Fri, Dec 11, 2009
By Terry Baynes
Hannah Nagila’s sons are 3 and 5 years old, and they already know what an agunah is. They have told their mother what their father tells them: “Daddy says you’re going to be an agunah until you pay back every cent.”
Agunah is the term for a Jewish woman chained to a dead marriage. Under Jewish religious law, a husband must issue his wife an official bill of divorce, known as a get, to end an Orthodox marriage. The central provision of the get is simple: “You are hereby permitted to all men.” Without a get, the woman is branded an adulteress as soon as she enters another relationship. She cannot remarry under Jewish law, and any child from another man is labeled a mamzer, or bastard child. A mamzer can only marry another mamzer or a convert.
Historically, agunah cases were the result of a husband’s death, disappearance, or mental insanity. Today, they more often stem from vindictive husbands who exploit the get as a form of control. The get becomes a bargaining chip—leveraged for large sums of money or custody of the children.
Hannah Nagila, who asked to go by her Hebrew name, says that her husband is clinging to the get as the last vestige of power he can lord over her. The two finalized their civil divorce in Virginia over a year ago. The judge ordered her husband to pay child and spousal support and granted Hannah primary custody of the children. Her husband has them every other weekend.
“The worst part,” said Hannah, “is that he won’t stop fighting for custody of the kids.” Hannah has also heard, through their boys, that her husband won’t grant the get until she pays back the three years of child and spousal support ordered by the judge. “That’s thousands of dollars I do not have,” said Hannah, who spent all of her savings on the civil divorce. She works as a chiropractor out of her home, trying to build her fledgling practice.
Hannah made her first request for the get in front of the family law judge during the divorce proceedings. She had come to rely on court appearances to move the case forward. Her husband, she said, “would play games and hold up the process. The only way to get him to do anything was to pull him in front of the judge.” Hannah arrived with the get in hand and the two witnesses required under Jewish law. Her husband refused to sign. In the final order, the judge wrote that the court cannot compel a party to sign a religious document.
Soon after, her husband filed a motion to return to court. He alleged that the phone calls from Hannah’s lawyer about the get were a form of harassment. The judge threw out the claim. By that time, Hannah had sought the aid of a rabbi from Richmond, Virginia. The rabbi accompanied Hannah to that court appearance, hoping to confront her husband about issuing the get. As the rabbi tried to catch up with him after the hearing, Hannah says, her husband literally ran out of the courthouse.
So Hannah turned to the Organization for Resolution of Agunot (ORA), a non-profit organization in New York that helps Jewish women obtain a get in accordance with Jewish law. The organization is currently handling approximately 65 cases and has helped resolve over 100 since 2002. The Director of ORA is an upbeat young man named Jeremy Stern. He called Hannah’s husband to try to persuade him to issue the get. Stern asked him: “Do you want to stay married to her? If you want to move on, why are you holding onto this marriage?” Her husband’s response was to yell and threaten Stern, says Hannah.
Hannah solicited help from a New York rabbinical court, or beth din, which sent her husband the final letter, including the seiruv—a contempt citation for his refusal to appear. Yet Hannah still remains chained to the marriage and without a get.
A Get Freely Given
A get is not unilateral. A wife also needs to accept the get in order for a man to be free to remarry. Yet the ban on men remarrying is much less severe under Jewish law. The man is not labeled an agunah, and his future children aren’t illegitimate. Still, according to figures released by the Chief Rabbinate of Israel in 2007, approximately equal numbers of Israeli men and women were bound by their spouses in 2005 and 2006.
The vast majority of ORA’s clients are women, Stern says. He reports only half a dozen cases in which ORA has represented a husband whose wife refused the get. Yet Stern emphasizes that ORA’s real client is the get: “We want to ensure that the get is given, free of extortion.”
ORA aims to open up the lines of communication. Stern often serves as a go-between for the parties, lawyers, therapists, social workers, and rabbis. When that fails, he resorts to pressure.
Under Jewish law, marriage is a private matter—a transaction between two individuals who promise to support each other. The rabbi doesn’t marry the parties; they marry each other. Therefore a get must be consensual and granted out of the husband’s free will. But, once the rabbinical court has issued a contempt order, community coercion and ostracism are fair tactics.
ORA organizes protest rallies outside the recalcitrant husband’s home, synagogue, and place of work. Demonstrators chant slogans and hold handmade signs that read things like “Give a Get.” Stern contacts the husband’s synagogue and lobbies for his expulsion. He urges the husband’s employer to fire him. Stern emphasizes that this shaming approach is only effective with community backing.
