This chapter discusses the possibility of imposing various outside pressures to bring about the giving of a get. In an earlier chapter, we discussed when a beit din may coerce a husband to give a get. Since the Halachah restricts the situations in which a husband can be coerced, it is important to develop measures that fall short of coercion, yet push the husband to give a get.
Communal Sanctions
Even when a beit din may not coerce a husband to give a get, attempts must be made to convince him not to unfairly withhold a get. Rav Yosef Eliyahu Henkin (Eidut Leyisrael 46) writes that "one who withholds a get because of unjust monetary demands is a thief" and compares such behavior to murder. Rav Yaakov Kaminetsky (in a letter printed in the beginning of Rav Tzvi Gartner's Kefiyah B'get) derides men who unfairly withhold gittin as "oppressors" and urges helping their wives.1This attitude appears to be rooted in a ruling of Rabbeinu Yerucham (Sefer Mei'sharim 23:8). The Rama describes one possible way to help obtain a get without coercion (E.H. 154:21):
[In] any situation where the Halachah does not permit the husband to be coerced with whips [to give a get], the husband may not be excommunicated. Nevertheless, [the beit din] can issue a decree that all Jews must withhold any favors from the recalcitrant spouse and refrain from engaging in business with him, circumcising his sons, burying his deceased relatives, and any other sanction which beit din wishes short of excommunication.
Rabbeinu Tam initiated these sanctions, so they are known as harchakot d'Rabbeinu Tam. The halachic basis for these sanctions is that a man cannot be coerced to give a get, but withdrawing favors from him is allowed. Coercion refers specifically to threatening a husband with physical harm or with having his property taken away. Here, no harm is done; rather, things that might have been bestowed are withheld.2There are also other theories of why harchakot d'Rabbeinu Tam do not constitute coercion. See Rav Tzvi Gartner's Kefiyah B'get (118:3-4).
Not all authorities agree with Rabbeinu Tam and the Rama. The author of the Shach (Gevurot Anashim 72, cited by Pitchei Teshuvah, E.H. 154:30) believes that these sanctions are coercive. The Chazon Ish (E.H. 108:12) rules in accordance with the Shach’s strict view. On the other hand, the Aruch Hashulchan (E.H. 154:63) rules in accordance with Rabbeinu Tam and the Rama that these sanctions do not constitute coercion. This is also the view of Rav Bezalel Ashkenazi (Teshuvot 6 and 19), the Maharam Lublin (Teshuvot 1), the Eliah Rabbah (13), and Rav Yitzchak Herzog (Techukah Leyisrael Al Pi Hatorah 3:202,209 and Teshuvot Heichal Yitzchak E.H 1:1).3Rav Herzog even suggests that placing someone in American prison does not constitute coercion, noting that the classical coercion described in rabbinical sources is flogging, and being imprisoned in America is not as bad as being flogged. However, Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 1:137 and 4:106) and Rav Shlomo Zalman Auerbach (Moriah 19:1-2:61) both implicitly reject Rav Herzog's view. It should be noted that Rav Herzog suggested this extraordinary leniency only in a case that also involved several other lenient factors. It also seems to be the view of Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 1:137).
Moreover, a student of this author suggests that the Shach’s argument does not apply today. He argues that imposing harchakot d'Rabbeinu Tam in the Shach's time (seventeenth-century Poland) was as severe as excommunication (nidui).4The excommunication described by the Shulchan Aruch (Yoreh De'ah 3:34) is more severe than harchakot d'Rabbeinu Tam. It precludes counting the excommunicated person in a minyan or eating with him and prohibits him from washing his clothes, wearing leather shoes, or cutting his hair. As we have cited from the Rama, excommunicating a recalcitrant husband in this manner for refusing to give a get constitutes coercion. During that period, Jews depended on each other for earning a livelihood. However, sanctions in our communities certainly have less impact than excommunication in previous generations, due to our lack of communal unity. Thus, it is likely that even the Shach would not object to imposing harchakot d'Rabbeinu Tam in our communities. However, it is possible that they remain coercive according to the Shach in a cohesive Chassidic community.
