No Fault divorce - a frum lawyer's perspective

Guest post by  Moshe Anwalt who a lawyer dealing with family law 

This deals with issues raised regarding the issue of whether women have a right to a Get on demand

 http://daattorah.blogspot.co.il/2015/12/chanukah-and-claim-that-woman-has-right.html

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Yesterday's post raised a key issue that deserves special treatment: Is it proper to have a divorce system where either spouse can exit the marriage without any consequences?

The idea of unilateral, no-fault divorce is a relatively new phenomenon, both as a legal standard and as a cultural norm. Western society frowned upon divorce and the legal systems required a judicial decision based upon a finding of fault in order to grant a divorce.

It is not surprising, therefore, that chazal and the later poskim created numerous obstacles to ending a marriage - ketubah and cherem, to name two examples.

In that way, the agenda promoted by "Agunah" advocates - will definitely in tune with modern mores and assumptions about the nature of marriage - goes against the grain of thousands of years of halacha, not to mention societal conventions that were held by Jews and non-Jews alike.

What is noteworthy, however, is not simply the novelty of the pro-divorce agenda, but the discriminatory fashion in which that agenda is applied, at least as far as gender is concerned.

The JOFA Guide

A clear example of this is the "Guide to Jewish Divorce and the Beit Din System," published by the Orthodox Jewish feminist organization "JOFA."  You can find the guide at: http://jofa.org/sites/default/files/uploaded_documents/beit_din_guide_0.pdf

While the guide is otherwise useful and presents an accurate description of the Jewish divorce process, it makes some startling statements about unilateral, no-fault divorce. On page 16, the guide defines an Agunah as follows:

"An agunah is a woman chained to a dead marriage. ... "

The guide goes on to argue that a get should always be done immediately and may not be used to improve the party's legal position in the settlement (page 18):

"It is wrong for either party to use a Get for leverage in divorce proceedings. As soon as it becomes clear that there will be no reconciliation, the Get should be written and delivered to the woman so that it cannot be used as a bargaining tool in financial or custody negotiations."

While this paragraph would indicate that JOFA looks askance at women who refuse to take a get, the guide actually clarifies that this is not the case and the wife - and only the wife - is entitled to refuse to take a get. The guide continues (page 10):

"7. ARE THERE CIRCUMSTANCES IN WHICH A WOMAN SHOULD REFUSE TO ACCEPT A GET?

... It may also be legitimate to refuse to accept a Get if the woman will be compelled to also accept an unconscionable settlement with regard to spousal and/or child support or custody. Another circumstance in which it may be recommended for a woman to refuse to accept a Get is a situation in which the Get is based on false allegations against the woman. ....

Note: The decision to refuse to accept a Get is a significant one and should only be undertaken with a great deal of forethought and in consultation with an attorney and a rabbi."

According to JOFA, there are four cases where a woman is well within her rights to refuse to take a get from her husband:

1) The wife is accused of "false allegations."

2) The woman will receive an "unconscionable settlement" with regard to spousal support

3) The woman will receive an "unconscionable settlement" with regard to child support

4) The woman will receive an "unconscionable settlement" with regard to "custody"

In scenario 1, essentially JOFA gives carte blanche to women to hold out and keep their husbands in a dead marriage.  As for the other cases where a woman is "justified" in refusing a get, JOFA concedes that the wife can use a get as a leverage.

Rivka and Avraham

To illustrate this, think of the following example (the names are completely fictional):

Rivka and Avraham live in a modest home in a suburban "out of town" Jewish community in the United States. Avraham is a successful saleman, while his wife is a well-known architect. After many years of marriage and all the children having grown up and left the house, Avrfaham has a run-in with the Feds, as a result of criminal activity in which Rivka was a minor participant. Rivka asks Avraham for a get and takes him to Beis Din, through a toen.

At the Beis Din, and after the parties sign a binding arbitration agreement (shtar beirurin), Reb Berl, the dayan, asks Avraham if he agrees to give a get, and Avraham responds in the affirmative.

