The New York State Get Bill and its Halachic Ramifications
Rabbi Chaim Malinowitz

The above problems, troubling as they are, pale in significance in comparison with the bill's effect upon the very validity of Gittin issued in the State of New York. The bill states, in effect, that a judge may, when determining maintenance and/or "equitable distribution", take into account the fact that a barrier to remarriage still exists, i.e., the husband/wife is not giving/receiving a Get. As originally understood by all, and, as the proponents of the bill intended, (judging by the outpouring of kudos from various women's organizations²⁸) this has the bottom-line effect of costing the spouse who is refusing to give/receive a Get a not inconsiderable amount of money, thus prodding him/her into acquiescence. Whether this is characterized as a penalty, an inducement, or as a practical way of dealing with a tragic situation is not relevant. The point is that a spouse's continued refusal can result in a substantial loss of money.

The need to give a Get or to face substantial loss of money, or the threat thereof, constitutes "coercion" according to Jewish law and, on a biblical level, invalidates a Get given as a result of such coercion. This requires some elaboration:

A most basic rule in Hilchot Gittin is that a Get must be given (and received by the wife, post-Cherem d'Rabbeinu Gershom) of one's own free will.²⁹ If the husband is coerced, the Get is invalid.³¹ The oft-quoted dictum kofin osoh ad sheyomar rotzeh ani -- "we coerce him until he states 'I want to"' -- applies only in cases when (a)specific grounds for that verdict exist, (b) the Bet Din renders a verdict of kofin (we force him), and (c) the coercion is carried out by the Bet Din or others implementing its verdict.

Various types of invalidating coercion include phvsical punishment³² physical restraint (jail),³³ monetary loss³⁴, or threats of any of the above.³⁵ Any of these coercive situations which brings about a Get without a verdict of kofin invalidates that Get. (Even in a case where the coercion is self-imposed, i.e., where the husband has willingy and legally bound himself to be penalized if he doesn't give a Get, the consensus of Poskim is that if he subsequently tells us that he is giving the Get only due to the penalty, he is viewed as being coerced -- by himself! In these cases, most authorities view his previous state of mind as now being an "external" force upon his present wishes, and hence coercive in nature.³⁶)

The halacha discusses many forms of invalidating coercions: in all these situations, by definition, there is no "free will." "Free will", it should be noted, is a legal halachic term - not what you or I might characterize as "he wanted to do it." If, for example, A threatens to do significant bodily harm to B unless B gives him something; we might say that given these circumstances, B certainly wants to perform that act; however, halacha does not view the motivation as free will, and the act is totally invalid, the result of an inalidating coercion. Conversely, a husband or wife may not "want" to get divorced - yet, realizing the marriage is over, agree to the Get. This represents no halachic problem at all, because if no coercion exists, ultimate acquiescence is deemed "free will".

Thus, if a husband/wife appears before a Bet Din stating that he/she wants to give/receive a Get, that statement, and any actions that follow in its wake, are totally meaningless if brought about by a coercive action or the threat of one. The statement "I want," even if true in a certain practical sense, is halachically meaningless as long as coercion exists. And since the Bet Din merely oversees the giving of the Get, its lack of knowledge of possible coercive circumstances obviously is not relevant. Therefore, if at any time in the future, (even after a subsequent marriage, G-d forbid) it becomes clear that a halachically-invalidating coercion existed, the Get is retroactively invalid!

As long as a coercive situation exists, the halacha assumes that "free will" does not. In such a case, any "will" which may exist on the husband's part would be deemed D'varim Sheb'lev Aynom D'varim (unperceived intentions are not recognized in Jewish law as having any legal standing) and hence halachically meaningless. Every Get procedure also contains in it a statement by the husband (and sometimes by the wife as well) nullifying any statement he may have ever made affecting the validity of the Get.³⁷ This is known as Bitul Moda'ot - the husband's nullifying any statements he may ever have made claiming he is under duress; obviously, Bitul Moda'ot is meaningful only if there is in fact no coercion! A Moda'a - statement of duress - would invalidate a subsequent Get even if no actual coercion existed.³⁸ For that purpose, the husband is told by the Bet Din to nullify any such possible statements. But his statement of "I want to give the Get" and his nullification of Moda'ot are meaningless if any coercion does exist!³⁹

Consequently, if a Get is given in circumstances where it is even just plausible that coercion is a factor, it would be under a cloud until its validity could be determined beyond any doubt. In other words, a Bet Din would have to make a thorough determination that no coercive situation ever existed. Such a task would be difficult if not impossible, due to the many subtleties and subjective factors which exist regarding halachic coercion - in certain cases, it might even depend on the character of the coercee!

