Agunah and Communal Takkanah/Rabbi Menachem Rosenfeld,JD

I was in attendance at a recent Shloshim shiur dedicated to the memory of the late Rav Ovadia Yossef Z’L. One of the agenda topics was the position that Rav Yossef Z’L took towards conversions. One of the audience members asked, as an aside, about the communal Takkanah (i.e. enactment) imposed upon Syrian Jews by which the community had accepted a ban against marriages with an individual who had converted for the sake of marriage. The speaker, Rabbi R. Hidary, indicated that this enactment had originated in other world communities (e.g. Argentina) and has met with universal acceptance within the American-Syrian community. As is true with any such enactment, it had been deemed to serve an important goal and was based on rabbinic policy and authority.

In recent days, we have been aware of yet another public discussion on how Agunah is dealt with by Orthodox Jews. Details of private matters have found their way into the public domain and Torah-true Judaism once again has been confronted with yet another potential crisis. While the number of Agunah women (and men) may not number more than a few hundred cases, the constant attention they generate makes us all wince in anguish. This is not a topic we prefer to discuss. It is certainly not a topic we wish to see in the public media.

Attempts to deal with the Agunah situation “al pi Halacha” have been both controversial and less than successful. We all realize that people may choose to abuse halachic norms and there is not always a ready solution we can call upon to render relief to the aggrieved. In addition, the community invariably gets into a discussion of who is right and who is wrong in the specific marital clash. We are, by now, accustomed to read that we cannot judge the matter until we have all the facts. In the interim, the full facts are rarely made available, and the community is made to look deficient in the eyes of many who are much too quick to judge us all.

As I think about the use of the concept of Takkanah, I believe there is an approach that might help alleviate at least some of these disputed matters. I do not believe that there are any reasonable people in our community who believe that rendering one an Agunah, when no controversy actually exists, is a proper path to take. The controversy often centers about what goals do justify the decision to withhold a get. Is denial of visitation rights a justification for such Get refusal? Is defamation of a party a justification? Are broken promises a reason for refusal? Perhaps it is precisely in this tragic situation where a concerted Takkanah by concerned communities might be able to make a difference.

The inability to find a conclusive solution to Agunah allows our detractors to accuse us of insensitivity and an anti-woman bias. (Although a man too can become an Agun, the overwhelming number of aggrieved parties are women.). It is time for our community to articulate the pain we all collectively feel when those who abuse the halachic order decide that they will not cooperate in the Get process. However, words by themselves are of little utility. The Alter of Slabodka once commented that a sigh is “traif’ as it often becomes an excuse for inaction. The sigh is the indication that we did what we could do and it is time to move on to other matters. This is not acceptable in the matter of Agunah. Communities such as yeshivas, Shuls, communal organizations, etc should undertake, via a Takkanah, to refuse to provide its services for those who use the get process for monetary gain or for inglorious purposes. How can this be done?

My proposal would be that all who are involved in Get-refusal matters need to try to reach a proper and dignified resolution of their issues. There are only a few recognized ways of doing this. A couple dealing with Agunah issues can decide to go to voluntary mediation is the hope of reaching a proper accord. Mediation offers the parties the chance to discuss their differences with a trained, neutral third-party, in the hopes of finding a solution. Mediation is one option a couple may decide to pursue.

An alternative route would be a resort to a panel that is constituted as an arbitration panel with binding authority. The decision they reach is no less binding than a decision that a Court would reach in its adjudications. The arbitration panel, however, is often quicker, more expert in the specific issues and a good deal less costly than is Court involvement. The parties can agree e.g. to go to one arbitrator, or a panel of three, after it has signed a statement that it will be bound by the arbitration decision.

The final option that the couple may wish to exercise is the presentation of all claims to a Beth Din which will serve in the same capacity as the arbitration panel. (Although this option is listed last in the sequence, it is clearly not meant to mitigate the function of the Beth Din. Rather it is a recognition that some parties would prefer the voluntary nature of mediation or the purported expertise presented by an arbitration panel that would be selected by the parties engaged in the controversy.)

