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The New York Get Law: An Exchange
Michael J. Broyde

The New York Get Law: An Exchange

Michael J. Broyde

Rabbi Broyde teaches Jewish law at Emory University School of Law in Atlanta.

Rabbi Malinowitz's comments advance a number of theses that can be divided in two categories. The first are those that address fundamental issues relating to the process of Jewish divorce in America and the crucial general issues related to coerced divorces and the Get process. The second are technical comments on the sources that I cited in the course of my discussion of whether the Get Law voids Jewish divorces written in its shadow even be-di-aved. Since the first set of issues are much more fundamental to this problem, and how one understands them generally colors all other issues, I will respond to them initially. The questions concerning whether the sources support my analysis will be addressed afterwards.

* * *

Rabbi Malinowitz advances two fundamental theses that need to be understood, as they have profound implications for how one views the background that creates the many aguna problems and the scope of halakhically legitimate solutions. Rabbi Malinowitz writes: A secular, contested civil divorce requires a court verdict; surely a contested Get deserves no less, and in a halakhic forum. and he also states:

Without th[e] halakhic process, no one is justified in assuming that a Get is obligatory or even appropriate.... The [Get] law helps women obtain a Get when there has been no finding whatsoever by any halakhic body that a Get is either warranted or appropriate.

Elsewhere he states:

Action taken by anyone to facilitate a Get for a man/woman if the Get is halachically unjustified, even if that action does not halakhically invalidate the Get, is anti-halachic.1

In Rabbi Malinowitz's opinion, in a situation where there are no halakhic grounds for bet din to order (or rule a mitsvah) a divorce, there can be no aguna problem, since there is no halakhic "right" for the woman to be divorced and receive a Get, and thus there is no "wrong" for the husband to seek enrichment from his wife as a price for writing a Get. Rabbi Malinowitz thus maintains that any pressure on the husband to write a Get is unethical and wrong in such circumstances.

I believe that Rabbi Malinowitz's basic approach is mistaken and is inconsistent with normative halakha on this topic. The sources quoted in my original article showed that at some basic level, it is obvious that an honorable person would and should seek a divorce when the marriage really is over, and halakha sees no problems in licit coercion or persuasion designed to encourage this.

Based on these and many other sources, a proper halakhic posture should be that once the marriage is functionally over, and neither party wishes to remain married to the other, the role of a bet din (and everyone else) should be to settle the financial disputes between the parties, and to facilitate and encourage the writing of a Get. Encouraging the writing of a Get in such a circumstance is certainly not "anti-halakhic," as Rabbi Malinowitz states, but is rather a mitsvah, as Rav Henkin writes. It is in this spirit that the many prenuptial agreements (which do not require a finding of fault to require that a Get be given) have been suggested, and have received approbation or been formulated by such eminent contemporary poskim as Rabbis Bleich, Feinstein, Goldberg, Leibes, Yosef, Willig, Zimbalist and others.

While halakha restricts the type of pressure that can be put on the husband in a variety of ways to insure that the requisite free will required by the husband for a valid Get be present, encouraging and pressuring a Jewish divorce in cases where the marriage is dead and the couple permanently separated is completely proper and appropriate even when there are no halakhic grounds for a Get to be mandatory or a mitsvah. Were the contrary to be the normative halakhic rule, even the 1980 Get Law--which received unanimous approbation in the Torah community --would be problematic, as its purpose clearly is to encourage the giving of a Get in a situation where there is no ruling from a bet din that a Get is to be encouraged.

Thus, once one understands Rabbi Malinowitz's basic approach to this issue, one senses that many of his criticisms of my article, and his broad criticism of the 1992 New York Get Law, reflect his approach that every form of pressure is suspect and to be discouraged. The proper response to Rabbi Malinowitz's comments are obvious once one accepts that there is no halakhic problem in encouraging--or even coercing in manners permitted by halakha--a Get when the marriage is over.

