DOMESTIC RELATIONS LAW 236B: A Study in Communications Breakdown¹

Rabbi Yitzchok Breitowitz

Introduction

In recent years, as the divorce rate in the United States has skyrocketed, many of us have become increasingly aware of the unfortunate plight of Jewish women unable to marry after receiving a civil divorce because of the refusal of their husbands to grant them a get.² These women are known as agunot (chained or anchored women).³ The husband's motivation may be simply blackmail ("pay me $100,000 and I will give you a get"); a desire to obtain concessions in terms of child support or custody; or a product of irrational malice, spite, or rage. While the exact number of women trapped in this status is uncertain, even one case is one too many in terms of the havoc and misery that is wrecked on the lives of its victims.⁴ Halachic scholars have grappled and continue to grapple with this very vexing and tragic problem.

In a society where batei din had extensive coercive powers, in many cases these powers could be employed against a recalcitrant husband. Batei din in the United States, however, enjoy no such authority. As a result, enlisting the aid of the secular courts to procure the execution of a get via the drafting of prenuptial agreements or other means has been seen as the only viable alternative, the only question being how could this assistance be employed without compromising the validity of the get. Recently, the State of New York, at the prompting of the Jewish media, passed a law that essentially empowers courts, even in the absence of agreement, to exert pressure on husbands to execute gittin. The article will briefly explain the law, point out some of its problems, and suggest ways these problems could be avoided in the future.

The Law

In July 1992, the State of New York passed an amendment to Section 236B of its Domestic Relations Law. Section 236B details a variety of factors that courts are to consider in setting spousal maintenance (alimony) and property division ("equitable distribution") in the event of a divorce. As presently amended, the statute now provides that one of the factors the court shall consider both in determining maintenance and in allocating marital property is the "maintenance (by one spouse) of a barrier to remarriage" (of the other spouse). While neutrally worded, "barrier to remarriage" clearly includes the withholding of a get and, indeed, this is exactly the situation the statute was designed to address. Thus, in effect, the statute provides that a court may condition the husband's receipt of property or the level of alimony on his cooperation in releasing his wife from the religious restraints of remarriage by his willingness to execute a get. In theory, the statute works in reverse as well, fully applicable in cases where women refuse to receive/accept gittin (though the so-called male agunah problem is somewhat less serious in view of halachic alternatives⁵).

The statute, on its face, serves two positive functions. First, it allows courts to recognize the very real economic hardships and dislocations that women face after divorce, particularly when civil law declares them unmarried but by virtue of their adherence to halacha they are unable to marry anyone else. Second, it encourages parties to remove barriers (to execute gittin) since removing the barrier may result in a decreased alimony liability and a greater entitlement to property. The statute gives secular courts leverage to aid victimized spouses who would otherwise be at the mercy of recalcitrant husbands, persons who are often perfectly willing to flout the decision of a bait din.

It should be noted that the ability of the court to pressure one party into the get process does not apply in all cases. Rather, it is limited to those cases where the get would be required under the "principles of the clergyman who solemnized the marriage." Thus, the statute would apply whenever the marriage was performed by an Orthodox rabbi even if both parties were nonobservant, but it would afford no relief to couples whose marriage was solemnized by a Reform clergyman if, for example, one or both of the spouses became chozrei b'teshuva at a later date, a phenomenon which, thank G-d, is increasingly common.

Section 236B is not the first foray by New York State in addressing the get problem. In 1983, Section 253 was added, providing that a plaintiff in a divorce action could not obtain a civil divorce unless he or she filed a verified affidavit that they had done all that was in their power to remove barriers or impediments to remarriage suffered by the other spouse. This affidavit could be contradicted by the officiating clergyman and a false affidavit could subject the plaintiff to a perjury prosecution. (This, too, was limited to barriers that existed under the principles of the clergyman who solemnized the marriage.)

