IV. BEIT DIN DIVORCE PROCEDURES
Note: For procedures associated with the transfer of a Get, see II:3. 1.WHAT INITIAL PROCEDURES ARE ENCOUNTERED WHEN ONE GOES TO A BEIT DIN FOR A GET? - One of the parties seeking a divorce must call the beit din and schedule an appointment to initiate the proceeding. Either the husband or wife may initiate this contact.
- Commonly, following the initial interview with a party, the beit din issues a hazmanah to the other party to appear before that beit din. At this point the other party may indicate that he/she does not agree with the initiating party's choice of beit din and may offer a choice of other batei din. If the parties cannot agree on an existing beit din, a zabla beit din may have to be formed.
- The beit din may need to issue up to three hazmanot (see Beit Din Comparison Grid Section for schedule of issuance), and if the summoned party does not appear, the beit din may issue a seruv. (See IV:2 and 3.) A seruv is a document indicating that the person who did not respond to the hazmanah, is not cooperating with the beit din, and is therefore a recalcitrant party who is in contempt of court. Either husband or wife can be held in contempt of court. (See III:8, as to whether a litigant submits to the jurisdiction of the beit din issuing the summons by appearing in response to the summons.)
- The issuance of a seruv is a serious matter that can trigger community sanctions against any person who is ?mesarev?. Some batei din will not issue a seruv because of the severity of the measure. (See Beit Din Comparison Grid Section.) However, these batei din may be willing to issue a letter to community rabbis indicating that synagogue honors should be withheld from the husband because he has failed to cooperate with the beit din. According to halakhah, the sanction of withholding honors from an uncooperative husband does not require a seruv, however other sanctions, such as picketing the husband's home or workplace, are considered to be substantively different, and do require a seruv issued by a beit din.
2. ONCE A SERUV IS ISSUED, DO COMMUNITY SANCTIONS AUTOMATICALLY FOLLOW?
No. In most cases it is the responsibility of the cooperating party to ensure that sanctions are enforced against the mesarev. He/she must obtain a copy of the seruv from the beit din and provide it to the rabbi of the mesarev and others who would be willing and able to implement community sanctions against the mesarev. 3. WHAT COMMUNITY SANCTIONS CAN BE APPLIED AGAINST A PERSON AGAINST WHOM A SERUV HAS BEEN ISSUED?
Once a seruv has been issued, the mesarev's home may be picketed and/or that person's workplace may be picketed. If the husband is mesarev, his congregation may be asked to deny him the honor of being called up to the Torah (however, as indicated previously, this particular sanction can be applied even without a formal seruv). If the mesarev's business needs a hechsher, the hechsher may be refused or withdrawn after a seruv is issued. All requests for sanctions must be initiated by the aggrieved party or someone acting on his/her behalf. The beit din and/or local rabbi are unlikely to initiate sanctions unless asked to do so by the injured party. The sanctions are sometimes applied by individuals and sometimes applied by the community leaders, institutions or organizations. For example, the Jewish Press, a weekly New York-based publication, will list individuals who are mesarev Get. Another list of mesarvei Get may be found at www.getora.org. 4. WHAT IS A TO'EN (masc.), TO'ENET (fem.)?
Toanim (pl.) are advocates who act as attorneys for people appearing before a beit din. Presently, Toanot (women) may only appear in batei din in Israel and only after they have completed a rigorous course of training. In the United States, there is no uniform training curriculum for toanim, nor are toanim accredited by any communal institutions. As there is no requisite level of knowledge that toanim must evidence, and there are no ethical guidelines that govern their conduct, some batei din will not allow toanim to advocate in the beit din. (See Comments and Cautions Section.) 5. DO HUSBANDS AND WIVES CONFRONT ONE ANOTHER DIRECTLY WHEN APPEARING BEFORE A BEIT DIN?
No. Both husbands and wives are present in the same room, but they do not speak to one another directly. During the proceedings, each party speaks directly to the dayyanim and the dayyanim pose questions or relay comments to the other party. 6. SHOULD A WOMAN GO TO A BEIT DIN ALONE?