Rabbi Malinowitz indicates that it is intellectually dishonest of me to quote Rav Moshe Feinstein's approa, which permits any and all force to be used to encourage the writing of the Get without any halakhic problem once the marriage is de facto over, without my noting in the text that Rav Feinstein had reservations about it. (I noted such in a footnote.) I will leave that allegation of intellectual dishonesty to the reader's judgment, as defending one's own virtue is very hard.

However, it is extremely significant to note that Rav Feinstein's approach to the aguna situation is fundamentally rejected by Rabbi Malinowitz, who does not agree that there always is a halakhic duty to provide a Get when the marriage is actually over. His position is one Rav Feinstein and Rav Henkin explicitly reject. Surely, one who disagrees with the normative halakhic approach advocated by these two deans of Torah life in America should have noted that fact.

In his responsum, Rav Feinstein (Iggerot Moshe EH 3:44) advanced two very important insights. The first is that in a situation where the marriage is actually over, there is no halakhic problem with using what would otherwise be illicit coercion to compel the giving of a Get, even if no money is paid at all to the husband. The second is that in a case where payment is made by the wife to settle this matter and that payment is combined with some coercion placed on the husband--but the marriage really is, in fact, over--that coercion does not violate halakha and void the Get. Halakha accepts that the husband is issuing the Get in return for the payment of money, since the marriage really is over and he derives no real benefit from continuing the marriage.

The first insight, while by no means unique to Rav Feinstein, is found in only a small number of authorities.2 However, the second insight is found in a large number of halakhic authorities of the last thousand years, and is completely normative.3 Indeed, no less an authority than the Bet Shemuel (EH 134:14) notes that there are many many circumstances where one can rely on this approach, even when only a small amount of money is given by the woman.

Many other authorities could be cited to support this halakhic rule, and it appears to be accepted le-ha-tehila by many. Rav Tzvi Gartner, in a forthcoming sefer dealing with many aspects of coerced divorce, summarizes the halakha by stating:

It appears that it is difficult to rely on the approach of Iggrot Moshe and Tiferet Tzvi in a case where the only benefit which accrues to the husband is removal of the obligation to support his wife, since this is a matter in dispute between Tosaphot and Rashba. Nonetheless, their analysis is persuasive at the minimum in the case where the husband does not desire a marital relationship, and only desires to extract something from the woman in exchange for a Get, and she gives him money for the divorce.4

Indeed, a plausible reading of Rav Feinstein's own words incline one to accept that he only was hesitant to rely on his "novel insight" for the first of them--when there was no payment to the husband. The second insight is certainly accepted by many great posekim as normative halakha, and validates any Get given in the process of a settlement where the wife gives anything of value to the husband that he is not entitled to. Nearly all contested secular divorces fit into this category.

The second significant issue about which Rabbi Malinowitz and I disagree is the intent of the parties to accept secular law as the basis for resolving marital disputes. Rabbi Malinowitz believes that: "[The 1992 Get Law] provides for support [alimony] even post divorce, which generally constitutes halakhic theft, out and out"; and "few couples would declare, either before or during their marriage, that they wish to be governed by the laws of the State of New York in marital division of property in the event of divorce."

The scope of the halakhic duty to follow the law of the land, or the ability of the Jewish community to incorporate the law of the land into Jewish financial dealings through common commercial custom (minhag ha-soherim), remains one of the fundamental issues in the whole discussion of the Get Law. I believe that the custom of the Orthodox Jewish community--or vast portions of it--is to accept as part of our customary financial law the concept of alimony, post-divorce payments, and very likely equitable distribution.

Indeed, for the last number of years, at every wedding where I am invited to sit at the groom's table (hatan's tisch) while the ketuba is signed, I ask the husband whether, if the marriage were to end by divorce, does he expect to pay his wife the value of the ketuba and return to her the assets that she brought to the marriage, or does the couple expect some other form of asset division in cases of divorce?

