a great defect.

This is all based upon a naïve and simplistic assumption about why people get married – and when and why they stay married. Marriage is mysterious: some couples stay together despite a spouse’s having serious personality flaws – and even disorders. Let’s take the example of a narcissist. While being married to a narcissist can be a nightmare for most people, there are some people that not only can deal with being married to a narcissist but actually seek out such people. We might be correct in saying that someone married to a narcissist is unhealthy, codependent, or self-destructive, but this doesn’t change the fact that the person is willing to remain with the disordered spouse.

A related point is that there are people who almost appear to seek out a disordered spouse or a spouse with what we might consider negative character traits. As absurd as this might seem, I have seen clients on a second or third marriage, where they married the same type of disordered spouse in each case – and in each case, it was the disordered spouse that wanted the divorce. One client in particular comes to mind: he was married to a woman with Borderline Personality Disorder (BPD), who, after 4 kids and many years of marriage, sued for divorce. His next wife also had BPD – and he was, and is, happy to stay with her.

Human behavior and relationships are incredibly complex and can rarely be distilled to statements like “no one would have married to such a person.” People do get into relationships with flawed partners – and often stay with them, flaws and all.

My observations might appear to contradict the entire theory of מקח טעות, and, as a consequence, go against the basis for several teshuvos in the response literature. However, it should be pointed out that most of the flaws mentioned impeded the consummation of marriage (impotence or homosexuality). There are teshuvas about a husband with mental illness, yet - at least from the descriptions in those teshuvos - it appears that the illness made the marriage impossible, not simply difficult or not enjoyable.

Since I am not a posek, I will leave it to the our halachic authorities to decide if and when מקח טעות can form the basis of allowing a woman – or man – to marry without a get. In any case, it would be tragic to rely on views of marriage, predicated upon untenable assumptions, that purport to state objective claims about relationships.

6 comments :

  1. As a side point, in the Tamar case the alleged mental health disorder was determined by an "expert" who did not diagnose the husband but rather based it on a conversation with the divorce-seeking wife who fed him information for disorder finding. And the husband was afforded no opportunity by the mental health "expert" to answer, address or refute the information the wife fed him about himself.

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  2. We must be fair to AF and point out that there are a number of people who feel that they have a strong incentive to help TE. This suggests to me that it is very likely that AF is perfectly normal person without any personality disorder whatsoever. This view was confirmed by TE in the Baltimore Beis-din. It is understood that he did not enjoy social life but this may well be a result of the sort of people introduced to him. Judging by TE behavior it may well be that he was not able to choose his own friends so he became 'shy'.

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  3. In other words, this posting touches on one of the sticking points which Rav Moshe Feinstein himself was aware of. That is the presumption of:
    "טב למיתב טן דו מלמיתב ארמלו"

    This is an Aramaic phrase that appears in several places in the Gemara in the name of Reish Lakish, stating, that women would prefer to be married and live in the company of a husband, even if he has various defects, in appearance, health or behavior, rather than remain like a widow living alone.

    Based on this presumption, we assume the woman agreed to marry despite the drawbacks that this marriage, because the very being married is important to her so much that she was willing to forgive the many other things.

    This Gemara is the very reason the poskim quoted by R' Moshe, rejected the concept of מקח טעות in marriage.

    According to Rabbi JB Soloveitchik, this presumption has no connection to the field of psychology or sociology, nor does it reflect the social status and political situation of women in ancient times. Rather this reflects a metaphysical reality which belongs to all times and places. It is not the result of an inferior status of women, it merely notes a fundamental distinction between a woman's personality and a man's personality. They spinster's life much more miserable and tragic, than the life of an old bachelor. That was true in ancient times, and this is still true in the present, and this will be true in a thousand years from now.

    https://he.wikipedia.org/wiki/%D7%98%D7%91_%D7%9C%D7%9E%D7%99%D7%AA%D7%91_%D7%98%D7%9F_%D7%93%D7%95_%D7%9E%D7%9C%D7%9E%D7%99%D7%AA%D7%91_%D7%90%D7%A8%D7%9E%D7%9C%D7%95


    לדעת הרב יוסף דב סולובייצ'יק חזקת "טב למיתב טן דו" איננה קביעה היסטורית, השייכת לתחום הפסיכולוגיה או הסוציולוגיה, הנתונה בתקופות שונות לשינויים , אלא יש להתייחס אליה כעמדה על-היסטורית מטאפיזית, השייכת בכל הזמנים ובכל המקומות.



    אשה מעדיפה לחיות בשניים, מאשר לבד. לחזקה זו אין כל קשר עם הסטטוס החברתי והפוליטי של האשה בזמן העתיק. אין החזקה בנויה על גורמים סוציולוגיים. זהו פסוק בבראשית: 'אל אישך תשוקתך'. זו היא קללה מטפיזית מוטבעת בשורש האישיות הנשית. האשה - כשהיא בודדה - סובלת ללא השוואה יותר מהאיש... וזה לא ישתנה לעולם - 'כימי השמים על הארץ'. אין זו עובדה פסיכולוגית אלא עובדה אקזיסטנציאלית. אין זו תוצאה של סטטוס נחות של האשה, אלא זה מתחייב מההבחנה היסודית בין אישיות האשה ובין אישיות האיש. חיי רווקה זקנה הם הרבה יותר אומללים וטרגיים מחיי רווק זקן. זאת הייתה אמת בזמן העתיק, וזו עדיין אמת בהווה, וזו תהיה אמת גם בעוד אלף שנה מעכשיו".

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  4. Catskill1,
    Are you disagreeing with a "Gadol"? Isn't that the biggest sin in the Torah?

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  5. Clearly, the husband wasn't going to spend time or money or be degraded by going to a therapist to make it easier for his wife to divorce him.

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  6. Question about your observervation, not a professional, legal, or halachic question.

    When you say you often observe a spouse willing to put up with narcicism, would you say the reason is the spouse is unwilling, hesitant to go through a divorce, date again, lose the companionship, lose access to children, etc. (A consideration usually attributed to the 'henpecked husband'.)?

    There are many secular couples who calculated they cannot afford a divorce, so they stay together. This is very very rare in the orthodox community, all types of orthodoxy.

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