Home April 2012 Getting a Get

Getting a Get

Couples planning to marry almost never do so with a plan to divorce, but many wish to arrange their affairs in advance, “just in case.”  Prenuptial agreements are often made to state clearly what each of the parties in a marriage may expect if the marriage fails.  Issues regarding spousal support and property division are usually at the top of the list of concerns in this truly unromantic process, but if properly drafted and executed, the contractual certainty of where each party stands economically in a marriage can actually bring shalom bait – peace in the home.
We tend to think of prenuptial agreements as creatures of modern American life, but Jewish wives have been protected by a premarital contract, called a Ketubah, for more than two thousand years.  The Ketubah is a given by a husband to his wife, and during marriage, a Ketubah entitles a Jewish wife to financial support and conjugal rights.  If the marriage fails, the Ketubah nominally obligates a Jewish man to support his wife, but it does not force him to grant her a Get, a Jewish bill of divorce.  A Get is required to end a Jewish marriage under Orthodox rabbinic law.
Unless a Jewish woman gets a Get, she cannot remarry.  The Get must be “freely given” by the husband, but men have been known to extort huge sums of money for a Get.  There are many tragic stories of men so bent on vengeance or consumed by jealousy that they sit in jail, rather than give a Get.  Certainly the tragedy lies not in the man who holds the keys to his jail cell, but rather in the life of the woman, called an aguna, socially and perhaps financially imprisoned by such an evil man.
A rabbinic court can order a man beaten (theoretically) or jailed (actually) in order to get a Get out of him.  In Israel, he can be stripped of his driver’s license or professional license.  In the State of New York, there are special laws that attempt to force an uncooperative man to grant his estranged wife a Get, by allowing courts to consider financial hardships caused and awarding support or property accordingly, and by requiring a Get before entry of a civil judgment of divorce.  In the U.S., a few wives have successfully sued their husbands on the Ketubah contract to obtain a Get, though California courts have repeatedly refused to enforce religious laws on First Amendment grounds.
All these remedies may fail if the rabbis find the Get is not freely given.  Thus, there is a new kind of Jewish Prenuptial Agreement (JPA) developed by Modern Orthodox rabbis, which levies a fine of a certain amount of support for each day a husband refuses to give a Get.  Though not universally accepted by all Orthodox rabbis as non-coercive, the JPA requires the parties to arbitrate their dispute before a rabbinical court (beit din), and though there are no cases yet to test the enforceability of a JPA, because the agreement calls only for payment of money, and not the granting of a Get, the arbitration award should be enforceable in civil court, just like any other arbitration award.
In California, however, beware!  The law regarding prenuptial agreements is quite complex, and couples who enter into them quite often wind up litigating their validity and/or enforceability.  It is imperative that anyone seeking to enter into a prenuptial agreement in California consult a family law attorney who knows this area of the law well.  If the couple’s only concern is getting a Get if things don’t work out, the agreement should be carefully drafted to avoid all other issues.  A standard, preprinted Jewish prenuptial agreement drafted by a rabbinical council could make all issues, including support, property division, child custody – even restraining orders – subject to arbitration by a rabbinical court.
Simply filling out a form from your local Modern Orthodox rabbi could have a profound effect on the outcome of a divorce!  For example, Jewish law differs considerably from California’s Family Code: under Jewish law, spousal support is very limited, property is not divided equally and gender preferences in custody disputes can produce results that California law disfavors.  Interested parties are urged to consult an experienced attorney as well as a trusted rabbi about this important and complex area of Jewish and civil law.

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