In practice, many batei din adopt a compromise approach. They impose harchakot d'Rabbeinu Tam only when the wife unilaterally decides to end the marriage (to'enet ma'us alai) and provides a reasonable basis (amatla mevoreret) for her actions (see Birurim B'hilchot Hareiyah, p.243). In such a case, many authorities permit full coercion of a husband to give a get (see Teshuvot Yabia Omer, vol. 3, E.H.18). Thus, a double doubt (safeik s'feika) exists regarding the permissibility of harchakot d'Rabbeinu Tam. First, It may be that harchakot d'Rabbeinu Tam are not coercive. Second, perhaps if a woman has an amatla mevoreret for her claim of ma'us alai, then the Halachah permits coercion.
Accordingly, a beit din may impose strict sanctions on many recalcitrant spouses. An example of implementing these sanctions appears recorded in Rav Ovadia Yosef's Teshuvot Yabia Omer (vol. 7, E.H. 23) and Rav Eliezer Waldenberg's Teshuvot Tzitz Eliezer (17:51). Rav Ovadia and Rav Waldenberg present a decision of the Beit Din Hagadol of the State of Israel where they, along with Rav Yitzchak Kulitz, imposed harchakot d'Rabbeinu Tam on a recalcitrant husband. The husband yielded shortly afterwards and gave his wife a get. Such sanctions have also been imposed by the Va'ad Harabbanim of Riverdale and have proven successful in prodding the recalcitrant spouse to participate in a get ceremony.
It should also be noted that a spouse who is summoned to beit din and fails to respond can be issued a seiruv, which states that the spouse is in contempt of beit din. In such a situation, all agree that the spouse can be excommunicated and banned from entering a synagogue (Shulchan Aruch and Rama, Yoreh De'ah 334:11,43). The spouse is being coerced to appear in beit din, not to participate in a get ceremony.
1983 New York State Get Law
A helpful tool in obtaining a get from a difficult spouse is the 1983 New York State Get Law (Domestic Relations Law 253). This law calls for the judge in a civil court to withhold a civil divorce until the party who filed for divorce5This law withholds a civil divorce only from the plaintiff. 6Rav Henkin wrote his letter in 1954, when the Union of Orthodox Rabbis of the United States and Canada first proposed this law. New York State did not enact this law until 1983, ten years after Rav Henkin's death. 7These authorities include Rav Yaakov Kaminetsky, Rav Moshe Stern, Rav Shimon Schwab, Rav Yechezkel Roth, and Rav David Cohen. removes all barriers to remarriage (i.e., gives a get). Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 4:106) and Rav Yosef Eliyahu Henkin (letter printed in Techukah Leyisrael Al Pi Hatorah 3:206)rule that this law is not considered coercion of the husband to give a get. Rav Yitzchak Breitowitz (Between Civil and Religious Law, p. 203 note 599) cites several other prominent rabbis who also approve of this law.
This law is not coercive, as it in no way punishes the husband. He merely gives a get in exchange for a civil divorce. Rav J. David Bleich (Bintivot Hahalachah 1:37) explains that, according to civil law, one does not have a "right" to a civil divorce. Rather, it is a privilege bestowed on a citizen by the court. Withholding a civil divorce until the husband gives his wife a get is the equivalent of not giving the husband a gift until he gives a get.
This "Get Law," enacted in New York State, has proven effective in motivating some recalcitrant spouses to give a get. In light of its moderate success in New York, we should consider lobbying to pass such legislation in all jurisdictions where Jews live.8Rav Yitzchak Breitowitz (Between Civil and Religious Law, pp.181-182) mentions that attempts in several states to pass similar legislation have been unsuccessful. He discusses at length the American legal issues surrounding such laws (pp.179-202). Interestingly, Rav Asher Ehrentreu (a member of the administration of Israeli rabbinical courts) related to this author that he persuaded a judge in a former Soviet republic to withhold a civil divorce until the husband gave his wife a get.