Any of the above three options is capable of resolving all issues that stand in the way of full cooperation that must precede the get process. What happens however if a party does not wish to go to any forum or abandons the process before a resolution can be found. In such situations, the Takkanah would be invoked to ensure that the services of the school, Shul, or communal agency will be denied to the offending party. Surely, in some cases it will be difficult to determine who is the offending party. In such a case, a Beth Din determination would need to be sought. If one party refuses to go to such a tribunal, s/he will be deemed to be the offending party. If both parties refuse, they will both be deemed the offending party. It would be incumbent on the Shul, school, or agency, however, to require that the Beth Din be visited if the controversy was not resolved by the prescribed methods listed above.

The proposal I have outlined would place the Jewish community on record as stating that it will not countenance unethical behavior. It will indicate that the community is prepared to use its good offices to oversee reasonable ways of trying to resolve Get contests. Finally, the Takkanah will ensure that all are aware that we stand united in ensuring that we act, in all manners, as a “Kingdom of kohanim and a holy nation”.

One last word is in order.  The Takkanah of the Syrian-Jewish community did not spread to other groups, but it did not have to. It accomplished what its proponents felt was important for its adherents. A Takkanah regarding integrity in the Get process does not require universal acceptance. Any shul, or school, or agency can accept this responsibility for its own constituency. It puts people on record as being interested in doing something to control a most unfortunate phenomenon. It is a good deal more than the proverbial “sigh” that was rightly decried by the Alter of Slabodka. Perhaps it will spare one individual from Agunah status. Perhaps it will inspire others to look into this important matter with more dedication and creativity. That will be of the greatest value to the individual and to the community.

(I would like to thank my son, Rabbi Daniel Rosenfeld, of Erez Hemda in Israel, for his insights and reactions to this article.)

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The Children of Neviim/Rabbi Menachem Rosenfeld

(This post first appeared at Matzav.Com. In light of the Lakewood Agunah matter, it is reprinted here.MR)

 In my former work as a Bais Din Menahel, and in my present work as a Divorce Mediator, I have heard various suggestions and reactions from the people the Gemara Pesachim refers to as “Children of Neviim.”  People who have experienced our Batei Din have varied comments and suggestions that flow from their experiences. I have collected 8 of these below in the hopes that they will lead to some constructive discussion, and will serve as valuable feedback for our Batei Din and communal organizations.

1.  Rabbanim will deal, from time to time, with the anguishing tale that comes from an ex-spouse who is dealing with a non-cooperative mate who is not cooperating in the Get process. Rabbanim will advise the spouse and/or parents that for X dollars the mate can be “persuaded” to give the Get. While this proposal may “help” a specific individual, it does perpetuate the idea that a Get can be withheld for a financial ransom. The social problem that this creates is quite harmful to our community. Rabbenu Gershom did not wish to be ransomed from non-Jewish extortionists and yet we have, inadvertently, created the same situation in contemporary times, in some situations. Perhaps the time has come to hold a candid discussion as to whether or not such behavior truly furthers the goals of our community.

2.  Many people who have had Dinei Torah have lamented the role of “Toanim” (i.e. “advisors”) who prolong the Din Torah process and who will, on occasion, resort to behavior that is far from constructive. There are Batei Din like the Beth Din of America, which have barred the presence of Toanim on halachic and professional grounds. Do we wish our system of Batei Din to grant access to individuals who are neither professionally regulated nor trained for their roles in Dinei Torah? Should Toanim be allowed to be part of the Bais Din process?

3.  The number of Gittin given each year is far less than the number of Jewish divorces. Have we done everything possible to reach out to the non-frum members of our community and encourage them to use our Batei Din for the Get process? I have heard many individuals state that they would gladly seek out a Get but they were unsure if they would be well-received by the Batei Din, due to their non-observance. The benefit of such outreach to those less observant would of inestimable help to Klal Yisrael.

4.  By the nature of the Bait Din structure, every woman who comes to such a forum will be outnumbered by the number of males in the room. Can we make our Batei Din less foreboding by having these women greeted by female office members and by encouraging them to take a female friend along for support and Chizuk?  On occasion, a male will come to the Bais Din and will know one of the rabbanim. He will likely be greeted warmly by this acquaintance. This is less likely to occur when a female enters our Batei Din. These are small items but they require our attention and sensitivity. (When I mediate matters, I always try to be careful to spend my “face time” equally divided between the male and female. These are small concerns, but they can make all the difference in how the process is viewed by all parties.)

