Confronting the problem of Orthodox divorce

When I began practicing law more than four decades ago, divorce in the Los Angeles Orthodox Jewish community was rare — and the giving of a get (Jewish divorce) by the husband was quietly arranged in the local rabbi’s study without fanfare, creating only a few social ripples in the fabric of a close-knit community. Get refusal, or get extortion was almost unknown. (One blatant exception was when a rabbi’s son was finally forced to give a get after eight-plus years of recalcitrance, but only after he was allegedly beaten and thrown into a newly dug grave in New York, whereupon he “willingly” gave his wife a get).

While I was generally aware that a Jewish marriage was not dissolved by a secular divorce until the husband gave the wife a get and freed her to remarry, the possibility of a husband withholding a get and leaving the wife an agunah (a woman chained to a dead marriage) was not something that occurred in my law practice until several years after I opened my office in 1972. 

[Related: Till get do us part]

Around 1976, I began receiving an increasing number of cases where husbands refused to give a get for vengeance, or to extort money, property or even custody rights to their children, in some cases whom they may have molested. The result was taking into consideration the grave threat of forcing a woman into a state of agunah if the civil case did not proceed as the husband demanded. I quickly learned that under Jewish law, by virtue of “acquiring” a wife, the husband also had unfettered rights to keep her chained to him until he decided to free her, or until his death could be verified. This gave power to the abusive husband to prevent the wife from ever remarrying or having children with another man, even when he himself remarried and had children in his new relationship.

This imbalance in power afforded the husband creates numerous problems in affecting a civil divorce settlement or judgment, as well, because no amount of legal creativity can force the husband to free the wife from the Jewish marriage bonds. Get refusal and get extortions became so much a part of the Orthodox divorce scene that, being the only family-law practitioner in Los Angeles who also knew the intricacies of the Jewish divorce law, I was compelled to write legal articles, train lawyers and judges to watch out for the problem, and create some solutions. 

The delicate balance of the civil law rights to equal property division, as well as spousal and child support and custodial determination, was constantly being jeopardized by a husband’s threat to withhold the get and leave the wife an agunah. I often felt like I was walking a religious tightrope, where any misstep could doom my client.

There are many highly legitimate reasons for a woman to want a divorce that even the most traditional families can accept: marriage to a man who is physically or emotionally abusive or who molests children, or who is discovered after marriage to be homosexual, or who is an adulterer, or who remarries without giving his wife a get, or who disappears, just to name a few. Yet, in an Orthodox marriage, a man marries his bride via a kinyan (an acquisition), and he essentially possesses her until he decides to free her by giving her a get, which, by Jewish law, he must give willingly and without coercion. 

If the marriage is legitimately Orthodox, not even the rabbis can free a woman from her marriage — only the husband can. A woman who remarries without a get from her former husband is deemed an adulteress, and the result is that her children — and all progeny from her subsequent relationship — are punished, deemed mamzerim. 

The word mamzer is often loosely translated in English as “bastard” or “illegitimate,” but it actually signifies a child from an incestuous relationship. Jewish law does not recognize the concept of “illegitimacy,” so children of an unmarried Jewish woman, for example, are considered legitimate and can freely marry other Jews, but a mamzer is forbidden to marry anyone except another mamzer. This Jewish law remains very much in practice among today’s Orthodox Jews. I have been presented with a number of cases where young people who are about to marry Orthodox suddenly discover they cannot because they were fathered by a man their mother married without having obtained a get from her former husband. In Israel, the rabbinate even keeps a record of known mamzerim to prevent accidental illegitimate marriages into the Jewish community. 

The converse, however, is not true. A man who fathers children with another woman without giving a get to his first wife does not beget mamzerim — his children remain legitimate and able to marry other Jews. That is simply because, biblically, a man was allowed many simultaneous wives, and the subsequent rabbinic prohibition of polygamy does not prevent the legitimacy of the husband’s remarriage. 

While there are other intricate Jewish divorce and marriage laws too numerous to mention here, it is worth noting that there is no reciprocity, because while a woman can refuse to accept a get from her husband, this power is illusory because neither the husband, nor his children, would suffer any consequences if he remarries without his first wife’s acceptance of the get. Additionally, men can always avail themselves of the law of heter meah rabbanim, “the release by 100 rabbis,” that allows him to remarry despite the failure to legitimately end the first marriage. Such a heter is not available to a woman. The most recent example of this is the well-publicized refusal by an Orthodox man, Israel Meir Kin, to give his first wife a get, even though he married another woman on March 20 in Las Vegas, and no amount of public condemnation from members of the Orthodox community prevented him from doing so.  Thus, Kin’s first wife languishes in limbo, unable to remarry or even to date, while her husband proceeds happily with his new marriage, which was performed by an Orthodox rabbi.

These cases of get extortion or get refusal were so rare 50 years ago that they were only whispered about, like the word “cancer” during coffee klatches. But they are now a burgeoning industry. Even the great-grandson of the revered Rav Moshe Feinstein (the great rabbi whose liberal decrees helped free women to remarry when they couldn’t physically prove the deaths of their former husbands in the Holocaust) refused to give his young wife a get for many years, holding her captive to his demands for hundreds of thousands of dollars from her family until she exposed this travesty in the New York Post a few months ago. 