The Controversial 1992 New York State Get Law
Despite its many successes, the 1983 Get Law has not facilitated the resolution of all cases of igun in New York State. If a husband feels so determined to harm his wife that he does not mind foregoing a civil divorce, this law will not pressure him. Furthermore, if the spouse who is listed as the defendant withholds a get, the plaintiff cannot use this law to his or her benefit. Consequently, some felt the need to enact additional legislation to help obtain gittin from recalcitrant spouses.
Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 4:106) further clarifies precisely what constitutes coercion. He explains that if the judge fines a husband for failing to give a get, this constitutes illicit coercion and invalidates a get. If, however, the civil judge, wanting the husband to give a get, makes the husband pay his wife a great deal of financial support (demei mezonot), the get is undoubtedly valid in Rav Moshe's opinion. Since no formal link exists between the alimony order and the giving of the get, the judge's order is not considered coercive (see Pitchei Teshuvah, E.H.134:11, and 154:4). However, a get issued on the heels of a fine imposed by a judge for failure to give a get is invalid, since the judge's formally links the fine to the get.9This is how Rav Zalman Nechemia Goldberg explained Rav Moshe's responsum to this author. It may be, however, that Rav Moshe requires not only that there be no formal linkage between the get and payment, but also that the substantive reason for the payment be to support the wife and not to fine the husband. This difference is critical, should a judge decided to obligate the husband to "support" his wife by paying a sum that is well above the cost of living. Rav Yitzchak Breitowitz (Between Civil and Religious Law, p. 137) presents several possibilities of how to understand Rav Moshe's ruling.
This issue is the crux of the debate concerning the halachic validity of the 1992 New York state law. This law (DRL 236B) states that a judge shall consider the effect of either side's refusal to remove barriers to remarriage (in other words, to give or receive a get) when dividing the couple's property and establishing the sum of alimony.
This law can be read as a financial penalty imposed on the husband for his refusal to give a get. According to such a reading, a husband who gives a get to avoid the ramifications of this law is considered coerced, and the get is invalid. Alternatively, one may interpret the law not as a penalty but as a provision for a recalcitrant husband to provide his wife with monetary support. Indeed, Rav Kenneth Auman told this author that he asked two judges how they interpreted this law, and each judge responded by offering one of the two possible interpretations. Rav Tzvi Gartner (Tradition 32:3:93) cites two actual court cases that highlight this problem. In the first case, a New York judge used the get law to penalize a recalcitrant spouse for only belatedly participating in a get ceremony. In the second case, the same judge ruled that the get law merely "addresses the parties' status as they come before the court and how that status will affect their economic futures."
Considering that the get law's vagueness is its obvious flaw, Rav Zalman Nechemia Goldberg told this author that the solution to this problem is simple. The law must be amended so that it will unambiguously be a support provision, making its implementation halachically valid according to Rav Feinstein's ruling.
However, this solution is not as easy as it seems. When a civil court judge awards financial support in the form of alimony, Rav Moshe permits performing a get even if the alimony was not warranted according to Halachah. However, halachic authorities hotly debate this matter. Many of them disagree with Rav Moshe and believe that any monetary obligation that a beit din would not impose constitutes coercion to give a get. For example, they believe that if the judge raises the alimony of a recalcitrant husband (which the judge will reduce if the husband gives a get), he is coercing the husband to give a get. Indeed, both Rav Shlomo Zalman Auerbach and Rav Yosef Shalom Eliashiv (Moriah 19:1-2:58-61) rule that the 1992 New York State Get Law is halachically unacceptable and urge its immediate repeal. Rav Eliashiv clearly indicates that he considers the monetary payments imposed by the court on the husband to constitute coercion.10For further discussion and debate of the 1992 law, see Teshuvot Beit Avi (5:169), The Journal of Halacha and Contemporary Society 27:5-34), Moriah (19:1-2:53-57), Between Civil and Religious Law (pp. 209-238), and Tradition (32:3:91-95). Teshuvot Igrot Moshe (E.H. 3:44) is often quoted in defense of this law.
