Dear Blu and Yitz,
On lawyer’s advice, my (ex-)wife refuses to accept a get (yet the divorce is all her doing), and for over 10 years refuses me regular visits with our children. (The visits are irregular, essentially when she feels like it, on her lawyer’s advice.)
My question is, when she decides she wants a get (i.e., when she meets someone), would it be morally wrong for me to demand my excessive (i.e., excess over “normal”) legal expenses and/or some sort of damages for her improper actions?
My wife and I are observant Orthodox Jews so she would need a get. I obtained the appropriate “dispensation,” but I find the women I date are very apprehensive about me not having visitation and assume something is wrong with me.
Yitz and Blu reply:
We feel some unease in answering your question without knowing the following: Is your wife’s power to deny your visits to the children “when she feels like it” connected in any way to her refusal to accept the get? Why do women you now date continue to feel apprehensive even after you’ve explained why your ex-wife has no get? Finally, since your wife is “observant Orthodox” and “the divorce is all her doing,” why is she refusing the get? Presumably she wants to create a new life for herself and her children, yet without a get she may not date, much less marry anew. Is she simply cutting off her nose to spite her face, or is there another reason to explain her behavior? We also know that in every divorce situation, there are two sides to the story, and we are hearing only one side. Nevertheless, awaiting further disclosure, we will deal with your provocative inquiry in the context of the facts you presented: One issue is that your wife refuses to accept the get. This is almost a man-bites-dog-story, for the overwhelming majority of agunah cases are ones in which the husband is the recalcitrant: endlessly refusing his wife a get in order to block her chances for remarriage; or blackmailing her for financial and child custody concessions in return for a get. A case such as yours, however, of a women using her halachic power to refuse the get is quite rare though equally shameful. A second issue it that she is running up your legal costs through her capricious behavior regarding visitation rights. You believe that someday in the future she will want to marry again and will come to you for a get. You are contemplating the possibility down the road of using your halachic leverage over a get to get your just due: Until she pays up for legal-fees-plus that you have unfairly incurred in trying to see your children, you will withhold the get. In essence, you want to bridge two separate, issues — get and visitation, and to your credit, you ask whether such action would be morally right. We think the linkage is not good. It is neither moral nor ethical, no matter how wrong she is, no matter how sweet revenge might feel, no matter that she has monetarily damaged you. A get should be that which it was intended to be — consensual halachic closure to a failed marriage. It should not be a tool in the hands of one partner or another. Two wrongs do not make a right. And on a practical level, should you try to blackmail her when she finally comes calling for a get, your action may well backfire. Even though she has refused a Jewish divorce for such a long time, she can level a charge of me’agen (one who renders his wife an agunah, or “chained wife”) against you, and that stigma will stick to you longer than you think. Having separated here get issues from visitation abuse, we turn to each of those matters separately. Her refusal of the get is intended to spite you. (There seems to be no other reason, for by not securing her own release through a get now, she cannot begin to create a new social life.) You have been wronged, and we believe that those who fight for women’s dignity must not slip into indifference when a man’s rights are violated. The obligation of the husband to secure the wife’s consent to the get was established by Rabbeinu Gershom, who lived in the 10th and 11th centuries. He instituted this measure to ensure that women not be forcibly divorced, not be put aside against their will. Her voluntary consent to divorce had to be won. Any woman who takes a legal mechanism intended to protect her and turns it into a tool to exploit or extort her husband should feel the censure of the community, just as we call for community sanctions against a recalcitrant man. As mentioned above, cases of female recalcitrance such as yours are rare, but cases of male recalcitrance are not. The agunah problem exists in every community. Why is there such a stark statistical difference between male and female recalcitrance? Are women categorically nicer and less mean-spirited in a hostile divorce? Of course not! The answer lies in the protection Jewish law affords a husband from a recalcitrant wife in a heter meah rabbanim, a document signed by 100 rabbis that gives halachic release to a husband to take a new wife in the event that his previous wife declines or is unable to accept a get. You mention that you have “a dispensation,” and we presume this to be a heter meah rabbanim that enables you to go forward with your social life. There is debate in the agunah activist community as to whether the heter should be allowed altogether. (Rabbi Joseph B. Soloveitchik, z”l, felt its use should be very limited, to prevent abuse.) The two of us differ on the matter, with Yitz positing that the heter be disallowed until such time as a similar loophole to free a woman from the clutches of a recalcitrant husband exists. Blu believes that each case must be decided individually, that a husband victimized by a recalcitrant wife should not be punished for a fault in Jewish divorce law that gives men leverage over get. But we do share the view that the Orthodox rabbinic leadership of this generation has failed its responsibility — to the class of women, to the community and to the ethics of halacha. In their inaction in not eliminating the actual and potential mischief by a me’agen, the rabbis are party to morally compromised behavior and to the chilul Hashem, the desecration of God’s name, that agunah stories entail. Finally, regarding legal costs generated by your ex-wife’s wrongful behavior in visitation rights: We believe you have a legitimate claim against her. Lawsuits — especially for damages — tend to be counter-productive and equally likely to derail a settlement, but it seems as if you are way past congenial discussion for settling these issues. Thus, as you have no other recourse, you should sue for these damages in civil court. You should do this long before she comes to you for a get, not only to recover your losses but to remove from her hand the barriers she erects to visiting your children. You may have to compromise on damages, but if the suit compels her to comply with fair visitation rights, you will have won something more valuable. Everyone knows that a divorce can bring out the worst stuff in a human being. Men and women who are otherwise perfectly nice people succumb to their bitterness and exhibit the nastiest behavior. We hope that you will not try to punish and avenge but rather take the high ground. It will also serve you well with your children, and help you to move on and achieve future happiness.
Blu Greenberg was the founding president of the Jewish Orthodox Feminist Alliance. She is the author of “On Women & Judaism” and “How To Run A Traditional Jewish Household,” among other books. Rabbi Irving “Yitz” Greenberg was the founding president of CLAL - The National Jewish Center for Learning and Leadership and served as the chairman of the U.S. Holocaust Memorial Council. He is the author of “The Jewish Way: Living the Holidays,” “Living in the Image of God: Jewish Teachings to Perfect the World” and “For the Sake of Heaven and Earth: The New Encounter between Judaism and Christianity.”