Section 253, however, had some major limitations. First, the only pressure courts could bring to bear on a recalcitrant or even a malicious husband to execute a get would be the withholding of a civil divorce. Since a recalcitrant husband is already disabled from remarrying by virtue of halacha,⁶ this additional bite may not be particularly significant. Moreover, in an era of extramarital relationships and the disappearance of adultery prosecutions, the mere withholding of a civil divorce often exerts no significant pressure. By contrast, Section 236B permits courts to hit husbands where it really hurts--two-tiered alimony and property division.

More importantly, Section 253 aided victimized spouses only where the recalcitrant party was the divorce plaintiff. Section 253 afforded no relief at all where the wife was the one filing for divorce. Assuming that a victimized spouse would at some point want to at least be civilly divorced, all a husband would have to do is to bide his time until his wife files for divorce. By contrast, while the matter is not entirely free of doubt, Section 236B appears to apply irrespective of which party filed for civil divorce. In spite of these shortcomings, Section 253 has been a surprisingly effective law; the head of one prominent bait din in Monsey (Kollel HaRabonim), Rabbi Leib Landesman, asserts that he has executed over 150 gittin as a result of persons needing to comply with the requirements of the statute.⁷

A secular law that invites courts to exercise pressure towards the execution of a get invariably raises difficulties. On one level, such laws may be violative of the constitutional principles embodied in the First Amendment, which prohibit government from "excessive entanglement" in religious affairs and necessitate the separation of church and state. In some cases, compelling (secularly) a recalcitrant husband to grant a get may also be an infringement of his right to the free exercise of religion, at least where the husband is a non-Orthodox Jew who may not believe in the institution of get. As a counterargument, it has been asserted that a get, although derived from religious law, is not a religious act per se - it involves no profession of faith or acknowledgment of a Deity but is more akin to the rescission of a contract, i.e., the marital bond. Moreover, it is rarely, if ever, that the withholding of a get is done out of principled religious motives. Even Reform Jews, who may not believe that a get is necessary, merely regard it as superfluous, rather than religiously offensive. Indeed, to their credit, many Reform rabbis encourage their congregants to execute gittin to avoid potential martial complications to their spouses or children at a future date.

Constitutional matters aside, the real concerns here are halachic. In its laudable zeal to alleviate victimization and suffering, the New York statute may possibly create gittin that are halachically invalid, actually disabling a woman from remarrying. Let us briefly summarize the operative principles:

1. A get must normally be executed with the unfettered free will of the husband. Any get that is the product of duress or coercion is invalid as a get meusah ("coerced get").

2. Coercion or duress includes not only threats of death or bodily injury but also threats involving the imposition of monetary sanctions, penalties, or forfeitures. If A tells B, "Write this get or I will take away your property," the resulting get is invalid.

3. The strictures of get meusah apply with full force to the use of the non-Jewish or secular court system.

4. Halacha does recognize a number of instances where a husband is obligated to grant his wife a get and in some of these cases (though not all) he may even be physically compelled to perform this duty.⁸ Examples may include an unjustified refusal to cohabit, non-support, abandonment, physical abuse, and severe psychological abuse. If, and only if, a halachically valid bait din has found that grounds for compulsion exist and issued an order to this effect ("kofin"), the prohibitions against get meusah cease to apply and the parties are free to secure the get by any means available, including utilization of the enforcement powers of the secular courts. Even here, some authorities would permit the use of secular courts only if those courts are acting for the purpose and intention of enforcing the mandate of the bait din and not where secular enforcement is predicated on some alternative basis. It should also be noted that even where a bait din has ordered the husband to grant a get to his wife, that is not automatically an order that is subject to compulsion--secular courts may still not be utilized unless the additional finding of kofin is made.

5. In the absence of abuse, abandonment, and so forth, according to the vast majority of definitive rabbinic opinions allegations of irreconcilable differences, incompatibility, and other common grounds for civil divorce are not a sufficient basis to obtain a compulsion order of a bait din. Although if the marriage truly seems unsalvageable, the bait din may well advise or even direct the husband to give a get, the law of get meusah prohibits duress or compulsion in forcing him to do so and would thus preclude resort to the secular courts.