Recently, Stern went to a husband’s shoe store in Williamsburg to confront him and tell customers about what he was doing to his wife. The couple had been separated for over eight years, and the husband still refused to grant the get. Most passersby walked on. Someone scolded him: “Don’t air other people’s dirty laundry.”
“Brooklyn is a particular challenge for us,” said Stern. “There are so many small synagogues and communities. There isn’t the same sense of community.” If a husband is cast out of one synagogue, he can easily find another around the corner. In contrast is Teaneck, New Jersey, which Stern describes as a “recalcitrant-free zone” because of the concerned and cohesive community. Stern points to one agunah who even moved to Teaneck because she did not feel enough support in Brooklyn.
Stern notes that, in Israel, there is no separation between religious and civil divorce. Divorce happens through the religious court system. A recalcitrant husband may be thrown in prison, stripped of a driver’s license, and barred from opening a bank account or leaving the country. In America, the agunah’s only recourse under Jewish law is shame.
A Tenuous Relationship
As civil and religious divorce proceeded on two tracks in the United States, an uneasy relationship has developed between the two systems. The First Amendment bars government entanglement with religion. Yet the state has a strong interest in ensuring that a divorce judgment is final and that the marital ties are severed.
The New York legislature passed two laws that address the get problem without explicitly invoking religion. The first Get Law was enacted in 1983, with the support of rabbis across the religious spectrum. That statute provides that the court cannot enter a final divorce judgment until both parties have filed sworn statements, vowing that they have removed barriers to the other party’s remarriage. Less than ten years later, the state legislature added the 1992 Get Law which directs New York courts to consider the withholding of a get when dividing the marital assets between the parties.
In January 2009, Judge Jeffrey Sunshine of the New York Supreme Court applied the 1992 Get Law to a case involving a couple from Midwood. The husband was 80 years old, a Holocaust survivor, and a civil rights activist. He had been jailed during the civil rights movement in the south and had devoted much of his life to social and religious causes. Yet he refused to grant his wife a get.
Sunshine, in his judicial opinion, wrote that the husband “is unable or unwilling to move on with his life.” The husband insisted on delivering lengthy monologues throughout the trial and refused to cooperate even with his own lawyer. On the last day of trial, he was reluctant to enter the courtroom and conclude the trial.
The wife testified about instances of abuse during the marriage: husband’s pushing and hitting her on several occasions, dousing her in water, and holding a broken glass over her, threatening to carve letters of their last name into her stomach. Even though the wife summoned her husband to the prominent rabbinical court, Beth Din of America, in 2001, he had yet to grant her the get eight years later.
The wife introduced her rabbi as a witness to testify about the severity of life as an agunah. Not only can she never remarry; she becomes a pariah. “A woman who does not receive a get is considered almost as if she’s in mortal danger of her life because she has no ability to act in a normal fashion,” the rabbi testified. She cannot relate to married couples nor interact freely with single men.
Judge Sunshine applied the 1992 Get Law. To receive any marital property or alimony, the husband had to “voluntarily” give the wife a get within 45 days of the entry of the divorce judgment. Without granting the get, he would walk away with nothing. The judge reiterated that the court was not meddling with religious questions or doctrine. It was not mandating husband to deliver a get but merely executing the statutory scheme, which imposes financial consequences for upholding barriers to remarriage. If a woman is destined to remain single for the rest of her life, she should at least be afforded adequate resources, under the law’s logic.
But rabbis have nonetheless criticized the 1992 Get Law for undermining the free will requirement of Jewish law by imposing a threat of economic penalty. Some rabbis argue that the agunah problem is not under the jurisdiction of secular authorities. Michael Broyde, an Orthodox rabbi with the Beth Din of America and a law professor at Emory University, wrote in his 1995 critique of the law: “Secular interference in the internal workings of the Jewish law has been profoundly discouraged throughout Jewish history.” Yet Broyde concluded that there are many cases where gets issued in the shadow of the 1992 Get Law are still valid under Jewish law.
Despite their discomfort with secular interference, rabbis are not necessarily resigned about the 2,000-year-old agunah problem. One rabbi, Emanual Rackman, was particularly sensitive to the plight of the agunah. He sought a real and immediate escape for the living widows. He formed his own rabbinical court, Agunah International in Brooklyn, to help free women trapped in dead marriages.
In 1997, Rackman began to hear cases in his beth din and implement a new systemic solution to the agunah problem. He latched onto a principal in Jewish law called kiddushei ta’ut, error in the creation of marriage. The principle parallels the idea in contract law that a “meeting of the minds” is required for a valid business transaction. If a latent, serious defect existed at the time of marriage, without one party’s knowledge, there was no “meeting of the minds,” and the marriage may be annulled.