Israeli Rabbinical Courts
In Israel, rabbinical courts have the power to issue certain punishments against men who deny their wives gittin.11See Rav Yitzchak Breitowitz's Between Civil and Religious Law (pp. 168-177) for a review of the attempts by the State of Israel’s secular courts to curtail these powers. In cases where absolute coercion is warranted, they can sentence a recalcitrant husband to jail. Even when coercion is not warranted, they have certain powers, such as preventing the husband from leaving the country, which some dayanim practice12For a discussion of whether preventing a husband from leaving the country constitutes coercion, see Kefiyah B'get (Chapter 76) and Techumin 15:224-225. The following case illustrates another potential tool of batei din in Israel even when they do not fully coerce - the power to deny a prisoner parole. Rav Shlomo Dichovsky, one of the dayanim who adjudicated the case, describes it in detail in Techumin (1:248- 254)..
After a year of marriage, the wife sued for a get, charging that her husband had been sentenced to four years in jail for theft and drug charges. The beit din ruled that the husband "must" ("chayav") give a get. Chayav is the modern Israeli beit din term for the Talmud's yotzi. In such a case, there is a dispute regarding the permissibility of coercing the husband to give a get (see our opening chapter). According to the accepted practice, beit din may impose harchakot d'Rabbeinu Tam on such a husband, but he cannot be coerced to give a get. At the conclusion of the court hearing, the husband cursed and spat at the dayanim and was promptly returned to jail.
The beit din faced an interesting option for pressuring the husband. The policy in Israeli jails is that a third of a prisoner's sentence is removed for good behavior. The beit din could threaten to recommend that the parole board deny the prisoner early release due to his misbehavior in beit din, unless he gave his wife a get. If he gave a get, the beit din would recommend early release. Since Halachah does not permit coercing this man to give a get, the question is how to define such a recommendation. One could argue that it constitutes coercion, as it is a punishment of imprisonment for withholding a get. Alternatively, perhaps the beit din is merely offering to do the husband a favor and forgive the husband for his misbehavior if he gives his wife a get. Denying the husband a favor is not considered coercion (see Igrot Moshe, E.H. 4:106).
Removing an Unjust Penalty
The Rivash (Teshuvot 127) rules that if the coercive element is not directly linked to the get, the get is unquestionably valid. For example, if a man was imprisoned for abandoning his wife and gave her a get to secure his release, the get is undoubtedly valid. He was imprisoned to motivate him to return to his wife, not to give a get. Although giving a get obtained his release, the cause of his continued imprisonment was not his refusal to give a get. The Rivash (132) issues a similar ruling regarding a man who was imprisoned for violating a communal edict forbidding weddings without the presence of ten men at the ceremony. The man gave a get to secure his release from prison. The Rivash rules that the get is unquestionably valid, as the imprisonment was not imposed for refusing to give a get.
The Rivash's responsa would seem to justify offering the husband an early release only if he gives a get. The husband was imprisoned for drugs, and his ongoing imprisonment is due to the drug crimes and the inappropriate behavior displayed toward the dayanim. However, the Tashbetz (1:1) and Ra'anach (Teshuvot 63) disagree about applying the Rivash's ruling if the coercive element was imposed unjustly. The Ra'anach permits such a get, while the Tashbetz rules that it is questionable if a get given under such circumstances is valid.
The question of whether to rule in accordance with the Tashbetz or the Ra'anach is unresolved. The Aruch Hashulchan (E.H.4:106) rules in accordance with the Tashbetz, whereas Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 4:106) seems to rule in accordance with Ra'anach.13For an in-depth discussion of this issue, see Pitchei Teshuvah (E.H.134:11).
In the Israeli case under discussion, the husband was imprisoned for reasons that had nothing to do with the get. Securing his release by giving a get is certainly not coercive according to the Ra'anach. According to the Tashbetz, however, this should depend upon whether Halachah permits imprisoning someone for theft and drug charges. Nonetheless, Rav Dichovsky claims that even the Tashbetz would permit denying parole to this husband. He explains that even the Tashbetz only prohibits threatening to now punish the husband for another charge if he does not give a get. On the other hand, if the husband was already punished for the other charge without any connection to the get, Rav Dichovsky claims that all opinions would permit denying him parole.