I am almost always told by the husband and wife that they do not intend for the ketuba to control the division of assets. That really is the intent of many couples. This fact is reflected in the American custom of not negotiating the dollar amounts in the ketuba, either in terms of how much money the woman actually brings into the marriage or how much the husband shall pay her upon divorce or his death, as is done in Israel, or was the custom in Europe centuries ago. Indeed, the standard ketuba used in Israel leaves these amounts blank, to be filled in for each couple, and the standard American ketuba fills in the amount of "200 silver coins," an amount worth considerably less than $10,000. The simple fact is that our community has accepted some sort of equitable distribution and alimony as the minhag ha-makom to determine the financial rights of each party in a divorce. Indeed, a number of halakhic authorities seem amenable to this practice,5 and many divorces have occurred in the Orthodox community where alimony has been paid without the rabbinic community ruling such payment to be theft.

If one is not prepared to accept this understanding of our minhag in the Orthodox community, what, then, provides the basis for the common practice of not enforcing the financial provisions of the ketuba, which in the many divorces I have been involved in, I have never seen done? Rather, it is common commercial custom (minhag ha-soherim) or secular law (dina de-malkhuta) that provides the relevant rules.6 This reality is obvious even to people far removed from America. As Rav Avigdor Nevetzal, Rabbi of the Jewish Quarter in Jerusalem, states, " many activities that are dependent on the state of mind of a person, their state of mind follows the secular law and not the Torah law.7

It is important to understand that this rationale, standing alone, validates Jewish divorces given in light of the 1992 Get Law, as it changes the nature of the penalty imposed by the Get Law into either a self imposed one (valid only be-di-avad, see Part II:13) or a denial of benefit to induce the writing of a Get, which is permitted le-ha-tehila. In fact, some have argued that 1992 Get Law is actually merely a maintenance and support law (even in asset division). This approach contends that the woman who will not receive a Get will need greater support payments, both in terms of alimony and a larger share of the marital assets for support, since she cannot remarry even after her civil divorce, and New York State recognizes that fact in its equitable distribution law--no penalty to give a Get is intended at all. Although Rav Elyashiv clearly disagrees, Rav Moshe Feinstein ( Iggerot Moshe EH 4:106) clearly states that when a man is ordered to pay higher support provisions until he writes a Get--even if the higher payments are completely without any basis in halakha--the resulting Get is not considered a compelled divorce, and is valid.8 However, many secular legal authorities argue that the asset division provision of the 1992 Get Law is in fact a penalty provision, and this approach is thus only half correct.

* * *

I will now provide a paragraph-by-paragraph response to Rabbi Malinowitz' specific criticisms.

  1. Rabbi Malinowitz's point that "a coerced Get is totally invalid mi-de-Oraita" is true in some literary simplistic way, but implies a falsehood. By not adding the a"illicit" before the word "coercion," as I did throughout my article, the reader might think that any form of inducement or coercion is prohibited according to Jewish law. Such is quite false. The Pithei Teshuva on Even HaEzer 134, and many other commentators, both before and after, devised many perfectly legal forms of coercion to encourage the giving of a Get. Included in this is social ostracization, dismissal from one's job, denouncement, withholding of benefits, and many other actions. Even in circumstances where no there is no halakhic reason to give a Get, such coercion or persuasion is still permitted. I added the word "ideally" to reflect the fact that "in the ideal," even halakhically permitted forms of coercion would be unneeded.

  2. The themes of Rabbi Malinowitz's observations in this paragraph are responded to in the first part of this exchange.

  3. Rabbi Malinowitz attributes to me the idea that if "illicit coercion is present, bet din will realize that it is present and decline to write the Get." This is a misreading of my article. I am simply noting that this is what others claim. Indeed, it is obvious that when a bet din thinks that any particular Get is coerced, it should not write that Get. However, there are many situations where no coercion is present at all, and a Get should be written. An examination of the sources I cite indicate that such actually is what those writing in defense of the Get Law claim.

  4. Rabbi Malinowitz's linguistic comments about the lack of clarity in the way I explain the approach of Rav Shlomo Zalman Auerbach are correct, and I regret that there was some ambiguity in my phraseology. Clarity in this area is vital. It is also quite clear, however, that Rav Auerbach has never stated that "the Get bill creates economic coercion which would invalidate any Get written as a result of said bill," as Rabbi Malinowitz claims. Indeed, even Rav Elyashiv only stated that there was a possibility that some of the gitten given might be coerced,9 a position that is certainly true--but the question is, are one in a hundred gitten questionable, one in a thousand gitten questionable, or some other percentage.

