The New York Get Law: An Exchange

Chaim Z. Malinowitz

Rabbi Milanowitz is a member of the Bet Din of Kollel HoRabbonim of Monsey

Rabbi Michael Broyde's "The 1992 New York State Get Law" (Tradition, Summer 1995) contains a number of inaccuracies and misrepresentations that deserve further discussion.

1. Rabbi Broyde begins by saying that "Jewish Law mandates that ideally [emphasis mine] a Get be given with no coercion present at all." This implies that we are dealing with a humra (stringency) or a le-ha-thila (a desirable condition, but a dispensable one). But a coerced Get is totally invalid mi-de-Oraita, by Torah Law, with serious consequences of adultery and mamzerut.

2. There are two major flaws in the Get bill which Rabbi Broyde never addresses. First, the law helps women obtain a Get when there has been no finding whatsoever by any halakhic body that a Get is either warranted or appropriate. A contested civil divorce requires a court verdict; surely a contested Get deserves no less, and in a halakhic forum. The Get bill has no such provision. Thus, any speculation that a Get is called for remains speculation.

   Second, even if a Get is warranted, if there are no halakhic grounds for coercion, then writing such a Get is not just forbidden, it also invalidates the Get. Indeed, even when a case theoretically calls for coercion, the Get will be invalid if a bet din does not formally rule that coercion is proper. Moreover, if such a ruling is obtained, the civil courts cannot constitutionally act as a bet din's agent, carrying out their verdict; and without such a mandate, the resulting Get is invalid.

3. Rabbi Broyde argues that "where illicit coercion is present, the bet din will decline to write the Get." Then what is the point of the Get Law? He continues: "In other situations, supporters of the Get bill argue, the law can be an effective tool to curtail instances where a Get is improperly withheld." But how, in these "other situations," can an invalidating monetary coercion ever be "an effective tool" to "curtail a Get being improperly withheld"? Any resultant Get would be invalid and meaningless.

4. Rabbi Broyde continues, "For this reason alone, in this author's opinion, the 1992 Get Law is at the very least a bad idea, even as its intentions are laudable and its goals commendable, as noted by the late Rabbi Shlomo Zalman Auerbach in his discussion of this law." This makes the reader think that Rabbi Auerbach zt"l "noted" that "its intentions were laudable and its goals commendable." But Reb Shlomo Zalman expresses no such sentiment anywhere. On the contrary, he clearly writes in his letter that the Get bill is a "sakana, ve-lo takana"--a danger, not a remedy" [because it poses a terrible danger by creating invalidating coercion]. There is no "dispute" between Rabbi Auerbach zt"l and Rabbi Eliashiv shelita, as Rabbi Broyde suggests. It is commonly known that they both shared the opinion that the Get bill creates economic coercion which would invalidate any Get written as a result of said bill.

5. Rabbi Broyde discusses Rabbi Moshe Feinstein's responsum in the first of his "Halakhic Considerations" (page 7). I think it intellectually dishonest to relegate to a footnote Rav Moshe's statement that his logic is not to be relied upon, while prominently displaying that "sevara" as point number one. More importantly, Rav Moshe zt"l was discussing a specific case where it was indeed clear that "the husband actually wished to end the marriage and be divorced, and is only contesting the fiscal details of the divorce, but has no desire to remain married to his wife." But there is no such requirement in the Get bill. How, then, in any divorce case, would such a fact ever be determined, and by whom? Similarly, Hazon Ish is quoted discussing a case where the husband made it quite clear before any coercion existed that he wanted a Get.

6. The opinion of Rabbi Herzog, zt"l, which is also quoted on page 7, is likewise misrepresented. Rabbi Herzog writes that he is expressing himself "le-pilpula, ve-lo le-halakha" [for academic discussion, not for practical application to an actual case] and concedes that all posekim rule against him. Second, an examination of his teshuva reveals that he is considering a case where a duly constituted bet din has already made a determination that there is a case which possibly calls for coercion. In such a case, Rabbi Herzog posits, the rationale applicable to every halakhically properly coerced Get becomes relevant and the bet din may order the coercion which would result in a kosher Get, using the principle of "sefek sefeka." This has nothing to do with the Get bill, which has no requirement for any type of halakhic verification whatsoever.

7. Rabbi Broyde's next point (that there be an application of dina de-malkhuta dina to the equitable distribution law) is implausible, given the 14 subjective factors which New York State law insists be weighed by each judge in each case in making any determination. In addition, it should be noted that there is no law mandating that a divorcing couple use the State's Equitable Distribution Law. They are free to reach any agreement they want, including a division which holds true to Torah Law; this in itself precludes the application of dina de-malkhuta. Rabbi Broyde's legal reasoning here is unsound as well. Secular law does not rule that "equitable distribution assets belong individually to neither partner in the marriage." Rather, it allows money to be transferred to one partner, being taken from the other--and now, the withholding of a Get will accomplish that.