Superficially, though, the Get Bill might be construed as "indirect coercion". Indirect coercion occurs when the party is being coerced for a different matter, and the giving of the Get can free him from that coercion. This is not deemed coercion on the Get, and hence the Get would be valid.⁴¹ In our case, it could be argued that the transfer of money from husband to wife in accordance with a court's ruling in a divorce proceeding is not a direct threat to produce a Get; rather, the husband's giving the Get will indirectly free him from having to pay that "extra" money. However, upon reflection, it is clear that this is not so. All Poskim agree that the above rule about indirect coercion applies only if the coercion for that "side matter" is in and of itself halachically justifiable.⁴² If, hovever, the coercion for that "side matter" is halachically not justifiable, then the coercion is tantamount to coercion directlv on the Get, and invalidates it.

Even if the equitable distribution aspect of the New York State law is a sincere attempt to have a woman in this situation be self-sufficient, that does not diminish the fact that "equitable distribution", especially in such a forum, has no halachic basis (see Section One). Also, there is no objective formula to determine a woman's actual needs and link them to her being awarded a specific amount of money. Furthermore, as we have explained, the maintenance award is halachically suspect as well: When a wife is a plaintiff in secular court demanding a divorce from her husband, until a Bet Din can determine the facts and the halacha, we must suspect, if not assume, that there is no halachic obligation for support. Although in many cases the woman may be entitled to support, the burden of proof before a Bet Din is upon her. In the absence of a Bet Din ruling that the husband must give her this money, we have, then, what is halachically deemed coercion on the Get itself. This situation, then, where the courts might decide to award a woman considerable alimony or "equitable distribution" money unless she receives a Get, is considered coercion according to Jewish law and might invalidate all Gittin given under such implicit threats.

For the first months after the bill's passage, the fact that the Get Bill created a coercive situation was vehemently denied. It was suggested that the wording "where appropriate" that appears in the bill refers to a Bet Din ruling that coercion is called for.⁴³ It was also suggested that monetary loss does not constitute an invalidating coercion. When confronted with clear-cut halachic rulings that it does, it was suggested that at least the part of the bill which deals with maintenance could be justified, since the husband, if no Get was forthcoming, is halachically obligated to support his wife. (This argument, as shown above, is also wrong.) In any event, no steps were ever taken to amend the bill so that it would deal only with maintenance, and not "equitable distribution".

Some of the bill's proponents claimed to be relying on a responsum from Rabbi Yitzchak Liebes, Sh'lita, (written many years ago) that seems to validate a Get given in such circumstances (not dealt with are the problems raised in Section One.) It was never publicized that (a) In Rabbi Liebes' case there was a clearcut Bet Din verdict that the husband was obligated to divorce his wife (the Get Bill has no such qualification) and (b) Rabbi Liebes, realizing the innovative ruling he was propounding, (that monetary penalties of this nature might not invalidate a Get a person was obligated to give, even in the absence of a verdict of kofin) concluded his responsum by stating emphatically that he refuses to rely on his own conclusion in the absence of the concurrence of other Poskim.

It can also be argued that as long as the Get Bill remains law, any couple coming to a Bet Din for a Get might have problems procuring an "unclouded" one. The possibilities of coercion, after all, are varied. An obvious case would be if the couple's case is already in the civil courts and they are awaiting the judge's verdict regarding monetary matters.

There are other, more subtle, possibilities. A husband just being threatened with the consequences of this bill is likely to acquiesce; hence, once again, invalidating any subsequent Get. (As stated above, the halacha views even threats of coercion, when likely or possible, as an invalidating factor.) What about a letter from the wife's lawyer to the husband's before any case is opened in court, gently "reminding" him of the bill's provisions? What about an angry woman telling an unwilling-to-divorce husband "see you in court"? What about the expenses involved in hiring a lawyer and getting involved in a debilitating court case? Surely any of these potential scenarios are a distinct possibility; in a contested divorce, an outright probability. How could a Bet Din determine with certainty that these scenarios did not occur?

At best, the bill creates a situation where every Bet Din would have the burden of investigating the motivation of any husband who is involved in, or has been threatened with, civil divorce proceedings. Hopefully, this theoretically could be done. But is this the purpose of the bill? What does it solve if, when it functions as provided for, it creates invalid Gittin? At the very least, the law creates a situation where spouses will be tempted to be devious with the Bet Din which is processing the Get in attempting to procure an (invalid) Get by misstating their true motivations.

In all-too-many situations, it will be impossible to prove the facts in a conclusive way. This may place all New York Gittin under a cloud, and thereby create a whole new class of agunot! We are dealing with something that potentially affects the entire Jewish community in a very serious way. If women receive Jewish divorces of questionable validity, their subsequent marriages might be adulterous and their subsequent offspring might be mamzeirim. These possibilities are indeed horrifying. Although the bill's purpose is commendable -- to try to help agunot -- it blunders into pitfalls without any regard to the consequences: an unfortunate triumph of style over substance.

