In this retrospective, I will draw on my decadeslong experience working with agunot, first as a New York City trial attorney and then as the founding director of Get Jewish Divorce Justice (GJDJ) in Los Angeles (since 2012) to analyze the emerging solutions both from secular law and from within the Orthodox or Israeli rabbinic establishment, and the juxtaposition between them, and will make suggestions for future actions. I will limit my discussion of Israel and Europe to laws that directly affect the agunah plight in the United States. I use the gender pronoun “she” and the term agunah to refer to the spouse who is unjustly denied a get, even though men also suffer from igun— but do so at far lower rates.
Coercive Control Legislation
The term “coercive control (CC)” was coined by Dr. Evan Stark, who found that domestic violence laws did not effectively predict or prevent femicide or violence against women.1 Rather than focusing on discrete crimes of assault on which traditional domestic violence laws were based, the recognition of CC shifts the model of liability to an underlying pattern of conduct by the abuser meant to subordinate the will of the victim, with or without physical assault. CC includes a calculated pattern of intimidation, isolation from all social supports, deprivation of necessities, and control of the victim’s movements and finances.
As of 2010, laws had been enacted in several European countries criminalizing psychological abuse within marriage, but were not applied to get abuse until 2020 in the UK. In 2020, using the criminal CC law (UK Serious Crime Act, 2015), barristers Gary LesinDavis and Anthony Metzer prosecuted two get refusers who had manipulated the granting of a get. In one case, the husband gave the get on the eve of trial—a stunning achievement. In another case, the get refuser was convicted and is currently serving an 18-month sentence, but still refuses to give the get. In the latter case, there was a backlash from the UK rabbinic courts because under Jewish law, a man may not be coerced by a non-Jewish court to give a get, and any resulting get is deemed invalid (get me’useh). Moreover, one may not sue in a gentile/secular court without the express permission of a rabbinic court (heter arkha’ot). To overcome this objection, a woman needs to obtain from a rabbinic court a prior ruling that the husband is compelled to give the get (hiyuv get ̣ ) so that she is, in effect, acting as an agent of the rabbinic court in her prosecution in the non-Jewish court.
In 2020, the UK cases encouraged me, on behalf of GJDJ, to lobby for the passage of a CC bill in the California legislature, specifically arguing that get refusal is part of the pattern of CC that constitutes domestic violence under California family law. To avoid any constitutional violation of the separation of religion and state, we maintained that the legal violation at issue was not the actual refusal to grant a religious divorce, but rather the use of that refusal as a tactic of intimidation that causes insidious emotional impact to the victim. The bill, enacted on January 1, 2021 under Cal. Fam. Code §6320 (C)(a), defines CC as “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.” Of course, the law does not enumerate religious divorce in the list of examples of CC, but the description of CC behavior provides secular legal language to describe get abuse. Since the passage of the bill, I (working with GJDJ) have educated California agunot and their attorneys on how to use the law effectively. In February 2022, a California trial court ruled that a husband’s refusal to give a get was part of a pattern of his controlling behavior and issued a restraining order against him and denial of custody (2022 Cal. Super. LEXIS 87063). He executed the get the same day. In another GJDJ case, the get refuser granted the get on the eve of a hearing. In both cases, the agunah had a prior ruling of a rabbinic seruv or a hiyuv get ̣ . My hope is that courts for whom the mention of a religious matter would be deemed entirely inappropriate will consider get refusal as part of the pattern of CC.
Note that the relief available in such cases is limited to the basic domestic violence remedies in California— that is, the granting of a restraining order, a presumption against granting custody to the abuser, and enhanced spousal support. It does not require a man to give a get, but incentivizes him to do so, and is not a criminal statute, unlike the UK CC law discussed earlier
The New York Get Laws Compared with CC Laws
In my analysis, CC encompasses three aspects of get abuse. It is a liberty offense by depriving the spouse of personal liberty and autonomy; a form of contract fraud by misusing the power differential between the parties to obtain illegitimate benefits; and a form of domestic violence, as discussed previously.