Based on the above principles, one can readily see the halachic problems in the New York statute. Under the statute, a judge may in effect tell a recalcitrant husband that his alimony obligation will be $800 a month until he grants a get but only $500 a month thereafter or that, if he executes a get, he will be entitled to a 50-percent interest in the marital home but if he does not the interest will be forfeited. The nature of the sanction--financial liability or forfeiture of property--is clearly of a magnitude to rise to the level of illicit coercion, making the resulting get a get meusah under principles #1-3. And while these pressures could be legitimately employed where a bait din had already issued a compulsion order (principle #4), there is nothing in the New York statute that circumscribes the judge's authority by tying it to the prior determination of the bait din. (In fact, limiting the court's authority to cases where a bait din has issued a ruling actually poses constitutional problems of entanglement.) Indeed, the statute could effectively be invoked by a party who simply seeks a divorce at will with no halachic grounds whatsoever. Moreover, even where the bait din has issued a compulsion order, since the statute in no way conditions judicial intervention on such an order, the secular court is not acting as an "arm" of the bait din.

Some have defended the halachic validity of the statute by noting that it permits courts to utilize the withholding of a get as a factor in alimony and property only in cases where this is "appropriate," arguing that in the absence of a compulsion order, such actions would by definition be inappropriate. I find this argument fairly specious since one could hardly expect every trial judge in the State of New York to be finely attuned to the nuances of the halachot of the get meusah. Others have noted that the primary intention of the statute is not to coerce the husband into giving a get (thought that may be the probable effect) but to compensate the wife for disabilities and economic deprivation stemming from her inability to remarry.⁹ While this argument has strong support in the language of the statute, this raises an intriguing jurisprudential question: Whose intent is controlling? Is it the intention of the legislators passing on the bill? Which legislators? What if the judge issuing the order is indeed trying to squeeze a get out of the husband, even though he uses the language of economic need in formulating the order? For purpose of get meusah, does form control over substance?

In point of fact, two gedolei haposkim of our generation--Rabbi Shlomo Zalman Auerbach and Rabbi Yosef Shalom Elyashiv--have opined that gittin issued pursuant to the provisions of the New York law are tainted with the stigma of get meusah and the law should be repealed or substantially reformulated.¹⁰ Indeed, Rabbi Elyashiv mentioned that the get would be invalid even if issued in conjunction with a bait din's compulsion order, since even here the secular court would not be imposing sanctions for the purpose of enforcing the bait din's decision. Other rabbinical authorities in the United States have ruled that such gittin are valid.¹¹

This is not the forum to iron out the complexities of the halachic debate nor is this author competent to do so. Suffice it to say, however, that the Jewish population of the State of New York, the largest in the United States, is now laboring under a cloud of tremendous and intolerable uncertainty and confusion. Gittin issued in response to a judge's order setting two-tiered alimony or tying property rights to a get are, according to eminent opinions, halachically invalid; a women who remarries pursuant to such a get may be committing adultery; the children born from such a marriage may be tainted with the irrevocable stigma of mamzeirut and, yet, by virtue of the other opinions that vociferously uphold the validity of the get, such gittin may well continue to be written. In effect, one segment of the Orthodox rabbinate may be creating what the other segment regards as mamzeirim. In light of the already cataclysmic difficulties that Jews face because of spurious Reform conversions, patrilineal descent, and mamzeirut issues stemming from cases where remarriage took place without a get at all, the last thing the beleaguered Orthodox community needs is to create further subdivisions on an issue as fundamental as whether one Jew is allowed to marry another. Indeed, some have said that under Rabbi Elyashiv's reasoning, not only would a get be invalid if issued pursuant to a court's forfeiture order but every get issued in New York State is potentially invalid (even if no court proceeding was initiated), since the husband knows that if he would not give a get, the wife could have recourse under Section 236B. While this reading is probably far too broad (the "threat" of the wife going to court and calling upon the judge to issue a Section 236B order in the absence of any indication on her part that she would seek such relief is probably too attenuated and remote to be considered a halachically significant source of duress), the very possibility that no get could be validly executed in the State of New York sends shivers up one's spine.¹²