According to Michael Broyde, a marriage can be annulled under Jewish law if the woman discovers the serious defect in her husband after marriage, the defect was been present in the husband at the time of marriage, and the woman was unaware of it then. Accepted latent defects have included homosexuality and impotency.
Rackman’s beth din operated on the premise that a husband’s abusive behavior is a pre-marital latent condition, even when manifested only after marriage. The withholding of a get is a sign of a personality disorder and therefore grounds for annulment, according to Rackman. No get or divorce is even necessary.
Rackman’s approach incited passionate debate among Orthodox scholars. Broyde argued that under Rackman’s interpretation, any conflict between spouses could signal a latent defect sufficient to invalidate the marriage. It threatened all Jewish marriages, making them seem casual and flippant.
Rackman defenders excoriated Broyde for his insensitivity to the thousands of agunot whose lives and families have been destroyed. These are not women who suddenly wish to dissolve their marriage on “any and every unanticipated change,” argued Rabbi Haim Toledano of Agunah International in a written response to Broyde. These are women whose loving suitors metamorphosed into abusive husbands.
In retrospect, Hannah can pinpoint the warning signs in her husband. She pressured her to move away from her family and work when they married. “He didn’t want me to see my family,” Hannah said. She thinks back to his obsessive cleanliness and his demeaning sarcasm. “He had something bad to say about everyone,” she said. She knew about his painful upbringing, had seen how his father bullied his mother. But she thought she could show him a better way.
She never predicted this man would berate her over a spot of milk on the floor or how she parked the car; refuse to take her to hospital when she went into labor with their first son; steal things from her and lie; or hit her. She never imagined she would have to flee to a shelter with her children.
The divorce only escalated the manipulation. “He knew that I was terrified of him,” said Hannah. “So he would drop the children off with pictures of guns pinned up all over his car.” He fed the kids ham although they kept kosher. He videotaped their 5-year-old son in the bathtub, saying that his mother touched him sexually—proof to Hannah of brainwashing. It is no surprise to her now that her husband is withholding the get.
The Search for New Solutions
Emanuel Rackman died in December 2008. By that time, he and his beth din were shunned by the Orthodox establishment for having gone too far. Broyde argued that Rackman’s approach harmed the agunah, by creating the illusion of freedom when she, in fact, remained tethered under Jewish law. The “annulled” wives struggled to find an Orthodox rabbi who would remarry them.
Broyde instead advocates using the prenuptial agreement as a preventative solution to the agunah problem. The Beth Din of America drafted the form contract, which states that a husband has an obligation to provide his wife with support of $150 per day from the date of separation until the date the get is granted. The Beth Din of America, an Orthodox rabbinical court located in New York, is the arbitrator of the agreement. Stern says the premarital agreement has been very effective in cases where it is used. But for the thousands of agunot already trapped without an agreement, it holds little promise.
Advocacy groups like ORA are exploring new solutions that dovetail into civil law. In May 2009, the Supreme Court of California awarded a woman $75,000 in damages for “intentional infliction of emotional distress,” based on the withholding of a get for almost 30 years. A psychologist testified about the wife’s resulting depression and anxiety. The husband in that case had fled Israel decades prior and owed $127,000 in child support. He had set up a new life for himself in Tarzana, California, where he lived on the same block as several other recalcitrant husbands. He failed to appear in court to contest the wife’s legal claims, resulting in a default judgment of $202,000 against him. The woman is now trying to collect the money. Stern says that she would forgive the $75,000 in damages for emotional distress in exchange for the get.
In another case, a woman from Williamsburg has a civil contempt order against her ex-husband for child support in the amount of $70,000. She too has said that, for a get, she is willing to wipe the slate clean, says Stern. She obtained a proclamation from her beth din, stating that the result would not be a “coerced” get.
Yet the question lingers over what constitutes extortion. “Where is the line?” Stern asks. If a husband requests $5,000 for the get, the administrative costs of challenging him exceed the demand itself. ORA estimates that its own operational costs for a single case amount to approximately $7,500. Hasidic rabbinical courts have set the threshold at $100,000, declaring an exchange of the get for anything less non-coercive.
Hannah does not know what her solution will be. Social pressure is not plausible in Virginia, she says, where the Jewish community is so small. She also fears that a public protest would alienate people in the area or provoke anti-Semitism. “They may not even agree with the rabbis,” said Hannah. They may recoil at the concept of a get or question what’s wrong with intermarriage. Hannah’s sister thinks she should try to raise the money to pay for the get, but Hannah is resistant. She thinks she may have to wait until she finds someone new to marry. Perhaps the two of them can then pool their money together to buy her freedom.