Wednesday, November 25, 2015

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.

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