How did we get into such a mess? How did such an obviously well-intentioned statute lead to such ludicrous if not disastrous consequences? A comparison to the 1983 get law is highly instructive. The 1983 get law was prepared in careful consultation with recognized halachic authorities of every camp--members of the RCA, Roshei Yeshiva, Chassidic authorities, congregational leaders (Rabbi Schwab and Rabbi M. Stern), and, most notably, with the approval of the gadol hador, R. Moshe Feinstein, z.t.l. The sponsoring organizations--primarily Agudath Israel--and the bill's drafter, eminent attorney and Jewish communal activist Nathan Lewin, had a clear recognition that Klal Yisrael would not be served, nor could the agunah problem be adequately solved, by the promulgation of gittin which would not be halachically acceptable to any significant segment of the Torah-observant community. That to allow such gittin to proliferate and to erect barriers which prevent one Jew from marrying another because of the irrevocable taint of mamzeirut that is generated when persons remarry pursuant to invalid gittin is truly a cure that is worse than the illness. By contrast, the 1992 law was passed quickly and with very little advance notice, propelled essentially forward by the popular press. A number of Jewish organizations pushed for the bill's passage but did not solicit extensive rabbinic input. Even the opinions and responsa validating gittin issued pursuant to Section 236B were issued after the fact and do not reflect halachic guidance and input the sponsors had before they pushed for legislative actions. Major halachic authorities were simply not consulted at all. At the risk of sounding a bit callous and with full sympathy for the unfortunate women who are victims of unscrupulous and indeed despicable husbands, one may legitimately ask what was the rush? After all, even the deliberative process that led up to the 1983 law took less than 2 years and there was no reason why the same process could not have been followed in 1992.

More fundamentally, the unhappy experience of the 1992 New York law highlights the need for greater cooperation, communication, and coordination among halachic authorities within the different subgroups of Torah Jewry and between those authorities and the lay organizations and governmental bodies that are involved in drafting and sponsoring legislation. Within the panoramic tapestry that comprises Torah Judaism, there are many issues which are legitimate subjects for debate and in which the absence of a consensus poses no threat to the future of Klal Yisrael. Issues such as Torah U'Maddah and the role of the State of Israel in the redemptive process--as vital as they may be--do not require that Klal Yisrael speak with a unified voice. There is ample room within our camp for organizations and affiliations that articulate distinct points of view and a unique weltanschauung providing there is a common commitment to core Torah values and a sense of respect and tolerance for opposing views that share those core commitments.¹³ (I am not suggesting, for example, that the Orthodox Union formally merge with Agudah, although that is an intriguing possibility nor that Mizrachi join together with Satmar.)

Indeed, Chazal recognized the dynamic nature of truth and the possibility of multiple truths in their famous axiom, "These and those are both the words of the Living G-d."¹⁴ (in reference to the disputes of Bait Shammai and Bait Hillel). Certain issues, however, particularly those pertaining to personal status and Jewish identity, do indeed require that Torah Jewry speak with a unified voice. It is intolerable to allow a situation where some within the Orthodox rabbinate are permitting marriages that others would regard as adulterous. It is intolerable for any group to effectively legitimize an arrangement that may, according to others, result in the proliferation of mamzeirim, saddling future generations with a stigma and disability that they will be unable to remove. To some degree, this problem already exists when women who were married under Reform and Conservative auspices remarry without benefit of a get and bear children from that second marriage. I, and many other rabbis, have been confronted more than once with a child or a grandchild from that second marriage who, perhaps 20, 30, or 40 years later, seeks to become a baal teshuva and faces the dismal possibility of being unable to marry a Torah-observant Jew. Now, we face the identical problem coming not from those movements that seek to undermine Torah, but from leaders and organizations that seek to strengthen it. At a time when even the Reform movement has increasingly come to recognize the vital importance of a valid get, surely Orthodoxy should not be in the business of undermining this requirement. Note, too, that the rationales that enable children of second marriages to avoid mamzeirut where the first (Reform) marriage was terminated without a get, i.e., the argument that the first marriage was never halachically valid and did not need a get for termination, would not apply to an Orthodox marriage terminated pursuant to Section 236B. In effect, the self-inflicted wound of Section 236B is far worse, although numerically smaller, than the tragedies foisted upon us by others. One is reminded of Pogo's well-known aphorism, "We have met the enemy and he is us."