The first two aspects of CC are addressed in the New York get laws. The first (DRL §253) denies the right to seek a divorce to a spouse who refuses “to remove the barriers to remarriage” of the other spouse, thereby depriving the spouse of personal liberty and autonomy. The term “removal of barriers to remarriage” serves as the secular legal language that describes get refusal, in the New York and UK divorce statutes. The equitable civil remedy is to deny civil divorce to a get refuser when he is the one petitioning for the privilege of divorce.
The second of the New York get laws (DRL §236 B (5)(h) and (6)(d)(o)) addresses contract fraud, in which there is oppressive bargaining or extortion to obtain financial or custodial benefits to which the husband is not entitled—such as marital property, spousal support, monetary payoffs, custodial rights, or demands to withdraw a restraining order or criminal charges. When there is evidence of such demands, the court, under equitable distribution principles, may allocate a lesser— or no—portion of the marital property to the abuser. Furthermore, the court may award enhanced or lifetime maintenance until the get is given, in part due to the compromised economic prognosis of the spouse who cannot remarry and benefit from a second income.
Neither of these two New York laws focuses on the emotional impact of get abuse as rendering “domestic violence” upon the victim. The California law encompasses all three aspects of get abuse, but from the prism of “domestic violence.” Moreover, under the CA law, get abuse is viewed as part of a pattern of abusive conduct, and the law does not focus on the singular failure to do a religious act; as such, it is less likely to be challenged as a violation of the constitutional separation between religion and state. In contrast, in 2017, a New York court held that the use of the second get law by an agunah to obtain an increase in spousal support was an unconstitutional use because there was no evidence that the husband was withholding the get to extract economic concessions, but rather because of his own Jewish religious beliefs (Masri v. Masri, 50 N.Y.S.3d 801, NY Sup.Ct.2017). The case sent shivers through the get refusal prevention community. Similar decisions have followed.
In addition, the provisions of the California law are less likely to be viewed as “coercing” the granting of the get per se but as part of a pattern of controlling behavior—thereby avoiding the potential halakhic invalidity of a coerced get (get me’useh). As such, the controversy surrounding some gitten obtained through the UK law is less likely to be raised. However, the remedies available through the California statute are limited to those available in civil domestic violence cases—namely, obtaining a restraining order, custody, and increased spousal support. It does not provide for incarceration, which would be permitted under the UK criminal law, or a redistribution of marital community property, which is allowed under the second New York get law.
Currently, CC statutes have been enacted in Connecticut (2021) and Hawaii (2020), and bills are pending in many states, including Illinois, New York, Maryland, New Jersey, and Florida. To date, get refusal as a form of CC has been prosecuted only in California, but I would encourage agunah activists and attorneys to prosecute such claims wherever applicable
I would also urge New York activists to sponsor a civil rather than a criminal CC bill, because, unlike in the UK and other European countries that do not have a constitution, criminalizing CC in New York may be challenged as violation of due process if found to be “vague” or “overbroad.”
The Impact of Israel’s Foreign Nationals Law on U.S. Agunot
Israeli legislation permits the sanctioning of get refusers through freezing of their professional or driver’s licenses, seizing assets, incarceration, and more. The Israeli Rabbinic Court (IRC) has accepted these sanctions as noncoercive in the get process, such that any resulting get is viewed as valid. However, these sanctions applied only to Israeli citizens until the amendments to the Marriage and Divorce Law, 5713-1953 (4b et al.) in 2005, 2018, and 2021. These amendments extend the IRC jurisdiction over get refusers to non-Israeli citizens or foreign nationals, in a two-pronged fashion: (1) over their person once they set foot on Israeli soil (tzav ikuv), and (2) over their assets that are located in Israel (tzav ikul).
The law applies only to women seeking a get who married in accordance with Orthodox Jewish law and who have summoned the husband for the get in a diaspora rabbinic court, but he has failed to appear for a period of four months; or if a period of six months has passed since the rabbinic court ruled that he is obligated to give the get and he has failed to do so; and a civil divorce decree or action was filed in civil court in her country of origin. The jurisdiction of the IRC is limited to the issue of the get and not to matters ancillary to civil divorce, such as distribution of marital assets or custody; the latter remain within the jurisdiction of the foreign civil court. However, the IRC has the power to impose sanctions and marital maintenance (mezonot) for as long as he refuses to comply with their rulings. Since 2018, many non-Israeli men have given the get when faced with the possibility of being detained in Israel because of this law.
