Thinking Through Gittin and Agunot in the Public Eye

Over the last few days, the story of one couple's divorce has been reverberating on the frum internet. The husband had refused to give the wife a get, apparently because he hoped to leverage the get to gain a concession on custody issues. He also seems to have demanded a massive amount of money in exchange for the get. The wife's perspective was portrayed in a New York Post article, which led to the current outcry. People on my Facebook feed and in the blogs and comments to them that I read almost universally excoriated the husband's failure to give his wife a get. One particular comment was my favorite, and if you're wondering whether it was your comment that gave me such enjoyment, you're likely in luck because it was the comment that everyone made.




"I don't need to know both sides of the story! There is no excuse to not give a get ever so I know he's wrong!"

Moral certainty is a fun thing, isn't it? I would like to have more of it, but I am very, very bad at it. When I see everyone agree on something my first reaction is always to assume that they're wrong. But the comments and story at least got me to analyze whether I had legitimate objections to the almost unanimous condemnation, and to try to articulate the objections.* Here goes:

Why are people upset at one tactic that one side has employed, when it's obvious that there are two sides to every story and more going on than meets the eye?

There must be something unique about "get withholding" that arouses people's ire. What is it? Is the angry reaction justified generally? Is it justified in this case?

Jewish Divorce Law Generally

It sounds terrible that a woman can be trapped at the will of her husband. The word agunah evokes women whose husbands don't give gittin simply because they want to torture their wives. We are concerned that the rest of society sees us as anachronistic, giving men such power over women. Many people feel  that if there were a rabbinic will to change or work around the halachot of get, then the rabbinate would be able to do it. (I am inclined to agree that this is true, with the ironic caveat that the more the rabbinate realizes that they are changing the halacha, the less likely they are to feel able to do it.)

But the state of affairs can be expressed differently as well. Jewish marital law requires both parties to consent to a divorce. Everyone knows the history - the husband used to have all the power to unilaterally end or continue the marriage, until the rabbinate (Rabbeinu Gershom) changed it so that the woman could veto a divorce as well. It can be said that Jewish law expresses a preference for marriage finality, since it is only possible to divorce if both parties agree. But here's the thing about law: while it is the duty of lawmakers to determine that the law is more beneficial than detrimental, once something becomes law it applies in cases where the detriment outweighs the benefit. "Three strikes" sentencing rules result in fifty-year sentences for selling pot three times. Intellectual property statutes written to protect studios from commercial bootlegs results in million dollar damage assessments against basement-dwelling file sharers. A halacha that works most of the time and expresses, in part, protection for women, also leads to the aguna crisis,**and has become a rallying point for activists and the public.

In a perfect world (the only imperfection being that laws must apply indiscriminately) what would the Jewish divorce framework look like? Should either party be able to force a divorce? Perhaps, but allowing that would have a strong effect on marriage. The dual veto power makes marriages last longer, not only by making it more difficult at the moment of divorce but because for the duration of marriage, working toward ensuring its continuity is substantially easier than leaving. Allowing unilateral divorce would undoubtedly result not only in agunot being freed; it would result in divorce being far more convenient. Is that a good thing? Or at least, do we understand why it might not be?

When people act rationally, Jewish divorce law is easily defended. Marriages that are bad enough can end, and marriages that are on the fence are encouraged to improve rather than divorce. Since neither a husband nor  wife can get remarried without a get, neither side has an incentive to refuse the other when a marriage is beyond hope. The problem is that some people don't act rationally. Rabbeinu Gershom addressed that in including the "heter meah rabbanim", wherein if a woman cannot or irrationally refuses to consent to a divorce, the husband has an alternative way out. Unfortunately, the Torah's requirement of a get to free a woman has no such exemption. This compounds the problem from a public relations standpoint, because women don't have that option and if a husband cannot or irrationally refuses to give a get, the woman has no recourse where a similarly situated man would.

The public relations problem has had wide ranging effects. While in most divorces a get is given in keeping with rational behavior, the plight of victims of irrational and/or no-longer-religious ex-spouses and the fact most such victims are women is heart-rending.

Thus, if the Jewish law were to be changed, the best alternative would be to allow a "heter meah rabbanim" type loophole for women as well. While a pre-nup that requires a get on the basis of civil divorce sounds good at first, the outcome would be that the Jewish protection of marriage would be equal to whatever the state determines. If a solution is found, it would probably take at least some greater preference for marriage over divorce than New Hampshire law to get the Haredi rabbinate on board.

The Refusal to Give a Get in the Current Headline Case

In the case that is currently under discussion on the frum internet, (as well as in the case that went through this cycle a year ago,) it seems highly unlikely that anyone is acting irrationally. The husband is still frum, and is still young. Presumably, he would like to get remarried too, and he cannot do that until he gives a get. So why isn't he giving a get?