We do not recommend that a woman appear before the beit din by herself. Appearing before the beit din can be an emotional experience and the litigant may need support. We suggest that a woman ask a female friend and/or a trusted relative to accompany her. If the person accompanying a woman has knowledge of halakhah, that may be helpful, however, each beit din differs with respect to whether a non-party will be permitted to attend and/or speak during the proceeding. 7. CAN A WOMAN'S ATTORNEY ACCOMPANY HER AND SPEAK ON HER BEHALF BEFORE A BEIT DIN?
Batei din differ on whether attorneys may be present during the proceeding and to what extent they may participate. Ask the beit din you are considering using to what extent, if any, your attorney may be involved. (See Beit Din Comparison Grid Section.) 8. WHAT KIND OF MONETARY SETTLEMENT MAY A WOMAN BE ENTITLED TO IN A BEIT DIN?
Each beit din has its own method of division of marital assets. (See Beit Din Comparison Grid Section.) A beit din does not have to award spousal support. A beit din may award a woman the worth of her ketubbah solely or it may ask a woman to waive her claim to the ketubbah money. On the other hand, some batei din may order a year or more of spousal support, sometimes as an interpretation of the worth of the ketubbah. (See V:2.) 9. IF A LITIGANT FEELS HE/SHE HAS BEEN TREATED UNFAIRLY BY A BEIT DIN, IS THERE ANY TYPE OF APPELLATE PROCESS?
One of the flaws of the beit din system currently is that there is no clear-cut formal appellate process and no specific entity that is empowered to address complaints. If the beit din has a parent organization, a complaint may be lodged in writing and sent by certified mail, return receipt requested, to that organization. It should clearly outline the complaint and ask for an investigation and a report to the complainant. Additionally, in some batei din, if the av beit din was not one of the dayyanim who ruled on the original case there may be recourse to the av beit din. V. DOCUMENTS FOUND IN JEWISH DIVORCE PROCEEDINGS
Note: Many documents involved in Jewish divorce proceedings, such as Get and Ptur, are discussed elsewhere. 1. WHAT TYPE OF PRE-NUPTIAL AGREEMENTS MAY BE USED TO ADDRESS ISSUES WITHIN A JEWISH MARRIAGE?
A bride and groom may sign a pre-nuptial agreement prior to marriage creating financial incentives for a man to give a Get in a timely manner in the event of the dissolution of the marriage. This agreement may also be signed after a couple is married, in which case it is considered a post-nuptial agreement. Pre and post-nuptial agreements are equally valid and enforceable. Increasingly, Jewish pre-nuptial agreements are signed by the bride and groom prior to the wedding ceremony. (See Comments and Cautions Section about timing of the signing of such agreements.) The pre-nuptial agreement compels a husband to provide financial support to his wife if he withholds a Get once a Jewish divorce has been initiated. As a result, the pre-nuptial agreient--though not foolproof--reduces the incentive a husband otherwise may have to refuse to give a Get in a timely manner. Pre-nuptial agreements can differ. The pre-nuptial agreement of the Beth Din of America is a commonly accepted option. It can be obtained by calling 212-807-9042 or downloaded from www.ocweb.org.
In the United States, state laws may differ as to what must be included in a pre-nuptial agreement for it to be valid and enforceable. These rules may be fairly complex and therefore any pre-nuptial agreement should be obtained ahead of time and discussed with your attorney as well as your rabbi before it is signed. 2. WHAT IS A KETUBBAH?