Once a get refuser arrives in Israel, he is summoned to the IRC to address the get and is not permitted to leave the country, by way of a detention order (tzav ikuv), until he complies or authorizes the IRC to assign an agent in the agunah’s local community to retrieve the get.
The fact that many batei din in the diaspora do not send a formal summons (hazmanah) is problematic, because the forty-day period that triggers the assumption of jurisdiction is not recorded. In addition, most batei din do not issue a ruling of hiyuv get ̣ in the absence of the get refuser, but only issue a seruv, for failure to appear. Rather, they prefer to negotiate through informal meetings and telephone calls. Some state that hazmanot and seruvim that are ignored undermine their authority and do not achieve practical results in any case. The only diaspora beit din that issues a hiyuv get ̣ when the get refuser fails to appear is the International Beit Din, discussed later.
In my work, if I am aware of a get refuser who may be visiting Israel, I contact the Agunah Department of the Rabbanut and instruct the agunah to open a file for the get in the IRC, with the help of Israeli organizations. Once the get refuser arrives, he is summoned to the IRC to address the get and is not permitted to leave the country, by way of a detention order (tzav ikuv), until he complies or authorizes the IRC to assign an agent in the agunah’s local community to retrieve the get. In most cases, the agunah must argue the case in person; therefore, travel to Israel would be required.
When the get refuser is an Israeli citizen, jurisdiction over him is automatic and the conditions described previously are not required. As such, as long as he is properly served in the diaspora, his assets may be frozen if he fails to comply with the IRC rulings, and he must appear in person or through an attorney to defend or appeal his case.
These are aggressive laws assumed by the State of Israel under the mantle of serving diaspora Jews in distress, wherever they may be. This development underscores the relative powerlessness of diaspora batei din to resolve intransigent cases of get refusal. This is especially relevant in the United States, where a court cannot constitutionally enforce an agreement to give a religious divorce, even if signed by the parties and court. The court can only enforce an agreement to resolve the issue of the get before a designated beit din as an arbitration forum where there is a prenup or arbitration agreement.
The Beit Din of America Jewish Prenuptial Agreement—Standard Version
The JPN is enforceable as an arbitration agreement. Arbitration is a method, born out of contract law, in which disputing parties freely choose to vest authority in a designated person or panel to pass judgment on their respective claims outside the civil courts. Moreover, the parties choose which laws, if any, will govern. A beit din is an arbitration forum recognized in American law, whose judgments (piskei din), termed “awards,” will be enforced in the civil courts just as any judgment adjudicated by a civil court judge would be.
By 1997, the Beit Din of America (BDA) had published a Jewish Prenuptial Agreement (JPN) comprising two parts: (1) a “binding arbitration provision” that required the parties to submit any dispute regarding the status or dissolution of the Jewish marriage by way of a get to arbitration in a rabbinic tribunal and (2) a “prenuptial agreement” (tenaim aḥronim or post-marital conditions of marriage) based on a formula that concretizes the halakhic obligation of mezonot (support) incumbent on a Jewish husband to his wife for so long as they are deemed married under Jewish law. That obligation is specified in the agreement as $150 per day, thereby providing the husband with an incentive to give the get promptly or accumulate a debt that could be enforced as a money judgment in secular court.
The BDA prenup is meant to overcome the halakhic requirement that a get must be given voluntarily and not as the result of coercion, financial or otherwise. Whereas leaders in the ḥareidi community deem the imposition of a daily fee to be a penalty (k’nas) for refusing to give the get, even where it is self-imposed (k’nas atzmi) by way of a prenup, the BDA and many leading halakhic authorities maintain that the daily fee (mezonot) is not a penalty but rather the husband’s halakhic support obligation as stated in the ketubah, for so long as they are Jewishly married. Accordingly, the support obligation is not reciprocal; only the husband pays the fee for noncompliance.