5.  The rise of divorce and litigation in our community, is a warning signal to our leadership. Civility is becoming a lost art. Rabbanim may wish to dedicate drashos, seminars, and communal efforts towards an embrace of messages about positive communication, Shalom Bayis, and proper ways to resolve disputes. Rabbanim may even desire to learn more about mediation techniques and promote use of ADR (Alternate Dispute Resolution”.) I stand ready, as do others, to volunteer to train Rabbanim in the basics of mediation theory so that the message of civility is brought to our communal consciousness.

6.  There has been a great increase in recent years in the number of frum therapists, social workers, mediators, etc. It would behoove Rabbanim to have formal relationships with such professionals.  A Rav once told me that Rav Pam ZT”L had been shown a book written on the topic of marriage and Shalom Bayis. When asked for a haskamah, Rav Pam said he would do so only if the author added the comment, in the book, that if the marriage as in peril, professional help had to be sought. There are many worthy individuals, and organizations, willing to be of assistance in such situations. It is of great importance that such “partnerships” be forged.

7.  The cost of litigation has spiraled out-of-sight. The average cost of a contested divorce is estimated to be $20,000. (The cost of divorce in the East is considerably higher due to the higher legal fees charged in this area.) It is a natural choice to allow Batei Din to be the forum for resolving marital and commercial disputes. In order for such rulings to be upheld by secular courts, Batei Din need to have clearly articulated policies and procedures.  The effort to universally achieve this is well worth it. Let the Bais Din be the first choice for disputes and not be the choice only when all other options fail. In addition, Batei Din need to get out the message that they stand ready to resolve all disputes that arise in our communities. This message cannot be emphasized enough.

8.  Most states require divorcing couples who have children, to take a course.  The course focuses on raising children who have been involved in a divorce process.  Should not our Batei Din be able to cooperate and develop a similar course from the Torah perspective? In addition, Bais Din personnel can be trained in spotting psychological issues, emotional needs, financial concerns, and need to be prepared to suggest proper referrals for such individuals.  There is more to a Get process than having the Sofer write 12 lines. Are we prepared to meet such challenges?

The above is mere food for thought.  The words may be mine, but the thoughts come from the “children of Neviim”. If this article is able to engage just a few minds in positive discussion, it will benefit us all. The challenge is great, but the structures already exist to implement these proposals.

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Beth Din and the Advocate/Rabbi Menachem Rosenfeld

I receive questions on occasion regarding a Beth Din advocate, or a “Toen”. The question is whether or not in a Divorce-related Din Torah, it is a good idea to come with a Toen. Some parties advertise their availability to serve in such a capacity. They might be Talmudic scholars. Nevertheless, my answer to this question is a resounding “No”.
Firstly, some Beth Din organizations do not allow a Toen to appear before them. This, by itself, gives some indication as to how a Toen is viewed in his professional capacity. A Toen professes expertise in Halacha. However, this is precisely what the Beth Din judges (“Dayanim”) possess. They do not need a third-party to point out halachic requirements and mandates. More important is the fact that a Toen often lacks the “Courtroom demeanor” often possessed by an attorney or legal advocate. Since financial constraints make it difficult to retain multiple experts for the legal proceeding, it is logical that it is best to choose a person who has the legal presence to help you organize your thoughts and develop your requests. Prefer the attorney over the Toen. If your Beth Din does not allow an attorney to appear, but does allow Toenim instead, you may simply wish to choose to take your matter to another Beth Din.
There is yet another reason for choosing to go to your Din Torah without a Toen. A Toen has no reason to seek to negotiate your matter without going to the Beth Din. An advocate or attorney does have the professional, if not financial, interest to help you resolve your dispute before a tribunal is called to action. A Toen may indeed have a place in commercial disputes, but I am not convinced that such a personality will help you in your Divorce-related matter. A divorce, even when amicable, is traumatic. You need to consider the potential trauma and how to mitigate it. Will a toen help you in this regard? My honest appraisal is in the negative. I have yet to hear of a bitter contest ameliorated by the collective efforts of Toenim. Consider this carefully and decide wisely.

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The “Costs” of Divorce/Rabbi Menachem Rosenfeld,J.D.