A ketubbah is a document that was created by the rabbis for the purpose of protecting women in the context of marriage. The ketubbah is signed by the groom and given to the bride during the wedding ceremony. According to the terms of this contract, the husband commits himself to support, feed, and satisfy his wife sexually for the duration of their marriage and to give her a certain sum of money in the event of a divorce. The sum of money outlined in the ketubbah is described in zuzim, an ancient coin. Batei din take different approaches in their calculation of the amount of money owed in the event of a divorce according to the terms of the ketubbah. Some batei din will award a woman a finite amount in local currency (i.e., $5,000) and other batei din will interpret the ketubbah to require the husband to pay spousal support for a given period. Batei din differ as to the duration of the spousal support that will be awarded, and the standards they will apply in determining the amount of support owed. (See Beit Din Comparison Grid Section for examples of different approaches taken by batei din.) In the event of a divorce, some batei din may ask a woman to forego her ketubbah money for various reasons. Unfortunately, some batei din may fail to ensure that the woman receives adequate financial support once she has waived her claim to her ketubbah money. Unless a woman has signed a shtar berurin she should be encouraged to file a petition in civil court for spousal and/or child support. Some batei din may view a litigant's decision to seek the aid of the civil court in an unfavorable light, and it has come to our attention that some communities may penalize and/or ostracize parties who seek the aid of civil court rather than rely on the rulings of the beit din. 3. WHAT IS A SHTAR BERURIN?
A shtar berurin is a document that grants the beit din exclusive authority to arbitrate and determine issues including division of marital assets, support, and custody of children. Civil courts may accept this as a BINDING ARBITRATION agreement. This may vary in different courts and in different states. Each party to a divorce has the right to refuse to sign the shtar berurin, however, some batei din require that a shtar berurin be signed before agreeing to adjudicate the matter. One should consult an attorney before signing the agreement. (See Comments and Cautions Section.) Once a shtar berurin has been signed by the parties, and the beit din has arbitrated the matter and reached a determination, it will be very difficult to enlist the aid of the civil court in changing the outcome of the case. We strongly advise that one seek the assistance of an attorney in this matter. Moreover, a party may be subject to disapproval by his/her community based on his/her decision to turn to the civil courts. 4. WHAT IS A HETER ME'AH RABBANIM?
In the event that a woman cannot or will not accept a Get, this heter, which must be signed by 100 rabbis, would permit a man to take another wife so long as he deposits a proper Get for his first wife with the beit din. Unfortunately, not all batei din follow the requirement that a Get be deposited with themi before issuing a heter me'ah rabbanim. Historically, a heter me'ah rabbanim. constituted a remedy for men whose wives could not accept a Get because of incapacity or because the wife could not be found. This remedy is easily subject to abuse. For instance, in some cases, a woman may refuse to accept a Get for legitimate reasons and nonetheless the heter will be issued. Moreover, in some cases the husband misrepresents to the beit din that his wife has refused to accept a Get and the beit din agrees to issues a heter me'ah rabbanim. without investigating the matter. (See II:7, outlining legitimate reasons for refusing to accept a Get.) Once a heter me'ah rabbanim. has been issued, according to halakhah a man may remarry. VI. DAYYANIM
1. WHO CAN SERVE AS A DAYYAN ON A BEIT DIN?
A judge on a rabbinic court may be a rabbi or a layperson, but currently, only men may serve as dayyanim. The chief judge is called the ?rosh? or ?av? beit din and it is often he who gives the character to his beit din. The beit din is often referred to by the name of the rosh or av bet din, i.e., ?Rabbi Yossi's beit din.? 2. ARE THERE UNIVERSALLY ACCEPTED STANDARDS FOR DAYYANIM?
Every beit din determines what qualifications will be required for its dayyanim. (See Beit Din Comparison Grid Section for particulars of some batei din.) VII. AGUNAH
1. WHAT IS AN AGUNAH?
An agunah is a woman chained to a dead marriage. Historically, this term referred to a woman whose husband had disappeared with no witnesses to his death and his body was not found. The term is frequently used today to include a woman who is mesorevet Get, that is, one whose husband refuses to give her a Get even though his whereabouts are known. Whether a woman does not receive a Get because her husband's whereabouts are unknown or because he refuses to give her a Get, the woman cannot remarry. 2. WHAT IS THE DIFFERENCE BETWEEN AN AGUNAH AND A WOMAN WHO IS A MESOREVET GET?