In 1997, there was only one version of the BDA JPN for all U.S. states. The prospective couple could choose to submit to the BDA only for the issue of the get or to have the beit din also adjudicate financial and/or custodial matters, in accordance with Jewish law and equity or the civil laws of equitable distribution (New York) or community property laws (California).
The BDA California JPN (2014)
In 2012, I spearheaded the drafting of revisions to the standard form of the JPN to conform with California law, with the assistance of Alexandra Leichter. In 2014, the BDA published a California version of the JPN that differs from the standard version in the following ways: (1) the beit din is authorized to adjudicate only the issue of the get and not financial or custodial matters ancillary to divorce; (2) the daily mezonot fee of $150 per day is reciprocal, meaning that neither spouse pays the other unless and until one summons the other to the beit din for a get and the other refuses to appear. This fee accumulates as a debt to the refusing spouse. The document is characterized as an arbitration agreement and not as a regular financial premarital agreement that must conform with the California Premarital Agreement Act (CA PMA). Under the CA PMA, any agreement that seeks to modify spousal support is invalid unless both spouses have their own attorney before signing and complete financial disclosure must be exchanged. Moreover, the agreement must have mutuality or reciprocal terms to be valid and enforceable.
The CA JPN is enforceable in the rabbinic and secular courts of any state. In fact, it is preferred by couples who want to adjudicate financial, support, and custody matters in civil court and to submit the issue of the get only to the beit din. It is also preferred by anyone wary of signing an agreement in which only the husband is held accountable for delaying a get.
The BDA’s JPN has been successful in deterring get refusal and has been upheld in civil courts as a valid and enforceable neutral arbitration agreement, overcoming constitutional challenges of violating the separation between religion and state. It is endorsed by many leading rabbis as well as the Rabbinical Council of America (RCA) and has served to raise the consciousness of the plight of the agunah. However, it has not been embraced by the ḥareidi community, for reasons that are both values driven and arguably halakhic, as discussed next.
The Yashar Heskem—Prenup for the Diaspora Hareidi ̣ Community
In 2020, the Yashar Heskem agreement (Heskem) was promoted by Eli Goldbaum as a binding arbitration agreement deemed kosher by leaders of the ḥareidi community, such as Rav Shlomo Miller and Rav Moshe Sternbuch in Israel. Unlike the BDA’s JPN, the Heskem does not provide any financial consequences to the get refuser for failure to appear promptly before the beit din when summoned. The endorsers of the Heskem deem the daily mezonot payments to be financially coercive, which would render the resulting get invalid as a get me’useh.
Moreover, the Heskem assures that the couple will not sue in secular courts by submitting adjudication of all matters ancillary to divorce—namely, support, property distribution, and custody (except where custody is not arbitrable by law)—to be decided in accordance with halakhah. Furthermore, the prospective couple must stipulate that they will raise their children in a kosher and Sabbath-observant home if they divorce.
The International Beit Din is a lifesaver for women who live in communities where the local beit din does not issue a summons unless they know that the husband will cooperate.
A caveat of using the Heskem is its exclusive use of halakhah as the governing law. Halakhah does not recognize marriage as an economic partnership with a presumption of an equal sharing of the assets accumulated during the marriage. Moreover, spousal support of the wife ceases upon the giving of the get. The husband is obligated to continue to support the children and their education. The wife is entitled to receive only her separate property that she brought into the marriage, inheritance monies, and the principal of her own earnings, if any.
