Getting a 'Get'

Many family lawyers have faced a recalcitrant spouse on the other side, who refuses to give or accept the get out of spite, or offers cooperation as leverage for economic concessions. The Beth Din provides a variety of services in such cases. A wife can petition the Beth Din to have her husband brought before a tribunal of three rabbis for an arbitration hearing. The Beth Din is responsible for determining terms for the husband to give the get, and wife to receive it. The husband must agree to abide by the Beth Din decision. The Beth Din ruling is enforceable against the husband only through social sanctions, which may be ineffective; or through judicial recognition in a secular court, if the parties agreed to submit to Beth Din authority.

Even with a favorable ruling for a wife from the Beth Din, without the husband willingly giving her the get, the wife is considered in “Agunah,” which means chained to the marriage. This is a highly undesirable condition, as the wife cannot remarry or date, and her future children are considered illegitimate. Conversely, if a wife refuses to participate in the get process or to accept the get, she is deemed a rebel. In such a case, the Beth Din writes a petition for Heter Me'ah Rabbanim, which seeks permission from 100 rabbis for the husband to re-marry.

Beth Din Process and Procedure

With the exception of New York, most state courts will not get involved in the get issue, because judicial involvement has been viewed as interfering with the free exercise of religion. The Beth Din is the primary organization capable of managing the get process. It arranges a tribunal, composed of at least three rabbis, which can meet with the parties together, separately, or travel to the parties as necessary to effectuate the get. The Beth Din has the power to summon unwilling parties who stipulated in a prenuptial or postnuptial agreement to have matrimonial disputes handled by the Rabbinical court.

Beth Din rulings in the matrimonial sphere are subject to state statutory and common law and are enforceable through recognition by civil courts. Rabbinic tribunals can rule on the get, distribution of property, alimony, spousal support/maintenance, child custody, and child support. Parties are cautioned in submitting custody disputes to the Beth Din because it follows the Tender Years Doctrine

Beth Din hearings are recorded and available for transcription. There are provisions for pre-hearing discovery requests from the parties or the Beth Din itself. Parties may also stipulate to facts or issues in advance and must provide notice of anticipated witnesses that will be called. The Beth Din issues decrees formalizing community sanctions by withholding privileges such as burial rights, marriage rights, shul membership, and social acceptance.

Beth Din Marital Agreements

The Beth Din provides form marital agreements for Jewish couples. Those agreements are dissimilar from agreements that most family lawyers prepare. The prenuptial agreement is essentially an agreement to arbitrate future marital conflicts through the Beth Din, It also contains a clause for each party to cooperate with securing a get. As agreements to arbitrate are widely enforced, these agreements are useful to ensure that Jewish couples have a faith-based forum to address their matrimonial disputes. Once a couple agrees to binding arbitration through the Beth Din, the Beth Din decision is fully enforceable in civil court.

Jewish couples are best served by signing a Beth Din prenuptial agreement together with a standard civil prenuptial agreement with financial disclosures and appropriate waivers. The civil prenuptial agreement should include economic consequences for either party's failure to give or accept get.

Julia Swain, a member of this newsletter's Board of Editors, is a partner at Fox Rothschild LLP. She is a Fellow of the American Academy of Matrimonial Lawyers and past Chair of the Philadelphia Family Law Section. She can be reached at [email protected] or 215-299-2794.

Many Jewish couples seek a Jewish divorce, known as a “get,” in addition to a civil divorce. Securing a get requires a husband to give it willingly and a wife to accept it willingly. Frequently, in the context of divorce, a power struggle ensues when one spouse withholds cooperation to secure a get as leverage to gain a more favorable economic settlement. Familiarity with Jewish marriage and divorce is necessary to navigate through these religious issues in a secular framework.

Jewish Marriage and Divorce

At the time of a wedding ceremony, Jewish couples sign a marriage contract, known as the Ketubah, which creates certain duties for a husband to a wife. In the Ketubah, the husband agrees to provide his wife with food, clothing, and conjugal rights. When there is no longer harmony in the home, Jewish law provides a process for divorce, which involves a proceeding before the Jewish Rabbinical Court, known as the Beth Din. The get can be secured before or after a civil divorce. However, it cannot be replaced by a civil divorce, because without the get, the couple is still married under Jewish law.

Many family lawyers have faced a recalcitrant spouse on the other side, who refuses to give or accept the get out of spite, or offers cooperation as leverage for economic concessions. The Beth Din provides a variety of services in such cases. A wife can petition the Beth Din to have her husband brought before a tribunal of three rabbis for an arbitration hearing. The Beth Din is responsible for determining terms for the husband to give the get, and wife to receive it. The husband must agree to abide by the Beth Din decision. The Beth Din ruling is enforceable against the husband only through social sanctions, which may be ineffective; or through judicial recognition in a secular court, if the parties agreed to submit to Beth Din authority.

Even with a favorable ruling for a wife from the Beth Din, without the husband willingly giving her the get, the wife is considered in “Agunah,” which means chained to the marriage. This is a highly undesirable condition, as the wife cannot remarry or date, and her future children are considered illegitimate. Conversely, if a wife refuses to participate in the get process or to accept the get, she is deemed a rebel. In such a case, the Beth Din writes a petition for Heter Me'ah Rabbanim, which seeks permission from 100 rabbis for the husband to re-marry.

Beth Din Process and Procedure

With the exception of New York, most state courts will not get involved in the get issue, because judicial involvement has been viewed as interfering with the free exercise of religion. The Beth Din is the primary organization capable of managing the get process. It arranges a tribunal, composed of at least three rabbis, which can meet with the parties together, separately, or travel to the parties as necessary to effectuate the get. The Beth Din has the power to summon unwilling parties who stipulated in a prenuptial or postnuptial agreement to have matrimonial disputes handled by the Rabbinical court.

Beth Din rulings in the matrimonial sphere are subject to state statutory and common law and are enforceable through recognition by civil courts. Rabbinic tribunals can rule on the get, distribution of property, alimony, spousal support/maintenance, child custody, and child support. Parties are cautioned in submitting custody disputes to the Beth Din because it follows the Tender Years Doctrine

Beth Din hearings are recorded and available for transcription. There are provisions for pre-hearing discovery requests from the parties or the Beth Din itself. Parties may also stipulate to facts or issues in advance and must provide notice of anticipated witnesses that will be called. The Beth Din issues decrees formalizing community sanctions by withholding privileges such as burial rights, marriage rights, shul membership, and social acceptance.

Beth Din Marital Agreements

The Beth Din provides form marital agreements for Jewish couples. Those agreements are dissimilar from agreements that most family lawyers prepare. The prenuptial agreement is essentially an agreement to arbitrate future marital conflicts through the Beth Din, It also contains a clause for each party to cooperate with securing a get. As agreements to arbitrate are widely enforced, these agreements are useful to ensure that Jewish couples have a faith-based forum to address their matrimonial disputes. Once a couple agrees to binding arbitration through the Beth Din, the Beth Din decision is fully enforceable in civil court.

Jewish couples are best served by signing a Beth Din prenuptial agreement together with a standard civil prenuptial agreement with financial disclosures and appropriate waivers. The civil prenuptial agreement should include economic consequences for either party's failure to give or accept get.

Julia Swain, a member of this newsletter's Board of Editors, is a partner at Fox Rothschild LLP. She is a Fellow of the American Academy of Matrimonial Lawyers and past Chair of the Philadelphia Family Law Section. She can be reached at [email protected] or 215-299-2794.