It is my belief that all indivduals going through divorce do not wish to harm their children or themselves. The following description of some of the “costs” of divorce may give people pause when they need to decide how to end their marriage. Divorce is costly; an agunah situation doubly so. The following comments are a condensed form of an article I have written a short time ago.

Divorce is increasing (now estimated to be well over 50% of all marriages) and the attendant problems they often usher in are increasing as well. We need to see the implications of divorce in its clearest sense. What ripple effects are caused by the greater prevalence of divorce?  What does society need to address in a time where family stability is being challenged? I will outline three areas of impact.

CHILDREN AT RISK

In recent years we have come to grips with the fact that we have children who need specialized care and educational opportunities. We call such children “at risk” because we understand that a lack of proper intervention may cause them to be lost to our people.  In the field of divorce, the work of one person stands out for thorough research methods. Her name was Dr. Judith Wallerstein. Dr. Wallerstein is reputed to have interviewed more divorcing couples than any other person in history. Dr. Wallerstein was curious if divorce affected the well-being of children. Early in her career, Dr. Wallerstein presumed that lower-class children were more prone to the harmful effects of divorce than were their better-positioned peers. Ultimately, Dr. Wallerstein concluded that class was not the determinant of how children would be harmed, or not, by the divorce in the family. What she did conclude was that children whose parents had an amicable divorce were less likely to be harmed by parental divorce than were children whose parents had a bitter and rancorous divorce.

Divorce rates grow and so do the number of our children who are “at risk”. What are we doing to deal with this challenge?

POVERTY

It is well known that when a couple divorces, each party is highly likely to be in greater financial peril than they were previously. A study cited in “The Divorce Revolution” found that women have a 73% drop in their standard of living after divorce.  What does our community do when people are not at the point of being impoverished, but they are experiencing dealing with new financial challenges they may never have experienced before?

The group of divorced individuals often become part of our marginally needy in the economic sense. What are we doing to deal with this challenge?

MENTAL HEALTH

Divorce is considered one of life’s most traumatic events. It is difficult for the adults and it is more difficult for children. Family members affected by divorce are prone to episodes of depression, “acting out”, withdrawal, feelings of guilt, etc. Many such individuals do not recognize their symptoms or do not wish to seek professional help. The reasons might be shame, lack of esteem, feelings of hopelessness, etc. At times, a family who was once affluent, but now beset by financial woes, will not wish to seek help because they are too proud to acknowledge their need to pay reduced fee or no fee. People who have just been divorced do not always step forward to get the assistance they need in meeting their mental health challenges. For a person who has experienced good health for all of their life prior to divorce, their new status brings them shame and bewilderment. (A recent article on divorce in “The Journal of Men’s Health” serves as an illustration of this concern. The article found that divorced men are 10 times more likely than married men to seek mental health counseling.) We know these people are out there. What are we doing to deal with this challenge? Where do the answers lie?

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Divorce and Financial Considerations/Rabbi Reuven Bulka

Both husband and wife, as they untangle, and wrestle with the complicated matter of financial arrangements, should disavow, to their own selves, any thought of making a killing on the deal, or really “sticking it” to the other. Each has the obligation to do the right thing for the other, at the same time as they make sure that the other does the right thing by them. The one usually follows the other.

Granted that the finances are a matter of contention in divorce, as much as finances can be a matter of contention within marriage. Nevertheless, the basic thrust should be towards assuring financial security, and not toward punishing the other by imposing excessive, unreasonable, and unattainable demands. This creates ill-will and resistance. And from a practical point of view, it is self-defeating. It is understood that there will be many situations in which one of the couple thinks his or her request is reasonable, but the other thinks it to be an exorbitant demand. Through the good offices of an objective third party (in Israel that objective third party being the Rabbinical Court), these matters can be adjudicated in an impartial, objective, and mutually fair way.

The system may have its problems, but its general thrust, one of fairness and equity, should be applauded. One tends to hear only the negative. It is safe to say that the public at large is not aware of many of the guiding principles that govern the approach of the Rabbinical Court in Israel. There are some bureaucratic problems. The Rabbinical Court is an officially recognized legal authority, and does get caught in the bureaucratic tangle that is inimical to the entrenched system. The system may move slowly, but the values of the system are salutary.