The main benefit of the Heskem is to avoid drawn-out litigation in both rabbinic and civil courts, with their concomitant expense and turmoil, especially when children are involved. The very act of signing a prenup that designates a specific beit din expedites the divorce process by preventing a get refuser from engaging in “beit din shopping” or choosing a corrupt beit din. In addition, the Heskem authorizes the beit din to proceed in the absence of a spouse as an incentive for a recalcitrant spouse to appear or bear the consequences of a judgment without benefit of his or her testimony. Moreover, the Heskem requires the setting of a timely schedule for finalizing the proceedings and, at the first session, it requires the making of interim payments that are necessary for the continuation of the household. These provisions can prevent some egregious loopholes in the beit din process for couples who would not otherwise avail themselves of the secular courts
The Tripartite Agreement
In 2004 (revised in 2017), Rabbi Dr. Michael Broyde proposed the Tripartite Agreement, which is based on a halakhic formulation of conditional marriage that, if adopted, would truly solve the agunah problem. It is named tripartite because of its reliance on three halakhic mechanisms: (1) the marriage exists only on condition that the couple are living together; (2) if they fail to fulfill this condition by living separately for over 18 months, the breach triggers the husband’s advance authorization to any observant Jewish males to form a three-person beit din to give his wife a get; and (3) it requires a beit din to implement the agreement and supervise the process. It is self-effectuating in that it works without any intervention from the secular court, unlike the JPN.
It is an elegant solution, but it has not been adopted by mainstream Orthodoxy, although it has been endorsed recently by Dr. Rachel Levmore. I advise young couples to sign both the JPN and the Tripartite Agreement as a backup in the event that the husband disappears or is intransigent in his refusal.
Public Shaming: Grassroots Social Media Influencers
By 1997 Yeshiva University students, spearheaded by Josh Ross, led informal public demonstrations against get refusers with the permission of Rav Hershel Schachter. These were appropriate cases of recalcitrance warranting sanctions, according to the Harḥakot of Rabbeinu Tam. In 2002, the Organization for Resolution of Agunot (ORA) formed and has effectively used the threat of social media public shaming campaigns to persuade many get refusers to give the get or suffer the consequences of widespread public outrage.
The marriage may also be deemed invalid if the groom fails to disclose to his bride, whether intentionally or unintentionally, that he has a major defect (mum gadol).
In 2021 Orthodox and ḥareidi women who had thriving businesses as social media influencers took up the cause of several agunot, which went viral and succeeded in getting their gets. However, many of these private influencers were sued for defamation, and although the suits were not successful, it created a chilling effect on these grassroots social media campaigns. Persons who make a living through social media, unlike agunah organizations, cannot absorb the cost of litigation. The threat of lawsuits against the influencers is meant to undermine their First Amendment rights to freedom of expression and assembly. When a beit din has declared a spouse to be a get refuser, public shaming is a valid form of expression and an obligation both halakhically and civilly.
Rabbinic Halakhic Solutions: The International Beit Din (IBD)
The IBD was established by Rav Simcha Krauss, z”l, in 2014 with a commitment to resolve the most challenging cases of get refusal using halakhic solutions that are, unfortunately, rarely used by batei din today, such as voiding marriages. Procedurally, the IBD adopted the method of the Israeli Rabbanut in bifurcating its rulings—first addressing whether and to what degree a get is obligated, and thereafter any other claims the parties have submitted. Thus, the IBD issues a hazmanah to the spouse to appear at an evidentiary hearing, in person or virtually. If he does not respond, the beit din will conduct a hearing in his absence, with the agunah and relevant documents and witnesses, resulting in a p’sak (ruling) as to whether there is an “obligation to give a get” as a mitzvah (mitzvah l’garesh) or the more severe requirement of hiyuv get ̣ . Whereas other diaspora batei din merely issue a seruv, the IBD issues an actual p’sak. Such a ruling is halakhically significant in that it prohibits the get refuser from delaying the giving of the get for any reason, such as resolving the financial or custodial disputes first, or from making any conditions before granting the get. Such delays and conditions are the frequent subtext of get extortion. Moreover, such a p’sak serves as grounds for invoking coercive control claims in civil court and also triggers the 60 days of noncompliance requirement for the IRC to take jurisdiction over a non-Israeli get refuser, if he visits Israel.
Thereafter, if he does not comply, the IBD further deliberates as to whether there are grounds for voiding the marriage, thereby freeing the agunah to remarry without a get. Such grounds include a defect in the wedding ceremony (kiddushin), such as the status of the officiating rabbi or the designated constitutive witnesses being deemed invalid because they were not Torah observant or were close blood relatives to either the bride or groom.
