To understand the need for beit din reform, one has to understand the beit din system as it applies to family law. I have acquired my knowledge of the American system by working as an agunah activist and advocate for 25 years. I was a founder and director of Agunah Inc. for 20 years. For the past five years, I have served as a caseworker for G.E.T. My late husband, Rabbi Irwin Haut, who was also a practicing attorney, likewise dedicated himself to helping agunot.
One of the most frequent questions I am asked by agunot is in which beit din should they litigate their cases. The sad truth is that I am reluctant to refer an agunah to any beit din. I do not feel that agunot, or anyone, husbands included, are safe in any beit din of which I am aware. Unfortunately my experience has led me to the view that American Jews are better off litigating their divorce issues such as custody and visitation, as well as division of assets in civil court, not in batei din, although the get itself has to be obtained through a beit din.
One of the greatest problems with batei din is the total lack of any oversight. Each beit din is a world unto itself. There is no community monitoring of any kind. The rabbis make decisions that affect people’s lives in major ways, by deciding division of assets and, more seriously, custody and visitation, without answering to anyone. Even worse, there is no court of appeals, no possible way to challenge a decision and no address for complaints.
All this takes place in a system where the dayanim (judges) are often self appointed, or appointed by organizations. The religious community has no say as to who can be a judge. There are no elections, and there is no input from the very community serviced by the courts. Moreover, there are no known standards to which judges adhere that apply across the board. Judges do not have to pass any tests to qualify to sit on a beit din. Some batei din do not require their dayanim to have rabbinical ordination. Many do not require a college education.
There are no standardized fees. Often, dayanim are paid directly by the litigants. Sometimes spouses may each pay different amounts. Some dayanim are paid by the case and some by the hour. When paid by the hour, many batei din prolong cases in order to make more money. Sometimes decisions are not released until the dayanim receive payment.
Very often, decisions are handed down without any written opinions explaining how the dayanim arrived at the decision. There are no reasons offered, and no sources forthcoming, merely a few lines detailing the final decision—how much money each spouse receives, who gets custody, and the visitation schedule. I have seen many such decisions.
Why does anyone submit to the jurisdiction of such courts? The answer varies. Some divorcing spouses do so because they believe that it is their religious duty to go to a Jewish court rather than a civil, non-Jewish court. Some do so because of community pressure. In certain neighborhoods, such as Boro Park in Brooklyn, signs are hung on trees and on lampposts to inform the community that so-and-so has gone to civil court, in defiance of Torah law directing Jews to rabbinical courts. Many batei din refuse to separate the get from other divorce issues, and insist upon dealing with all aspects of the divorce. Litigants are directed to sign shtarei berurin (arbitration agreements). These agreements are accepted in civil court as the divorce agreement. Overturning them is possible, but it is time consuming and expensive. Some batei din refuse to deal with the get unless and until a shtar berurin is signed by both litigants. If one spouse insists upon litigating all aspects of the divorce in a beit din, the rabbis often will honor that request, and refuse to deal with the get alone. A seruv (contempt citation) may even be issued against a person who refuses to litigate in a beit din instead of a civil court. Many women are forced to choose between obtaining a get and litigating custody and visitation in civil court. This choice often translates into a mother’s having to choose which takes priority – her own future, or the welfare of her children.
While I believe that most batei din are safe for neither spouse, they are less safe for women. Unlike civil courts, in a beit din, all the judges are male. There is no woman’s voice in the decision making process. The rabbis are likely to be fathers, and sometimes empathize with a man’s desire to be with his children, and will therefore split up the children in a family. Often, dayanim focus on the religious importance of sons staying with fathers. After all, the mother is probably not well versed in Talmud and is unable to study with her son. Moreover, older boys cannot sit next to their mothers in shul. Therefore, many batei din tend to reward fathers with custody of their sons. Too often, dayanim overlook male violence, and I have seen some decisions awarding custody to fathers who have been violent toward their sons.
Another extremely troubling trend that I have seen in rulings is that women’s charges of abuse, verbal, physical or sexual, are often dismissed or discounted. Rabbis often counsel women to remain in abusive marriages, telling them “he is sorry he hit you and will not do it again.” I once called a rabbi who so counseled a woman and told him that if anything happened to her, I would inform the police that he, the rabbi, had directed her to remain with her abuser. The rabbi immediately changed his mind and gave her “permission” to leave.
A further problem with batei din is the lack of equitable distribution of assets, which is a guiding principle in civil courts. Halakha provides divorced wives with little financial support, other than their ketubah, a rabbinic creation for the financial protection of divorced women. The ketubah amount was originally supposed to be enough for a woman to live on for at least a year, but women rarely receive it. Few rabbis know its current cash equivalent, which is tied to the market value of silver. Some batei din routinely ask women to sign a waiver of their ketubah at the beginning of the get process. Others ignore it entirely. I was once at a get proceeding where the woman demanded her ketubah money. She refused to accept the get without it. Finally, the rabbis and the husband agreed to give it to her, after they determined the amount, which they said they could not do immediately. She accepted the get but, despite repeated calls to the beit din, she never received her ketubah money.
