There Is Another Way To Get a 'Get'

Jewish Prenups Offer a Modern and Ethical Solution


By Michael A. Helfand

Published October 21, 2013, issue of October 25, 2013.
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In early October, the FBI arrested 10 men accused of running a torture-for-hire service for more than two decades, having uncovered evidence of more than two dozen victims during multiple raids in New York and New Jersey. But what has turned the story into a national headline is the identity of the alleged ringleaders. According to the complaint filed in federal court, the ringleaders of this group were rabbis who charged tens of thousands of dollars to torture husbands otherwise unwilling to provide their wives with a religious divorce document, known in Jewish law as a get.

While the public response to the story has ranged from outrage to astonishment, the reality is that the use of violent sanction in these circumstances has been a feature of Jewish family law for millennia. Under Jewish law, while a wife can refuse to accept a divorce, only a husband can initiate religious divorce proceedings. Moreover, the husband must grant the divorce willingly, leaving the wife unable to divorce — and in turn, remarry — without the husband’s consent.

In ancient and medieval times, however, there existed an important institutional safeguard. A woman could petition the rabbinical court for a divorce by alleging fault, such as when the husband refuses to fulfill his financial and emotional obligations. If she were successful, the husband would be required by the rabbinical court to execute the get and thereby divorce his wife.

If a husband refused to comply with the ruling, the rabbinical court could authorize the use of violent force against the husband. While divorces cannot be executed under duress, it was simply unimaginable that a husband would so cruelly leave his wife trapped in a nonfunctional marriage. Thus, force simply served as a vehicle to free the husband’s inner desire to do the right thing and grant his wife a divorce.

Unfortunately, this predicament has intensified in the modern era. In some cases, husbands demand exorbitant payments from their wives in exchange for granting a religious divorce. These women will not remarry without the proper religious divorce proceedings; however, unlike in the Middle Ages, their lives — and the lives of their husbands — are no longer governed by the edicts of a rabbinical court, removing the authority that imposed violent sanctions aimed at freeing these chained women. In this way, while Jewish law is seen as the law of these communities, it lacks the enforcement power that, while brutally violent, could protect some of the community’s most vulnerable members.

In the face of this uniquely modern dilemma, two responses have emerged. The first has further embraced violence. But using such deception and torture not only violates United States law, but also may violate Jewish law. Any rabbinical court decree secured with bribery is wholly invalid; violence visited on a husband pursuant to such a tainted decree would only induce him to grant an invalid divorce. In this way, the use of violence all too frequently entails the extortion of money from those it was meant to protect, leading not only to illegal brutality, but also to potential religious invalidity.

But other sectors of the Jewish community have offered a second solution — one that embraces contract instead of coercion. In the early 1990s, the Beth Din of America — one of America’s most prominent rabbinical courts — drafted a prenuptial agreement for use within the Jewish community. The prenuptial agreement requires a husband to provide his wife with a daily support payment, typically $150, for each day the two no longer live together and the husband still refuses to grant his wife a religious divorce.

In so doing, this prenup successfully navigates a variety of legal complexities. Because the daily payment simply continues the husband’s obligation to support his wife, it cannot be seen as financial coercion. And the prenuptial agreement does not require the husband to grant a religious divorce — only to make payments if he fails to — thereby enabling courts in the United States to enforce the agreement without violating constitutional prohibitions. Indeed, this past January, a Connecticut court enforced this so-called “Jewish prenup” above constitutional objections, noting that the terms of the agreement did not undermine the separation of church and state.

The success of the Jewish prenuptial agreement holds an important lesson for the future of religious communities in the United States. Like many religious traditions and doctrines, Jewish divorce law must overcome important challenges posed by modernity. Some have chosen to simply circumvent these challenges through the use of subterfuge, deceit and even violence. But such approaches often exacerbate the problems, leaving women subject to extortion at the hands of not only their husband, but also their would-be rescuers.

By contrast, religion can also view modernity not as an obstacle to overcome, but as providing new opportunities. Indeed, by joining forces with America’s legal system, Jewish communities have found the resources necessary to protect otherwise vulnerable women. Instead of trying to circumvent the law, the Jewish prenup serves as an example of how embracing modernity can enhance religious life in the United States.

Michael A. Helfand is an associate professor at the Pepperdine University School of Law and associate director of Pepperdine’s Glazer Institute for Jewish Studies.

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