The marriage may also be deemed invalid if the groom fails to disclose to his bride, whether intentionally or unintentionally, that he has a major defect (mum gadol). If this defect is later found, the marriage can be deemed to have been entered into under false pretenses (kiddushei ta’ut) and can be voided on this basis. Examples of major defects include the finding of a preexisting mental health condition or physical defect, such as schizophrenia, impotence or the refusal to have children, homosexuality, sexual sadism, or an undisclosed criminal record.
Another basis for voiding a marriage that is rarely used and is applied in conjunction with other halakhic grounds is an umdana demukhah, or assessment of the wife’s original expectations regarding her husband’s mental status. For example, if the husband developed severe psychological problems during the marriage, a beit din can make the assessment that had the wife known prior to the marriage that her husband would become mentally dysfunctional, she never would have married him. This breach can be attributed to the marriage contract in the first instance, based on the latent existence of the defect in the husband and, therefore, in the marriage contract.
All of the above solutions are not novel; they are within the halakhic corpus and have been used throughout the diaspora and in Israel, but infrequently. From 1997 until 2006, Rabbi Emanuel Rackman freed agunot by voiding marriages, but in 1997 Rav Joseph Ber Soloveitchik vehemently opposed implementing these principles. He stated that a presumption in the Talmud that women would prefer to be married under any conditions (tav l’meitav tandu) was an existential category depicting all women, and thus seeking to void a marriage was futile. This position differs most notably from that of Rav Moshe Feinstein, who maintained that such a presumption did not apply to all women and was subject to sociological changes or communal norms. Nonetheless, Rav Gedalia Dov Schwartz, the former head of the Beit Din of America, freed women on the above principle from 2009 until 2014, working with Agunah International Inc.
The IBD has improved upon the above prior efforts by batei din by publishing its decisions, delineating the facts, halakhic bases, and precedents upon which its decisions rely. The IBD, through its teaching institute, also engages rabbis and dayanim in studying the p’sakim and their methods so that other batei din may implement similar methods in freeing agunot.
The IBD does not charge a fee for assisting women or men who are in need of a get. Although their p’sakim have not been recognized by the Rabbanut, there are Orthodox rabbis who would perform a marriage for a woman who has obtained a release to remarry (p’tur) from the IBD. Moreover, an IBD p’sak is recognized by the Rabbanut for the purpose of triggering the Israeli Foreign Nationals Law. Several IBD p’sakim have been successfully used to leverage the giving of the get when the refuser realizes that he no longer wields control of his estranged wife’s destiny.
Finally, the IBD is a lifesaver for women who live in communities where the local beit din does not issue a summons unless they know that the husband will cooperate. These women may not even open a file requesting a get and have no access to a beit din.
I believe that systemic solutions that are within halakhah must be used. It is my hope and prayer that the methods the IBD employs will be studied and become normative among mainstream Orthodox rabbinic courts and authorities.
Conclusion
At the core of any solution to get refusal is the recognition that marriage in Jewish law is essentially conditional. The conditions may be implied or expressed in a written agreement. The conditions are delineated in the Torah, the Mishnah, the Talmud, and responsa literature. After all, if marriage were not conditional, divorce would not be permitted at all (as in Catholicism). If the conditions are not met, there are grounds for divorce and, in certain circumstances, grounds to invalidate the marriage. This is the basis for the halakhic solutions delineated previously and those implemented by the IBD. If these systemic solutions were widely accepted, the insidious power of the get refuser would be greatly diminished, as would the manipulation of the agunah.
Meanwhile, we continue to seek and implement legislative and contractual solutions that deter get refusal, such as prenuptial agreements, coercive control laws, and get laws. But these remedies cannot enforce the giving of the get in the United States, as it is a violation of the constitutional right to be free from religious coercion. Nor can a beit din coerce a man to give the get, but it does have the power to use age-old halakhic solutions to free agunot. Unfortunately, these solutions have not been widely adopted by batei din.
What will transpire in the next 25 years? As Jewish women in Israel and the diaspora become halakhically educated and share information on social media, one can hope they will march to their rabbis and batei din and ask: Why are you not using the solutions that the Torah has provided us to free our women, unborn children, and community from the shackles of iggun?