Rav Dichovsky's Ruling
Rav Dichovsky rules that the beit din can recommend to the parole board to deny the husband parole due to two considerations. First, the beit din is not in the position to imprison the husband. It is merely recommending the withholding of a favor, parole, from the husband. The Maharik (Teshuvot 133) rules (citing Rabbeinu Tam) that withholding a favor does not constitute coercion.
Furthermore, the Chelkat Yoav (Dinei Oness, section five) rules that if one is in a yotzi situation, where the rabbis require him to give a get, his complete free will is not required for the get to be valid. Even if the husband only has free will according to a minimal definition, the get is acceptable, for he must give it.
Thus, since in this case the husband was obligated to give a get, it is acceptable for him to give a get even if he does so because of pressure to secure his early release from prison.
There is one potential problem with Rav Dichovsky's position. The Mabit (Teshuvot 2:138) does not even permit putting indirect pressure on a husband if the pressure is so great that he has no choice but to give a get.14The Mabit does not permit using indirect coercion to give a get even if the coercive factor is halachically legitimate. Accordingly, perhaps a jail sentence is so severe that it essentially leaves the husband no choice but to give a get.15Rav Yitzchak Breitowitz (Between Civil and Religious Law, p. 82) points out that the Mabit's responsum does not apply to financial pressure in the United States. Although forcing a husband to pay an excessive sum seemingly leaves him no plausible option other than to give a get, Rav Breitowitz argues that the husband could always default on the money. One who defaults on a debt in America does not receive particularly harsh punishments, so the choice between giving a get or facing the penalties for defaulting on financial obligations is a legitimate choice. Nonetheless, Rav Dichovsky did not concern himself with this responsum of the Mabit, because the Mabit seemingly contradicts himself elsewhere (1:22). In that responsum, he rules that a man who was imprisoned for being a heretic may be denied release from prison until he gives a get. The Simchat Kohein (vol. 3, E.H. 9) suggests a resolution to the contradiction. He claims that even the Mabit permits pressuring the husband with other punishments if the dayanim sincerely desire to punish the husband for his other offenses. The Mabit's strict ruling only relates to situations where the dayanim pursue the unrelated charges in a veiled attempt to obtain a get. Since Rav Dichovsky and his colleagues sincerely wished to punish the husband for cursing and spitting at them, they were not merely orchestrating his punishment as a ploy to obtain a get.
Objections to Rav Dichovsky
The other two rabbis who heard the case with Rav Dichovsky rejected his approach (Piskei Din Rabbaniyim 11:300- 308). They explained that in the aforementioned responsa, the prison authorities were indifferent to the performance of a get. Accordingly, even if a beit din would work to free the husband in return for giving a get, the prison authorities themselves made no such linkage. The prison authorities never stated that they would release the man for giving a get. In Israel, however, the government officials will notify the husband that his early release is in return for giving a get.
Conclusion
Harchakot d'Rabbeinu Tam and the 1983 New York State Get Law are effective means to motivate recalcitrant husbands to give a get. However, as long as the 1992 law is mired in controversy, it cannot be used as an effective tool against recalcitrant spouses. A beit din cannot supervise a get whose halachic acceptability is in doubt. Nonetheless, many individuals have pointed out to this author that virtually all rabbinical courts administer gittin on behalf of New York State residents when there is no indication that the husband is motivated to give the get by the 1992 law.16For further discussion of this point, see Between Civil and Religious Law, pp. 213-214 note 633. The rulings of the Netziv (Teshuvot Meishiv Davar 4:46), Rav Yitzchak Elchanan Spektor (Teshuvot Be'er Yitzchak, E.H. 10:8), and the Chazon Ish (E.H. 99:2), are often cited in defense of this practice. See, however, Bintivot Hahalachah 1:38-54. In Israel, batei din enjoy legal powers that sometimes enable them to put greater pressure on a recalcitrant husband, although batei din must judge each case independently.