An Unused Option

The situation outside Israel is somewhat different than it is in Israel. The Jewish court outside Israel has no jurisdictional power to deal with divorce cases, aside from the purely religious area of the transmission of the Get. Unlike in Israel, where once the Rabbinical Court is approached, it has jurisdictional powers over all components of the divorce, outside Israel it is the secular courts which dictate what occurs in the divorce settlement. In most instances, a couple will approach the Rabbinical Court to finalize the Judaic side of the separation only after all other outstanding issues have been resolved, including the civil divorce, the financial payment, and the custody settlement. It is unfortunate that couples who divorce do not think of the Rabbinical Court outside Israel as anything more than a religious court for religious matters. The idea that Rabbis should be involved in the final disposition of the matrimonial property and of custodial matters is quite foreign to most Jews.

This is lamentable, since generally, Jewish life does not make this type of arbitrary division between the religious and the ordinary. It refuses to evince concern only for the “religious,” but not for the ordinary. Quite the contrary, the ordinary everyday dialectic is of vital importance in Judaism. The ordinary is itself potentially holy. The wide expanse of halakhic (Judeo-legal) literature on financial settlement in matrimonial matters, as well as the discussion of custody issues, is ample testimony to this.

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Divorce and Civility/Rabbi Menachem Rosenfeld, J.D.

(The following Dvar Torah is repeated here as the Parsha of this week reminds us of a powerful thought.)

There is a Medrash on Parshas Noach that is based on the Pasuk that “Tov HaShem LaKol V’Rachamav Al Kol Maasav”. We are expected to imitate the Goodness of HaShem, and Noach did so by providing for the animals in the Tevah. The Medrash bolsters this idea by telling of a divorced man who supported his ex-wife even though he had no such legal obligation. Why did he do so? The Medrash instructs that when he saw her state of poverty, he was overcome by feelings of humanity and kindness.  What is the Medrash telling us? Its message seems to be that while kindness to a former spouse is not easy to perform, it is a meritorious act to conduct ourselves with compassion and decency, notwithstanding the challenge of doing so.

It is not easy to be civil and cooperative when a marriage has been terminated. The natural impulse is to blame the other party for their role in disrupting our married state, our inner peace and our sense of  self-worth.  It is not for naught that Chazal describe that the sadness of divorce makes even the mizbaech weep tearfully. However, as sad as it is, the Torah demands certain behavior from us. Divorce does not exempt us from conducting our life in accord with Torah values and principles.

I believe that the overwhelming number of human beings want to do the proper thing. Why is it then that divorce in our community has often become a “contact sport”? I have heard many theories about this. My own intuition is that people marry with the thought that the marriage will last as long as the two individuals will live. We truly believe in “they lived happily ever after”. The dissolution of a marriage leads to a search for a villain. Who is responsible for what has just transpired? Who brought the marriage “train” off the tracks. In point of fact, such discussion accomplishes little. It hurts the children. It hurts the respective families. It does not allow the affected parties to move forward with their lives.

As someone once told me, hate is a full-time job. It saps you of your strength and your vitality. Leave blame behind and the attendant enmity it brings. If the door has closed on your marriage, plan for the rest of your life. Wallowing in anger or self-pity will not make the next chapter of your life any easier. Be kind to yourself. Grieve for your marriage for a short time, but then plot the strategy that will govern the balance of your life. The soul you save may be your own (and that of your children).

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Divorce and Victimization/Rabbi Menachem Rosenfeld,J.D.

I recently saw a lecture title relative to feeling victimized by divorce. Victimization comes about when a person feels powerless to change their circumstances. The odds are stacked against them! What can I do? I do not feel that couples who sign on to mediation feel this way. While it might be true that only one party truly wants the divorce, mediation teaches that both parties can put their imprint on the process, and negotiation, of the divorce terms. Indeed, a party can utilize mediation to discuss their feelings about the divorce, their treatment during the marriage, the way they wish to be treated in the future, etc.

Life can, at times, leave us with a sense that we are powerless. In fact, at times we are so. Want to avoid that feeling in the course of your divorce? By choosing mediation over litigation, you are taking back the reins of your new life, post-divorce. And you will do it with dignity and not a sense of vindictiveness. Mediation works; mediate don’t litigate

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