The Get Bill has another quixotic twist to it. Granted that a Get given as a result of economic duress is halachically invalid, the bill, by placing the threat of what are in effect financial sanctions over the heads of the litigants, thereby creates a situation where "free will" can no longer be determined to be existing. Paradoxically, then, the barrier to remarriage, which the bill seeks to obviate, cannot halachically be removed -- bv virtue of the coercion of the bill itself! This cruel "Catch-22" situation is a reason to have hope that the bill, upon challenge, will be overturned in the courts. As long as it has not been, though, and remains law, the bill obviously does not reckon with halachic will: Otherwise, it would be a self-contradictory joke, for it calls for willful action in a way which halachically produces coercion. (Any coercive action taken to produce a Get, after all, obviously does not reckon with halachic will -- otherwise, the coercive action would be futile and pointless.)

Proponents of the bill have of late incorporated some of the above reasoning and have done an about-face (following a clear-cut ruling from two halachic giants of our generation, Rav S.Y. Elyashiv, Sh'lita, and Rav S.Z. Auerbach, Sh'lita, [in a letter disseminated to Poskim and other Rabbanim] that the "new Get Bill" represents invalidating coercion). After months of claiming that the bill did not represent an invalidating coercion, a new, but sophistic, interpretation was suggested: Granted the bill does create a coercive situation, the bill still represents no problem -- precisely because it coerces the husband to give a Get! Since the law defines "a barrier to remarriage" as one that can willingly be removed, the husband (or wife) to whom the bill would apply need merely go to Bet Din; the Bet DIn (presumably) will refuse to arrange the Get; and the party can then go back to the court and claim that he/she wants to remove the barrier - but the Bet Din will not let them! The court will surely realize, the argument goes, the strength of this claim, and the bill's provisions will be aborted; true, no Get will have been procured, but at least the husband/wife will come to a Bet Din, who will then attempt to resolve the issue.

This approach is highly specious:

A: As a matter of principle, does it make sense to have a law which results in an invalid Get if it works as written, while we pin our hopes on its not working? Would we agree to legislation calling for printed Tefillin and Mezuzot to be sold as being halachically valid, with the expectation that our learned scribes and expert Rabbis will "catch" the invalid ones?

B: The claim that a judge will view the bill as coercive in determining whether or not the barrier can be removed willingly is absurd. No legal system views fulfilling its dictates as being unwilling and hence invalid. When a judge orders a contract to be drawn up under threat of contempt of court, can the litigant claim afterwards that the contract is invalid, drawn up without consent due to his fear of imprisonment?

C: As a practical matter, isn't it naive to assume that the husband will inform the Bet Din that he is being coerced by the bill? Wouldn't his lawyer, who certainly must consider that a judge would order maintenance and marital property based on the de-facto "undivorced" situation, advise him not to do anything that would obstruct the Get proceedings? A person being coerced to give a Get would obviously cooperate and just tell a Bet Din "Rotzeh Ani- I want to give the Get." Consider this case: If A threatens B to give a Get to his wife or he will be physically assaulted, and B believes him - would B go to the Bet Din and announce the threat, then go back to A and say "I tried to give the Get but the Bet Din wouldn't let me?" Or would he make sure to keep quiet and cooperate fully with the Bet Din proceedings?

D: The coercive effects of the bill can be very subtle and might have been utilized without the parties being aware of the halachic problem of coercion that exists. One example: Many months previously a wife may have threatened her husband to 5ive her a Get or else she would take him to court and utilize the Get Bill. Will the Bet Din be able to make a proper determination if such an event indeed occurred? Remember that a halachically-coerced person honestly feels that he does want to give the Get -- but that feeling has been produced by coercion and is hatachically invalid.

It is puzzling that those who believe in this convoluted interpretation of the Get Bill absolutely refuse to support an amendment which would clarify that the purpose of the bill is indeed merely to have the parties submit their Get dispute to a Bet Din. (An amendment has been proposed many months ago which would do exactly that.)

They might also consider, in order to remove "a stumbling block", informing the various activist groups who have been so vociferous in hailing the bill's ability to procure a Get from a recalcitrant spouse, that the bill's only accomplishment is to transfer the entire matter to a Bet Din. One suspects that were these groups to be so informed, there would no longer be anyone objecting to repeal of the entire bill.

In summary, the "new Get Bill" represents an ever-present danger. It is, in fact, a convincing argument for those who proclaim the danger of having secular laws come to the "aid" of our community's halachic problems. Every day it remains law is a day too long.