New York’s neighborhoods are filled with people from all over the world. People from all different faiths and cultures have religious betrothal practices and traditions. With that comes religious rules for divorces as well, all of which are based on thousands of years of tradition and religious practice, such as in the Jewish, Muslim, Christian and Baha’i religions. Unfortunately, I’ve found that a lot of divorce practitioners are unaware of the intricate and critical cultural and religious differences that come into play when representing a client in a divorce. In this first post on this subject, I’m going to talk about how divorce relates to a religion that has been practiced in New York since the 1600s: Judaism.
In order for a couple to divorce in Jewish law, the husband must voluntarily consent to the divorce by giving the wife a document called a Get, and the wife must voluntarily accept the Get. It is critical to point out firstly, that the treatment of women and men in this regard is not equal. Secondly, and significantly, there is a critical common misperception that the ceremony only applies to Orthodox Jews. I often hear: “I’m not religious.” “The Get doesn’t apply to me.” “I am not Orthodox.” However, this is not so. Due to these misperceptions, a family law practitioner needs to educate her clients — those getting married or divorced — that this religious ritual can have significant consequences to Jews of all levels and that there can be disastrous outcomes—not only for women, but less known, also for their future children. Therefore, it is critical for the divorce practitioner to both understand this religious practice, as well as to know the steps to be taken to prevent disastrous outcomes.
The unequal treatment of men and women stems from the following: If the wife refuses to accept the Get, it is not an insurmountable problem for the husband. There is a loophole available to him. The husband can receive permission from one hundred Rabbis, deeming his wife to have accepted the Get. He will be able to remarry, have Jewish children and move on with his life.
However, if the husband refuses to give the wife a Get, that’s a whole different story. The wife can become chained to the marriage (an Agunah). This woman will be left in a state of limbo, not able to remarry as a Jewish woman, and not able to bear a Jewish child. If she divorces only civilly and remarries only civilly, and does not receive a Get, and then has a child, that child is then considered a “mamzer,” an illegitimate child. Under Orthodox and Conservative tenets that child is not considered Jewish, and in Israel, not considered Jewish on any level. This child is then left facing a future with possible significant issues when wanting to marry. Whatever one’s personal feelings are, looking into the future of that child, the consequences of this situation can be stark.
In my talks on divorce involving Jewish couples, I focus on the preventative remedies to be taken to likely forestall these difficult and painful future circumstances. These steps can be taken prior to marriage (special prenuptial agreements), during a marriage (special post-nuptial agreements), and upon divorce (certain procedures). While New York State has attempted to address this by requiring the plaintiff, and in some circumstances, the defendant as well, to sign a legal document, requiring them to remove all barriers to the other party’s remarriage (“Removal of Barriers to Remarriage”), it does not solve the problem, as the husband’s consent needs to be voluntary.
Understanding this Jewish religious practice, along with other religious and cultural traditions and practices, is critical to properly serving my Jewish clients, who are often unaware of these issues and their major consequences. I endeavor to take steps to protect my clients to the extent possible, as well as to ensure that my clients know the long-term consequences of the decisions they make today. I’m proud to say that I have participated in workshops and lectures addressing Jewish divorce at the Nassau County Bar Association, Hadassah Organization, synagogues, and community events across the area.
Being culturally competent and knowledgeable about many different religions is, in my view, a minimum requirement for the job of a divorce mediator and a collaborative divorce attorney. In subsequent posts I will delve into the traditions of the other faiths that enrich our culture here in New York — Stay tuned!