  5. Rabbi Malinowitz's opening analysis of Rav Feinstein in this paragraph is discussed above. His second point, limiting Rav Feinstein's logic, is equally specious, as he implies that in fact, there are many cases where--at the time of the writing of the Get--the husband actually wishes to return to living with his wife in a family relationship, and is coerced into divorce when in fact a marital relationship is desired. I have participated in nearly 100 gittin, and I have yet to encounter a case where--at the time of the writing of the Get--the husband genuinely desired to remain married to his wife. The rationale of Hazon Ish (EH 99:2)--that when there is a genuine desire to issue a Get, there is not a problem of coercion, even when it is present--is the absolute norm in modern American divorces, although (of course) it is not correct in all cases.

    Rabbi Malinowitz's questioning of who should make this determination is simply answered: before one asserts that a validly written Get, given by recognized me-sader which comes with a strong presumption of validity, is not valid, one should investigate to determine what the facts were. The burden should be on those who question the petur of a recognized bet din, which attests to the validity of the Get. As Rav Feinstein (Iggerot Moshe EH 1:137) states, "we should not contemplate the invalidity of a Get arranged by a rabbi appointed for this process and claim that perhaps a Get was written in violation of halakha."

  6. Rabbi Malinowitz's caveats concerning Rav Herzog's approach (which is also found in the writings of Rav Hadia, Yaskel Avdi 6:96) are worth noting. However, in the collection of approaches that would rule a Get given under complex circumstances valid, and the children of the second marriage not mamzerim, Rav Herzog's approach is worthy of mention and consideration, and is even more valid in a case where there has been an order of a bet din.10

  7. Rabbi Malinowitz's observations concerning dina de-malkhuta are discussed in above. However, one additional fact should be noted. While Rabbi Malinowitz states that "secular law does not rule that equitable distribution assets belong individually to neither party in the marriage," he is clearly mistaken. The theory of equitable distribution is very simple. Unlike the classical common law, which ruled that whomever title resided in, kept the item on divorce, modern American equitable distribution law recognizes that marital property is held in the marital estate, which is like a trusteeship, and upon divorce, the court divides the property according to the statutory direction. (In communal property states, the division is always even.) One recent hornbook stated, "In all states today, statutes provide that upon divorce the property of the spouses shall, in one way or another, be divided between them, regardless of the state of the title."11

    An article devoted exclusively to New York family law notes:

    Contrary to the title theory of property, equitable distribution is based upon the premise that marriage should be viewed as a form of economic partnership. This concept reflects the modern awareness that marriage is a union dependent upon a wide range of non-remunerated services to the partnership, such as homemaking, raising children and providing emotional and moral support necessary to sustain the other spouse.12

    This theory is equally valid in secular law for both maintenance payments and marital asset division, Rabbi Malinowitz's comments about secular law notwithstanding.

    Rabbi Malinowitz's final assertion on this topic, that any situation where the secular law recognizes that the parties "are free to reach any agreement they want" precludes an application of dina de-malkhuta, misunderstands the relevant issue here. The question is, "does the husband own the assets according to secular law?" and the answer is that assets in the marital estate are owned by neither party, and can only be distributed by mutual consent or judicial declaration. This type of ownership can certainly be accepted by halakha and is even more legitimate under a theory of common commercial practice (minhag ha-soherim) as it is under dina de-malkhuta.

  8. Rabbi Malinowitz's observations concerning the reasonableness of the penalty imposed by the Get Law are not borne out by conversations with practicing lawyers or judges. I have spoken to a number of practitioners in New York State specializing in Jewish divorce law, and they confirm that the penalties imposed typically are very small. I have been told that it is rare for a penalty ordered under the 1992 Get Law to increase the total monthly payments by more than 3%, or shift the distribution of assets by more than 5%.