Unfortunately, the notion that matters of personal status and Jewish identity requires consensus at least within Torah Jewry has been severely undermined in recent years, particularly in the area of conversions, where some segments of the Orthodox rabbinate perform conversions that others regard as spurious (lacking kabbalat mitzvot, panels comprised of Conservative and Reform rabbis). Without addressing the merits of these troubling issues, and recognizing the very real pressures that the Orthodox rabbinate faces in trying to stem the virtual tidal wave of assimilation and intermarriage, it need only be noted that problems of questionable conversions are ultimately always resolvable, if necessary, by a reconversion, a giyur l'chumra. Problems with gittin and mamzeirut are not. If indeed the leadership of Klal Yisrael go in their separate directions on a wide multiplicity of issues, a firm line must be drawn excluding gittin from that agenda. The consequences are just too serious and too final.

I would thus propose the creation of a national or international bait din or rabbinic advisory board comprised of rabbis affiliated with the RCA, Agudah, the Chassidic world, etc., limited in scope to a consideration of matters pertaining to Jewish status, particularly those involving gittin and agunah, and possibly broadened to include conversion issues as well (although in the present state of affairs, consensus on conversion issues seems unlikely. In any event, the conversion problem is far less pressing). It would be hoped that no Torah-affiliated Jewish organization would attempt to introduce legislation or take positions pertaining to Jewish status without receiving the endorsement of this body. This body would ideally also be the unified conduit that would provide necessary input to legislators and government officials working with the Jewish community and, in the context of agunah, could spearhead the development of halachically valid prenuptial agreements and the like. I think that it is important that the agenda of this board be fairly narrow in scope. Attempts to set up a Super Bait Din are likely to prove counterproductive and would probably result in no bait din being formed or, conversely, in factionalized spin-offs). There are major ideological and halachic differences among organizations and rabbis, and it would be foolish to suggest that they could, or should, be glossed over by the formation of some consensus group along the nature of the Presidents' Conference. Yet within the narrow confines of Jewish family law, the issues--though pressing and emotionally powerful--are not, or should not be, ideologically divisive. Within that narrow focus, halachic scholars should be able to meet in a nonconfrontational atmosphere of cooperation and responsibility, discuss the issues thoughtfully and deliberately, and arrive at some sort of conclusion.

I am not sanguine about the prospects of this ever happening, but, if we are to learn anything from the sad experience of a well-intentioned law, it is that certain matters are too important to be left to individuals or even individual organizations. If we are indeed to remain one Klal Yisrael, if we will continue to marry each others' children, then we must discover the mechanisms that enable us to cut across organizational and even philosophical lines to achieve a unified standard of marriage and divorce. In our laudable goal to protect the agunah now, let us not sacrifice the souls of future generations of Jewish children.

General Sources on Topic

1. Gartner letter to R. Elyashiv questioning conclusion that, even when kofin grounds exist, nonJewish authorities must act as agents for the bait din. (Cheshvan 5753).

2. Hebrew psak din of Rabbinical Court of Kollel Horabonim concluding that the New York law raises serious halachic problems and no one should be mesader a get if husband is giving it becuase of the law. Authored by R.C. Mallinowitz, affirmed by R. Leib Landesman and Moshe Silber (28 AV 5752), a little more than one month after enactment.

3. Short psak of same date.

4. Advice to Medsadrai Gittin (Oct. 22, 1992 25 Tishrai 5753, after receipt of psak by Rabbis Auerbach and Elyashiv). Callls to repeal statute. Enlgish and Hebrew.

5. Mallinowitz letter (n.d.) - calling for rescission of law.

6. Letter of Moshe Sherer (July 23, 1992).

7. Psak of R. Auerback 28 AV 5752 (August 27, 1992).

8. Psak of R. Elyashiv 1 Elul 5752 (Aug. 29, 1992).