Not only do women do less well in beit din than in civil court, but they are often victimized by extortion. Dayanim do not outlaw extortion as a means of obtaining a get. On the contrary, they often serve as negotiators of extortion. Aware that women need the get more than men need to grant it, their goal is to obtain the get, at any cost. They rarely look at the financial future of the women and children. Gittin are commonly “sold,” and rabbis often mediate the sale, negotiating for the best price. As a result, gittin sometimes carry a heavy price, into thousands and tens of thousands of dollars, sometimes hundreds of thousands. While the religious community turns a blind eye to these proceedings, the price of gittin rises. Recently, a person in Brooklyn who wishes to help agunot has been paying men to grant a get, sometimes paying extremely large sums. Every time a get is sold, it makes the likelihood of more such sales even greater, as word spreads of the large sums.
Another problem with the beit din system in America is the lack of geographical jurisdiction. Litigants can go to any beit din, and there are many. This policy often provides husbands with greater leverage than wives. Rabbis are more likely to be acquainted with husbands, who may be members of their congregations or may have been their students in yeshiva. While all batei din say that dayanim should recuse themselves if they are personally acquainted with one of the litigants, in practice this is often not followed.
There are batei din, and dayanim, with a reputation for being corrupt. I have personally witnessed dayanim try to extort money that they have not earned from agunot. Some batei din “sell” heter meah rabbanim, documents permitting men to remarry without being religiously divorced from their wives. There are some cases where this is halakhically permitted, under circumstances when a woman refuses to accept a get. But this halakhic tool which frees men (there is no similar document to free women) has often been abused and granted in cases in which the husband desires to avoid the litigation process and to deny his wife her freedom, even though she desires a get.
“Not only do women do less well in beit din than in civil court, but they are often victimized by extortion.”
Another source of corruption in batei din is the phenomenon of to’anim (rabbinical court pleaders). Their function is similar to attorneys. There is a limited pool of such people, and unfortunately some are known to be dishonest. For example, certain to’anim work together in pairs and make deals with each other—this time my client wins, next time your client wins. Because their corruption is evident, and there is no way to stop it, a number of American batei din prohibit to’anim from appearing in their courts. While this is commendable, it has an unfortunate result. In Israel where to’anim are licensed and have to pass tests in order to practice, women have lately been admitted as to’anot, thereby permitting a female voice and presence in the beit din. In America this is not possible, because of the prevalence of corrupt to’anim.
Thus, we have a legal system deciding matters of great importance to families and to the community as a whole, which is not policed by anyone, and there is no way to appeal its decisions. I recognize that there are instances of corrupt judges and wrong decisions in the civil legal system, but there are means of dealing with such matters built into the system itself.
What can be done about the situation in the batei din? In a few instances, women have attempted to sue corrupt rabbis and batei din in civil court. In two New York cases which received widespread publicity, the rabbis were represented by well known attorneys who regularly represent Orthodox organizations, while the women had to hire their own counsel. The New York courts are reluctant to decide such cases, not wanting to get involved in religious matters. What other recourse is there? A lot, if the Orthodox community is willing to provide for such recourse. What we need is a Supreme Court, to which disputed decisions can be appealed, but it is unlikely that the rabbinate will institute this. It is time for the community to step in and attempt to right some wrongs. While there is an absence of communal cohesiveness, and many different Orthodox communities, there are some actions that can be taken. Aside from the obvious strategies such as communal shunning of recalcitrants, and pressure on rabbinical organizations to remedy the agunah situation, there is still much that can be done. It is high time that the Orthodox community begins to hold accountable batei din that deal with family law. They must not be permitted to continue to operate in secrecy.
I propose that the modern Orthodox community set up a grass roots complaint committee, staffed by social workers, psychologists, rabbis, and lay people, including, of course, women. Litigants who feel that they have not received justice from a beit din would be encouraged to appear before the committee and present their case. The committee would then review the case and the decision, and communicate its findings to the beit din. While a committee such as this would have no power to enforce any changes in the decisions reviewed, it would be putting the beit din on notice that its deliberations and decisions are being monitored. If the committee decides that the beit din rendered a wrong decision, it might, in addition to informing the rabbis in question, also publicize its findings. This would allow the public to know what is happening and be steered away from a particular beit din. As some batei din operate as businesses, informing people to stay away will adversely affect their operations.
The Orthodox community should begin to research batei din and make their findings public. The JOFA research project is a major step forward. It offers potential litigants information about different batei din, thereby providing means of making informed decisions about which to choose.
Recently, there has been a spate of public instances where Orthodox rabbis have been accused of sexual harassment. Rabbinic committees have been formed to investigate these charges. Yet, the many instances of corruption and extortion, by rabbis and batei din regarding family law have been ignored. While these cases do not have the shock value of sexual abuses, they are abuses nonetheless. They significantly affect lives of families. Where are the rabbinic committees to look into these abuses?
I suggest that the same organizations that have committees to look into allegations of sexual abuse appoint committees to investigate beit din abuse. For these committees, they should appoint people who are not personally involved with the batei din that they investigate. The committees should be composed of rabbis and lay people, including women.
Just as kashrut organizations have guidelines and standards, and the ability to make known abuses of kashrut regulations, we need to set standards for rabbis and batei din. We need a system to determine the kashrut of batei din like an OU or OK to publicize which are honest and somewhat accountable, and which are not to be trusted at all. It is time for the Orthodox community to take some responsibility for the courts with which our most vulnerable members must deal. This will help to restore our pride in the system of justice that is our heritage.