    While 5% of one's assets can be a significant amount of money, Responsa Bet Efrayyim (Tenyana EH 70) notes that in order to determine whether any particular Get is void because of financial coercion, the bet din has to investigate whether the amount forfeited is sufficiently great to compel this particular person to divorce and if it is an amount of money that is sufficiently small that most people would not divorce their wife to avoid this loss, it is obvious that even if this person asserts that he is of those who are weak of mind, and a lover of money and thus they feel compelled to divorce his wife to save the expense, we do not listen to such a person.

    A similar approach can be found in Iggerot Moshe EH 1:137. One is not believed merely when one asserts financial coercion and only a small amount of money is involved. The same should logically be true for a small percentage of the marital estate, even if it is a large amount of money.

    This is even more so if one accepts the approach of those authorities cited in the end of Part 1:C who rule that government ordered support payments (even when lacking any basis in halakha) can never create a situation where the Get awarded to avoid paying them is invalid. According to this approac, one would have to determine how much of the court-ordered payments to the wife under the 1992 Get Law are support payments, and how much are penalty payments, and then one must evaluate whether the amount of the penalty alone--independent of the support component--is large enough to be a coercive amount.

  9. I agree with Rabbi Malinowitz's assertion that the Get Law has no requirement for one to first appear in front of a bet din. As the initial article states clearly, in cases where one party does go in front of a bet din, the Get Law provides a formidable weapon to encourage compliance with the orders of the bet din. No more is claimed.13

  10. Rabbi Malinowitz is correct that the opinions I cited that financial duress does not rise to the level of creating coercion--fifth in a list of seven--are not normative to halakha, and I note explicitly that they should only be used as one side of a multi-sided sefek sefeika, as numerous aharonim have done.

  11. In the same vein, Rabbi Malinowitz indicates that my reading of Gra (as supporting the concept that economic duress does not create coercion) is incorrect. While it is true that this understanding of Gra would put Gra in tension with most rishonim and aharonim, such a reading of Gra is not unique to me (See Rav Ovadia Yosef's comments in Yabia Omer, Even haEzer 7:23 and 8:25). While Gra in Hoshen Mishpat 205:18 is ambiguous on this issue, as Rabbi Malinowitz notes, Gra in Biur haGra Even haEzer 154:67, that I cite, states:

    Since he can flee to another city and any situation where they do not do violence to his body is not called force.

    Either way, of course, it is clear that this approach is a minority opinion that should only be used in combination with other rationales.

  12. Rabbi Malinowitz's factual assertion that divorce, when initiated by the woman, is not normally grounded in some halakhically cognizable claim, can be questioned, and I will leave it to the reader to judge the correctness of this assertion. More significantly, in a case where the woman's claim of repugnancy toward her husband is based on reasonable and provable grounds (amatla mevu'eret), many authorities accept Rambam's rule that coercion is permissible as correct either le-ha-tehila or be-di-avad. (See the many sources cited in Rav Ovadia Yosef, Yabia Omer, Even haEzer 3:18).

  13. I respond to Rabbi Malinowitz's initial assertion above. His assertion that even a "pre-agreed upon penalty" constitutes coercion according to halakha "if the husband changes his mind and declares that he does not want to give the Get (see Even HaEzer #134)" is the type of vast simplification of halakha that one should hesitate to accept. Rama (Even HaEzer 134:5), after citing the various opinions, rules that "it is better le-ha-tchila to be fearful of the strict opinions, and to nullify the penalty, but if they are already divorced because of this [the Get is valid]." While it is true that Mishkenot Ya'akov (38) is strict on this matter, and argues with Rama, a clear consensus agrees with Rama in this regard, at least be-di-avad. Certainly in a case where the husband does not categorically state at the time of the seder haGet that he is being coerced, which is a very rare circumstance, the Get is valid (Levush 134 and Hazon Ish EH 99:5, but see Arukh HaShulhan EH 134:26-29). (Were the husband to state that he is being coerced, without a doubt the bet din would not write the Get, although many posekim would permit such a Get to be written.)