8. Rabbi Broyde's next point is that many times, the penalty caused by the bill would be quite reasonable, and as such, not considered an invalidating coercion. While it is true that it is impossible to predict the 'reasonableness' of an award based on the Get bill, a law designed with the avowed purpose of procuring a Get is not one which would tend to encourage the judge to be 'reasonable'--for it would then be completely ineffective!

9. Rabbi Broyde's fourth and sixth points are that there may be cases which indeed call for coercion. All posekim agree that a coerced Get is invalid unless there exists a prior, valid bet din verdict that coercion is allowed, and the verdict is then carried out by agents of the bet din. The Get bill has no provision for anything of this nature.

10. Rabbi Broyde feels that there are opinions that hold that economic duress does not constitute invalidating coercion. But these opinions are not halakhically normative: all posekim, from Bet Yosef (in Even HaEzer 134) and R. Betsalel Ashkenazi (#16) to the posekim of today, (and the Shulhan Arukh itself) discuss many cases of invalidating coercion due to monetary factors, with no dissenting opinions. (See Even HaEzer 134 and Hoshen Mishpat 205:7)

11. Gra is likewise cited inaccurately. He actually states the well-established principle that a coercion which can be avoided (somewhat) easily is not an invalidating coercion. Gra neither discusses, nor mentions, anything else. In fact, Gra Hoshen Mishpat 205:18 explicitly agrees that monetary coercion is an invalidating coercion!

12. Rabbi Broyde feels that "perhaps most, and certainly many, divorces" fall into the category of a woman who has provable ground that her husband is repugnant to her. As a Rabbinical Court Judge for about fifteen years, I can emphatically state that that is not the case. And if the rishonim who constitute normative halakha argue with Rambam, for fear of "shema eyneha natna be-aher," can we ignore their fears?

13. Regarding the plausibility of marriages entered into post-Get bill carrying an automatic "pre-agreed-upon-penalty," few couples would declare, either before or during their marriage, that they wish to be governed by the laws of New York State in marital division of property in the event of a divorce. But even this would be coercion if the husband changed his mind and declared that he did not want to give the Get. (See Even HaEzer 134.)

14. Rabbi Broyde argues that Rabbi Yitshak Elhanan Spektor rulthat a Get is valid so long as the illicit coercion from a secular court is not used directly to compel the actual writing of the Get. If the coercive action is separated in time and manner from the husband's order that the Get be written, and the husband states to a bet din at the time of the writing of the Get that his actions are voluntary, and it appears that there is no imminent coercion present, the Get is valid.

    But there is no logical way to consider the coercion of the Get bill indirect. It directly, explicitly extracts a Get from a husband under a threat of monetary loss. Rabbi Yitshak Elhanan's discussion revolves around a case where it was forbidden for a couple to be married under the prevalent secular law; there was no interest by anyone in a Get per se. The husband came to the bet din, presumably on his own, and stated that under the circumstances, he would indeed divorce his wife--i.e., give her a Get. Reb Yitshak Elhanan rules that since in such a case a bet din may coerce the husband to give a Get, and there was no indication that when he came to the bet din he was under any coercion from the government, the Get that was given can be relied upon ex post facto.

15. Rabbi Broyde maintains (p. 9) that "even when a penalty is explicitly imposed by the judge under the 'Get Law' for withholding a Get, if the amount of the penalty is clearly related to the wife's support needs and is comparable to the amount which a bet din could have ordered as maintenance (mezonot) for the wife, then there is no halakhically improper coercion." This is simply not so. A woman who, without permission from a bet din, initiates a court proceeding against her husband is almost always, by the nature of that action, a moredet, and as such, is not entitled to any mezonot until any claims she has are clarified and verified by a bet din. (See Even HaEzer 77). In addition, the Get bill provides for division of marital property, not just maintenance payments. Furthermore, it provides for support even post-divorce, which generally constitutes out and out halakhic theft.

16. Rabbi Broyde argues that "the mere presence of a penalty provision in the judicial divorce decree is not evidence of illicit coercion." But there is a clear-cut halakha which states, "devarim she-ba-lev einam devarim"--we ignore unexpressed thoughts a person has if his actions indicate the opposite or if the normal perception of those actions is halakhically meaningless. This means that when we have an act of coercion, we cannot speculate, "Perhaps he really wants to give the Get." (Unless, possibly, that "will" was expressed before the coercion, as per Hazon Ish quoted above.)

We also cannot accept Rabbi Broyde's argument that "it is nearly impossible for any outside observer to distinguish cases where coercion is present in the settlement negotiations from cases where it is not, thus creating significant factual doubt as to the presence of coercion in the issuing of the Get in most cases." A good "outside observer" to consider would be someone who knows the circumstances of the particular case, one who knows the monetary issues at stake, not a person picked out at random. And those who understand the Get bill would realize that a significant financial loss is "at stake."

In short, the Get bill remains an ever-present danger, in all likelihood causing invalid gittin in cases of contested divorces now being litigated in New York State Courts.

Reprinted with the permission of Tradition Magazine. All rights reserved.