On International Agundah Day last year, I participated in a panel discussion held in Los Angeles and sponsored by Get Jewish Divorce Justice Inc. More than one-third of the 100-plus attendees acknowledged having family members or close friends who have either been refused a get or have been extorted for their right to freedom from an abusive Orthodox marriage. It was sickening to hear of women whose husbands demanded millions of dollars from the family; rabbis who shamefully participated in “bargaining” for the amount the husband would accept for the get. A growing industry of physical coercion (the only halachic, albeit criminal, means of forcing a man to “freely” grant a get to his wife) has gained worldwide attention with the recent arrest by the FBI of Rabbi Mendel Epstein, who is accused of hiring thugs to threaten the use of electric cattle prods on the private parts of recalcitrant husbands. A recent survey in Israel revealed that at least two-thirds of married women are fearful that asking for their legitimate share of property or custody of their children could leave them in marital limbo, because their husbands can refuse to give a get. (This is despite the fact that the Israeli rabbinate can lift the driver’s and professional licenses of recalcitrant husbands, or even jail them to coerce a get, though it rarely avails itself of this power).

Numerous solutions have been advanced to counter this problem. Currently popular is the “prenuptial agreement,” which is really an arbitration agreement, granting power to the beit din (Jewish court of law) to decide whether the husband should give his wife a get, as well as to impose a daily support amount he owes her for as long as they are separated and he fails to give a get. While some approaching marriage shy away in horror at the idea of anticipating a possible divorce via such an arbitration agreement, the 2,000-year-old ketubbah — regardless of its artistic presentation — is itself already a prenuptial agreement that specifies the husband’s monetary obligations to his wife in case of divorce or his death. The “arbitration agreement” is nothing more than a monetization of the husband’s obligation to give his wife a get and the wife’s obligation to accept it.

But even this is not a panacea, because, among other shortcomings, it fails to insure a woman’s freedom should the husband not care about the penalty, either because he is too rich or too poor, or if the husband disappears, is mentally disabled, or if he dies without heirs but leaves behind a brother who refuses to free the hapless widow from the levirate marriage requirement (requiring that she should marry her brother-in-law). 

Another agreement, the tripartite agreement, essentially annuls the marriage should the husband refuse a get if the couple has lived separately for at least15 months (the children of such annulled marriages remain legitimate in Jewish law). While this agreement is probably the best antidote to an agunah problem, it is largely unknown and rarely used because Orthodox rabbis have been taking years to rally around its legitimacy. (I always recommend signing both the arbitration and tripartite agreements — like chicken soup, it can’t hurt.)

In the meantime, every Orthodox marriage ceremony remains fraught with the possibility of entrapping a woman in a dead marriage from which she cannot escape without her husband’s consent. There is a secret not many rabbis will acknowledge, but which is well-known and whispered in increasingly louder chorus in the agunah-activist community: Currently, the only failsafe solution to preventing a woman from becoming an agunah is to prevent the marriage ceremony from being deemed Orthodox. In other words, to prevent the kinyan of the bride. As long as there is a “flaw” in the Orthodox ceremony, such as unkosher witnesses or a double-ring exchange, etc., the power of the husband over the wife is never acquired, and a get becomes superfluous. The children of that marriage will still be deemed legitimate under Jewish (and civil) law, and the marriage deemed valid under civil law (assuming it is done with a civil marriage license), but the bride will not become the acquisition of the groom, and thus he cannot exercise a power over her that an Orthodox ceremony grants him.

I do not advocate this draconian solution lightly. I have an Orthodox background, and I am proud of my pedigree as an alumna of both the ultra-Orthodox Satmar Yeshiva (Bais Rachel) in New York and Bais Yaakov School for girls both in New York and in Los Angeles. My own marriage ceremony was attested to by 10 ultra-Orthodox rabbis. Our son was raised Orthodox, and he attended Orthodox yeshivot until his graduation from high school, and we are continued members of an Orthodox synagogue.

 It is probably because I know the community from the inside, and because I understand the angst such a drastic recommendation will engender, that I speak out now to condemn what I have increasingly witnessed as blight on the community, and the danger to its daughters. 

I have been vilified, cursed, disdained and worse because I, together with a number of agunah activists, have dared to voice opposition to Orthodox ceremonies that entomb the wife and vocally excoriate rabbis for their impotence or unwillingness to permanently obtain foolproof solutions to free a woman from a dead Orthodox marriage. Conservative marriages do not encounter this problem, as Conservative rabbis are empowered to annul marriages where the husband refuses to give a get, yet Orthodox rabbis who have bravely advocated similar solutions have been condemned and marginalized by their rabbinic brethren. 

Until Orthodox rabbis have the courage to come up with permanent and legitimate solutions to eradicate this problem, there is only one way parents can definitively inoculate their daughters against this epidemic and assure them they will not be locked away in limbo at the mercy of their husbands: Do not allow them to marry in an Orthodox ceremony.

Alexandra Leichter is a partner in the law firm of Leichter Leichter-Maroko LLP and is a California State Bar Certified Family Law specialist. E-mail: Contact@LLMFamilyLaw.com