As the Beis Din is about to set a date for a siddur get, Reb Berl tells the parties that they must be separated before the get is done - and must remain separated after the get as well. At this point, Rivka's toen tells the Beis Din that his client will not leave the house, even though she is the one who demanded the get. Rivka tells the dayan the the familial home is jointly owned and therefore she has a right to it. Rivka and her toen add that the house is worth $500,000 - a fact which Avraham stipulates to.

Avraham, who is well versed in both halacha and secular law, proposes that he buy out wife wife's share of the house. Rivka responds that she does not agree under any circumstances and that she wants to stay in the house, without having to but out Avraham's share.

Moreover, argues Rivka, she is entitled to post-divorce spousal support, as her income is slightly lower than Avraham's. Avraham rejects this and observes - correctly - that halacha does not recognize a right to spousal support after the get and that, under state law, the aware of spousal support is a matter of discretion and, given the circumstances, no judge would rule that spousal support is justified.

It is at this point that the dayan issues the following ruling:

1. Avraham will put $250,000 in escrow - immediately - for Rivka's benefit.

2. As soon as Rivka leaves the house, the escrow agent will transfer her the full sum.

3. Once the parties are separated, the Beis Din will set a date for a get.

4. Since both parties consented to get divorce, the wife is no longer entitled to spousal support. Nevertheless, after the get, the husband will pay 12 months payments, as payment of Rivka's kesuba (as per the opinion of the Chazon Ish), to the amount of $4,000 per month. While the wife is not entitled to the kesubah, the Beis Din sees fit to award the kesubah since Rivka's suit for divorce was based upon the criminal acts of Avraham, even though Rivka was aware of the criminal acts and even participated in them.

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Bracha is not happy with the ruling, despite the fact that it conforms to the halacha - and state law, since the parties had signed a binding arbitration contract. She approaches a local Rosh Yeshiva, Reb Baruch, and asks for his help. He writes a letter, on the yeshiva stationary, declaring Rivka an Agunah and calling for protests against Avraham for refusing to give a get. Additionally, the Rosh Yeshiva forbids Avraham for counting toward a minyan or receiving any honor in shul.

Reb Baruch further advises Rivka to take an attorney and go to secular court, with a motion to vacate the arbitration award and petition for spousal support.

Going back to the JOFA Beit Din guide, under the criteria delineated there, Rivka would be considered an Agunah - despite the fact that Avraham agreed immediately to give a get and did not seek to infringe upon any of Rivka's rights.

Since JOFA permits a woman to refuse a get if the settlement is - at least in her mind - unconscionable, Rivka was justified in refusing to accept the decision of the Beis Din. At the same time, since the marriage is "dead," Avraham is wrong not to give a get and he should be shunned for not doing so.

This story, while entirely fictional, is typical of divorce cases today - and it shows how the divorce standards being proposed by Agunah advocates lead to incorrect (and unjust) results.

The Double Standard

The double standard offered by such groups - and JOFA in particular - goes even further. Here is the Guide's advice (page 18):

"When someone is told that a woman refused to accept a Get, the listener must question whether and why the Get may have been refused prior to determining that the woman is simply recalcitrant. There may be valid reasons for a woman to refuse a Get. (See FAQs Section II:7.) One should refrain from premature judgments and gossip."

If we unpack that statement, we notice how far the double standard actually goes. While a husband can be criticized and ostracized without being heard, the wife is entitled to a presumption of innocence.

Summary

The opposition to no-fault divorce is absolutely rooted in the sources and there are many good policy reasons for not changing the rules, even where there is room for halachic flexibility. Chazal, in their great wisdom, understood that marriage is not to be tampered.  The current trend in Western societies to create intimate relationships without any mutual obligations is abhorrent to Judaism and it was precisely to avoid this breakdown that chazal created safeguards and set legal boundaries.

However, whichever side we take on the debate of no-fault versus fault divorce, we cannot apply the standards arbitrarily and treat husbands any different than wives. The public discourse has to be altered and the frame of the debate refocused - not just on blogs, but also in shuls and educational institutions. Once people (especially askanim and rabbanim) are more aware of the issues, they will, hopefully, display more sensitivity in dealing with self-proclaimed "Agunahs."