Historically an agunah was a woman whose husband had disappeared and a mesorevet Get was a woman whose husband refused to give her a Get. Currently the term agunah is used to describe women in both situations. Nonetheless, some batei din maintain that there is a halakhic distinction between an agunah and a mesorevet Get and thus will not apply the leniencies required by halakhah in agunah situations to mesoravot Get. 3. ARE THERE OTHER CIRCUMSTANCES IN WHICH A WOMAN MAY FIND THAT SHE IS AN AGUNAH?
Yes. If a woman's husband dies and no children had been produced through their marriage, the deceased husband's brother is required to marry her in a special levirate marriage ceremony. It is the current practice in most communities, for the brother to perform the ritual of ?halitzah? releasing his sister-in-law from marrying him. If the brother refuses to release the woman by performing halitzah, she is an agunah and cannot remarry. Under these circumstances, a rabbi must be consulted. Note: Following the ritual of halitzah, the woman's status is that of a divorcee. This can create problems if she later wishes to marry a kohen who is forbidden to marry a convert or divorcee. VIII. CUSTODY
1.WHAT, IF ANYTHING, DOES JEWISH LAW DICTATE WITH REGARD TO CUSTODY OF CHILDREN IN THE EVENT OF THE DISSOLUTION OF A MARRIAGE?
Halakhah provides that custody determinations should be made based on the ?best interest of the child'. However, batei din differ in how they determine what is in the ?best interest of the child.' Historically, it was assumed, and still is assumed by some batei din, that when both parents are equally competent, daughters should remain with their mother, and sons above the age of six should remain with their father. The beit din should carefully reconsider this guideline if either parent is suspected of incompetence or there is a concern about abuse and/or neglect. If a litigant is aware of abuse and/or neglect he/she should speak with an attorney well versed in family law about alerting the proper authorities. Experience has shown that the resolution of this matter is not simple, as not all batei din seek the services of mental health professionals in determining what is best for a child. A litigant may request an outside evaluation by an expert. (See Beit Din Comparison Grid, and Comments and Cautions Sections.) IX. OTHER IMPORTANT ISSUES
1. WHAT IS THE LAW WITH RESPECT TO CONFIDENTIALITY AND CLERGY-PENITENT PRIVILEGE AS IT APPLIES TO COMMUNICATIONS WITH RABBIS?
When a communication is a privileged one, it means that under the secular rules of evidence the details of that communication may not be disclosed in a civil court proceeding. In some states, there is a clergy-penitent privilege that may include discussions with a rabbi. This privilege does not ensure complete confidentiality. Even if such a privilege would prevent a rabbi from disclosing the details of a communication in a civil court, rabbis may reveal to the beit din or to a husband what a wife has told them, for example, disclosures about practices involving mikveh attendance, sexual relations or extra-marital affairs. The fact that communications between a woman and her rabbi may not be confidential can operate to her detriment in beit din proceedings. As such, we generally recommend that when a woman meets with a rabbi to discuss her divorce, she be accompanied by a third party who may act as a witness to the conversation. Insofar as the presence of a third party will destroy any clergy-penitent privilege that may apply, we strongly recommend consulting with an attorney. We advise women who are anticipating or are experiencing a divorce to seek counseling from a mental health professional. Though some states deem communications between mental health professionals and patients to be privileged, this privilege may be a limited one. Please consult with a local attorney to get more information about communications with mental health professionals. Note: One reason to consider confiding in a mental health professional rather than a rabbi is because a mental health professional may not feel compelled to disclose the details of the confidence to a beit din.
DISCLAIMER
This Guidebook is solely for informational purposes. This guidebook is not intended to replace consultation with a rabbi or an attorney, nor is it intended to give legal or halakhic advice. JOFA does not assume any responsibility for actions taken by any person as a result of information in this Guidebook. The inclusion of a beit din in the Comparison Grid does not constitute and should not be viewed as an endorsement by JOFA.
To obtain a free copy of JOFA's Guide to Jewish Divorce and the Beit Din System email agunah@jofa.org
The Guide to Jewish Divorce and the Beit Din System includes the following sections:
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