  14. Rabbi Malinowitz's understanding of Rav Spector's rule is perplexing to me. Even Rav Elyashiv's teshuva addressing the Get Law concedes that the Get Law would not lead to a void Get under the approach of Rav Spector. What Rav Spector asserts is that secular coercion used outside the bet din does not create a void Get when the husband states that he is not being coerced. Such is exactly the case of the Get Law, and I fail to understand the distinction pressed by Rabbi Malinowitz.14

  15. Rabbi Malinowitz's claim that most women who file for divorce are halakhically classified as moredot and thus not entitled to any support at all, can readily be questioned. One can well imagine many cases where the woman files for divorce but it is the husband who abandons the wife; indeed, in most cases that I have been involved in, it is the husband who moves from the abode and ceases providing support, and not the reverse. In those circumstances, the wife is not typically a moredet (rebellious wife) (see EH 77), although she would be well advised to seek permission from a bet din before filing a request for support in secular court lest she violate the prohibition of litigating in secular court.15

    Even in the case of woman who is a moredet, a very strong case can be made that a husband has no right to both decline to support her and decline to divorce her. As Rav Eliezer Waldenberg notes:

    [When a woman is a moredet], she forfeits her ketuba rights and other financial claims against the husband. However, on the other side, the husband must [hayyav] divorce her and may not keep her connected to him.16

    Rav Waldenberg states that the pesak of the Israeli Rabbinical Courts, which he agrees with, is to require support payments to be paid even to a moredet who is an adulteress when a reasonable time has elapsed and the husband has not ended the marriage by writing a Get. Indeed, in the case of a moredet, no less an authority than the Pithei Teshuva (EH 154:4&7) notes that the accepted practice is to make the husband support his wife (until he gives her a Get) specifically to encourage the husband to give a Get and not to compel a woman to remain in a "dead marriage"-- even if the marriage "died" because of her misconduct. Similar sentiments can be found in the name of many posekim, including such luminaries as Noda BiYhuda, Rav Akiva Eiger, Hatam Sofer, and Bet Meir, and is the normative halakhic posture, even if it is contrary to the assertion of Tosafot.17

    This well-accepted halakhic approach undercuts Rabbi Malinowitz's fundamental thesis in the area of moredet and the 1992 Get Law. In essence, there is an argument-in-the-alternative that validates the Get given to an alleged moredet who takes court-ordered support payments under the 1992 Get Law. If the husband claims that the woman is a moredet and the marriage is thus over, the husband should give a Get because of that, and support payments to encourage this are not without significant basis in halakha once the husband makes it clear that he is withholding a Get--the only time the 1992 Get Law would be applicable. (The analysis found in Part I:B is also applicable, which would validate the Get.) If the husband denies that the wife is a moredet, there certainly is no problem with ordering him to make support payments.

    It is important to add (as I noted in the original article) that in any case where the 1992 Get Law is applied in a manner where the woman clearly is entitled to financial support, and she receives financial support roughly the same as that to which she is entitled to according to halakha, there is no problem of illicit coercion in these payments, as the woman is entitled to the money. If the 1992 Get Law is understood as a maintenance and support provision (and not a penalty provision, see the end of Part I:C), then a Get issued to avoid payment of the maintenance would be valid according to at least some authorities, as Rabbi Feinstein (Iggerot Moshe EH 4:106) explicitly validates a Get issued to avoid payment of support-- even if such support provisions are contrary to the dictates of halakha.

  16. Rabbi Malinowitz's final point is bewildering to me. In many cases, even before the request for support is filed, the husband informs his lawyer that he will gladly give a Get of his own free will, and has no problem with a judicially imposed penalty clause should he decline to issue a Get, as he fully expects to write a Get. The judicial order in such a case reflects this fact, and a post-fact analysis by a rabbi that the resulting Get was coerced because the penalty clause was present is simply mistaken. This is not an unexpresintent contrary to one's actions (devarim she-ba-lev), but rather an obvious manifestation of the agreement between the parties that cannot be verified after the fact by a stranger to the negotiations.