Get Refusal is not a Uniquely Dirty Tactic

Many people say it doesn't matter why he's not giving a get, one simply doesn't withhold a get. But in this context, why is withholding a get worse than any one of a thousand other legal but nasty ways to pressure someone? There seems to be little danger that a get will never be given; the husband has apparently already offered it on certain conditions (more on that later) and whether he gets those demands or not, he'll have to give it if he wants to get married. It is deeply degrading for ones personal life to be subject to an ex-spouse's whim, but there are dozens of deeply degrading tactics that are common in divorce; none of which receive this kind of outcry. According to Google, divorcing spouses often file for restraining orders based on non-existent abuse; allege child sexual abuse; agree to pay outstanding bills but then declare bankruptcy and force the ex-spouse to pay; intercept mail, raise embarrassing details of sexual activity in court, agree on a custody settlement and then fail to abide by it, etc. None of those have ever resulted in even one mass protest or even a post on Finkorswim or Haemtza or even Failedmessiah (with the possible exception of last year's agunah outcry where the husband's sparse defenders blamed custody shenanigans for his refusal to give a get.)

It seems clear that get refusal is such a lightning rod for criticism because it is easy to prove (unlike false abuse allegations), happens for a period of time (unlike the bankruptcy trick), and happens during the divorce (unlike various custody shenanigans). But the main reason that it gets such attention is that unlike all the other dirty tricks, which directly relate to the disputes at issue in a divorce, get refusal is associated with the irrational spouses who, out of plain cruelty and with no purpose, simply refuse to give their wives gittin. If that is true, then it is incorrect to treat get giving as the last sacred duty which must never be violated. Of course, it's dirty to withhold a get, but it is no different from other dirty tactics. Like other dirty tactics, it may even be justifiable under certain circumstances. And even if it is not justifiable, bystanders should not weigh in on disputes they have no connection to simply because a particular dirty tactic is involved.

The Get is Likely a Red Herring

As I wrote above, the husband in this case seems to have made a set of demands in exchange for the get. Leaving aside the fact that get refusal is a dirty tactic, what does that tell us about the case? It's possible that he's simply trying to cause his ex-wife pain, has no legitimate goal, and will simply wait until he's ready to get married and then give a get. But the costs to him are much too high to support that. Even before the Post article, the story was fairly well known. Any future shidduch would inevitably know about this chapter and require a compelling explanation. The husband's family and the wife's family are part of closely aligned social groups, and the husband would need to justify his behavior to people who have personal relationships riding on it - and in fact his extended family seems to agree with his behavior despite the consequences. This leads to the conclusion that there is some substantive matter in dispute, and the husband is conditioning the get on winning that dispute.

The Post article mentions a custody dispute in passing, along with "one proposal" from the husband's side that demanded $350,000 and more custody for the husband. The rest of the article is about the get, with liberal sprinklings of some dirty divorce tactics I mentioned earlier (which I concede are in reaction to the get refusal) like abuse allegations and suggestions of a personality disorder. The article clearly hopes for us to walk away thinking that the issue here is the get, despite the fact there is at least some issue over which the get has become a bargaining chip. The article also mentions all of the phone calls that people have made to the husband's parents and grandparents, who take the husband's side. Even if the husband himself is a psychopath who doesn't care about the consequences, his family members have a lot to lose*** if they support someone. That they continue to support him suggests that to those who are familiar with the conflict, the get is not the main issue. The wife's side continues to focus on the get because, of course, they would like the get, but also because they want to use the get in their own manner - as a compelling story to get the public on their side.

People Should Not Take Sides in a Conflict that Does Not Involve Them

This has been a long way of leading up to how I feel about this, which is that we should not get involved at all. If we heard on Facebook or through an article in the Post about two business partners who had a falling out and one grabbed all the partnership assets and used them to sue the other in secular court, only Failedmessiah and Yudel Shain would write about it. Most people understand that stories have two sides to them and do not get involved. In this case, our reaction should be similar. While agunah as a general matter presents a challenge - there are enough crazy people that we have all heard of legitimate get-refusal-victims, and women are at a genuine disadvantage compared to men - that does not necessarily weigh on any particular dispute. In fact, it seems likely that the wife in this case is hoping that the public will uncritically compare her to more tragic agunot, to further her cause in a non-analogous situation.



Footnotes:
*Note that there were also a bunch of people saying things like, "he really sounds like a psychopath! I think I read somewhere that psychopaths can't read, so this article isn't going to help! Oh, no, those are dyslexics that can't read! Sorry pls. ignore!" Those comments don't need a response because anyone who takes one combatant's depiction of the other combatant at face value is just stupid.

**I thought about putting the word crisis in quotes but decided instead to write about that thought in a footnote. 

***Note that this is not an appeal to authority. It's not that his grandfather must be right because he's a rabbinic figure, it's that there must be some reason he's willing to support his grandson despite the consequences to him.