* * *

Let me repeat the conclusions stated in my initial article. I believe the 1992 New York Get Law is a bad idea, as all coercive secular regulation to enforce Jewish law should only be sought to enforce Jewish law norms that are accepted by (nearly) all members of the halakhic community. The 1992 Get Law is not and thus should be opposed.18

However, not all bad ideas lead to gittin that are void [pasul be-di-avad]. While it is possible to create a case where all of the factors inclining one to leniency are missing and the resulting Get really can be properly questioned, I believe that most Jewish divorces issued in the shadow of the 1992 New York Get Law are, at the very least, minimally valid according to halakha. Most are completely problem-free. Rabbi Malinowitz is alone in claiming "that the 'Get bill' creates [rather than "might create"] economic coercion which would [rather than "may"] invalidate any Get [rather than "a small number of gittin"] written as a result of said bill." This is a very significant overstatement by Rabbi Malinowitz which goes to the very heart of the issue under discussion in this exchange.


My work on this article specifically, and on Jewish family law matters generally, has been supported the Judy and Michael Steinhardt Foundation, whose grant to the Law and Religion Program at Emory University School of Law led to the establishment of a Project on Jewish Family Law. I would also like to thank Rabbi Tzvi Gartner of Jerusalem, who graciously reviewed this article and shared an unpublished manuscript of his with me on this topic, and Rabbis Mordechai Willig, Yitzchak Breitowitz, and Howard Jachter, all of whom commented on drafts of this article.

  1. Rabbi Chaim Malinowitz, "The 1992 New York Get Law" 27 J. Halacha & Contemporary Society 5-26 (1994) at pages 10-11.
  2. See Tiferet Tsevi EH 102, Imrei Aish EH 57 and Or Same'ah on Rambam, Gerushin 2:20, VaYishal Sha'ul EH 2:20 and Or Zaru'ah, Teshuva 126.
  3. Included in the list of posekim who accept the rule that payment of money with some coercion, in a case where the marriage is over (and in the case of some of the posekim, even if it is not) and the husband does not desire to return to the marital abode, produces a valid Get--are Avnei Nezer EH 167, Hatan Sofer 59, Tashbets 1, Rabbeinu Yosef of Slutsk 79; Agudot Eizov EH 19(18); Kuntres Tikun Olam, Tikun 3, Teshuva 1:1, Rashbash 339 (argues with Rama EH 134:8); Rashbats 4:35 and Nahlat David 34, as well as perhaps Shut Oneg Yom Tov 168. Similar, but not identical analysis can be found in Hemdat Shelomo EH 80(3), Ne'ot Deshe 144, and is mentioned in Bi'ur Yitshak EH 10:1 and Birkhat Retsay 118. One can add to this list the above-mentioned posekim who accept an even broader rule (Iggerot Moshe EH 3:44; Tiferet Tsevi EH 102, Shut Orin Tletai 61; Or Same'ah, Gerushin 2:20, and others cited above).
  4. Rav Tzvi Gartner, in an unpublished manuscript on the laws of Get me'usa, at section 51, page 110.
  5. See R. Yehuda Leib Grauburt, Havalim baNe'imim, Even haEzer 55, which rules, in the alternative, that secular law provides a woman with financial rights against her husband (or his estate); R. Joseph Trani, Mabit 1:309, is yet another such responsum. For a similar type of claim, see R. Yitshak Isaac Liebes, Bet Avi 4:169. Similar reasoning can be implied from R. Moshe Feinstein's ruling (Iggerot Moshe, Even haEzer 1:137) that the wife's waiver of past-due support payments mandated by secular law in return for the husband's issuing a Get is a form of permissible coercion which does not invalidate the Get (create a Get me'usa situation). This waiver of a financial claim is valid coercion only in a case where the woman's claim to the money is halakhically valid, as the wife is entitled to these payments through dina de-malkhuta. Indeed, Rav Feinstein implies that this is the more likely result in his analysis in Iggerot Moshe EH 1:137; See also Pithei Teshuva EH 134:9-10.
  6. It is important to note, however, that the practice of resolving these disputes in secular court remains a clear violation of halakha, which requires that these types of disputes be resolved in bet din. See Hoshen Mishpat 26:2. However, the fact that these disputes should be resolved in bet din does not in any way mean that bet din cannot accept the common commercial custom of using secular law as the basis to resolve this dispute. Indeed, Rav Mordechai Willig's prenuptial agreement explicitly lists that possibility as one of its options.
  7. Letter of Approbation to R. Neharia Moshe Gotel, Heshtanut haTva'im beHalakha (5755), page 15.
  8. See Irving Breitowitz, Between Civil and Religious Law: The Plight of the Agunah in Modern Society, pages 228-229. One can add that there certainly were posekim who ruled that even property illicitly taken from the husband may be used as leverage to induce the writing of a Get in situations where the property was not taken for the purpose of later being used to induce the issuing of a Get. As noted by Professor Irving Breitowitz in his extraordinary book, at notes 637 and pages 214-217, many aharonim accepted this rationale. This would validate the use of equitable distribution penalties even according to those who rule that the wife has no claim on the jointly held assets. This rationale is particularly proper if the 1992 Get Law is merely a support bill, and not a penalty law.
  9. See the teshuvot of Rav Shalom Yosef Elyashiv, Rav Shlomo Zalman Auerbach and others found in the Iyyar 5753 issue of Moria.
  10. After this response was written, Rabbi Tzvi Gartner directed me to his review of Rabbis Herzog and Hadia's insights (in section 81 of his unpublished manuscript) which contains a detailed argument demonstrating the difficulties of their approach. Nonetheless, as one side of a multi-faceted sefek sefaka, this approach is worthy of citation.
  11. Clark and Glowinsky, Domestic Relations, 5th ed. page 809.
  12. Kaufman, The New York Equitable Distribution Statute, 53 Brook. L. Rev. 845 (1987).
  13. Rabbi Malinowitz's comments about the need for explicit agency from a secular court to a bet din are ably responded to by Rav Tzvi Gartner in an unpublished manuscript dealing with a number of issues related to coerced divorces (in section 14 of that work), and in his article in Moria, Iyyar 5753. (This seems to be a dispute between Rav Elyashiv and Rav Auerbach, in that same issue).
  14. See also Rav Gartner's unpublished manuscript on this topic, sections 41 and 42, where he indicates that Rav Spector can be understood in a way that eliminates these various problems.
  15. If my argument is correct, and in fact, the common custom in our community is to determine separation agreements based on secular law, a strong claim could be made that the custom is to pay support even in a situation where the woman might be halakhically be classified as a moredet, so long as secular law and custom is to provide support. This approach would validate the Get Law, even if the woman is a moredet. (My thanks to Professor Breitowitz, who first pointed this out.)
  16. Tsits Eliezer 18:58. This pesak can also be found in Piskai Din Rabaniyyim 1:238 and 9:171 as the pesak of the Rabbinical Courts of Israel and is defended by Rav Herzog and others in the appendix to volume two of Otsar haPosekim. Particularly the analysis found in 9:171 supports the contention that the moredet issue is not significant, as a Get should be given even to a moredet.
  17. Tosafot, Zevahim 2b, s.v. stam. The approach of Tosafot is rejected, or limited to a case where the woman does not want to be divorced, by a number of authorities, including Noda biYhuda, Tinyana EH 12, Rav Akiva Eiger, Derush veHiddush, teshuva at the end of the ketavim section, Hatam Sofer, Nedarim 89a s.v. ba-rishona, Bet Meir EH 117, Pithei Teshuva 154 (4&7), and is implied by Arukh haShulhan EH 178:25-26. See the short article by Rav Ya'akov Moshe Tolidano in the appendix to Otsar haPosekim (2:16), who asserts that the approach which requires a husband to support his wife who is a moredet, and thus not technically entitled to support, in order to encourage the writing of a Get by the husband, is the normative halakha without a doubt.
  18. The case of the 1992 Get Law is uniquely problematic because the organization which generally checks pending bills for consistency with the halakhic norms of the community that the Bet Din leHora'a is part of did not voice any problem with this bill until after it was passed.

Reprinted with the permission of Tradition Magazine. All rights reserved.

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