Rabbi Michoel Zylberman[1]
The Proper Timing of a Get
At what point in the divorce process should a couple execute a get? The Beth Din of America recommends that once the husband and wife have separated and there is no realistic chance of reconciliation, a get should be given at the earliest possible point.[2] This is true even when other end of marriage issues (e.g., distribution of marital property, spousal support, custody) have not yet been resolved.[3] In 2000, the Beth Din of America publicized “Standards for Batei Din” (endorsed by the Rabbinical Council of America and the Orthodox Union and signed by leading rabbinic figures, including our previous Av Beth Din, Rabbi Gedalia Dov Schwartz zt”l, and Rabbi Hershel Schachter shlit”a) which includes the provision that “[i]n all divorce proceedings the get will be given as the first item of business.”
Removing the get as a matter of contention eliminates the possibility of the get being used inappropriately and unethically as a bargaining chip by either party to extract concessions from his or her adversary in divorce negotiations.[4] Furthermore, delaying the get increases the likelihood that it will never be given. In this article, we will briefly explain the theoretical basis for objecting to this approach and how these objections may be alleviated.
Rema writes in his Seder Ha-get that before receiving a get a woman should either return the kesubah document to her husband or waive her right to collect it.[5] This prevents the husband from subsequently calling into question the validity of the get. Were the wife to demand the amount owed to her under the kesubah after the get had been executed, the husband may then claim that the get was issued under the assumption that the financial claims had been resolved and that he never would have authorized the get had he known that the wife was going to advance further financial claims against him.[6] Such a claim could raise the specter of a get mut’eh (a get given under false assumptions) which may be invalid (see Yevamos 106a).[7] Rav Moshe Feinstein (Even Haezer 4:115) maintains that Rema’s guidance is not limited to a kesubah claim but applies to any outstanding financial claim as well.[8]
The most celebrated case that raised concerns of get mut’eh in rabbinic literature was the Get Mi-Vi’en (the Vienna Get) of the early seventeenth century. A young man from Poland had married a young woman from Vienna, and shortly after the wedding he became gravely ill. Because the couple did not yet have children and the husband’s death would trigger the need for chalitzah (to dissolve the bond (zikah) between the widow and her brother-in-law), the wife’s family persuaded the husband to divorce his wife, but they provided written and oral assurances that he could remarry her if he recovered. The husband did recover, but a fight ensued between him and his ex-wife’s family, and ultimately her family did not permit the remarriage.
The major decisors of that generation debated whether the family’s refusal to permit the remarriage, despite their initial assurances that they would, invalidated the get. Maharam Lublin (1558-1616) claimed that the get was invalid because the husband issued it under the representation and assumption that the family would support the remarriage if he recovered. Rav Yehoshua Falk (1555-1614), author of the Sefer Meiros Enayim (Sema), along with many other authorities of the generation argued that the get remained valid, as there was no explicit condition (tenai) attached to the get (see Pischei Teshuvah Even Haezer 134:1).
Following Rema in Seder Ha-get, the traditional approach of batei din was that a get should only be issued upon resolution of all end of marriage issues. Such a practice prevents a husband from casting post facto aspersions on a get. It blocks the husband from claiming after the divorce that had he known the eventual outcome of the financial litigation, he never would have given the get. Even though such a post facto claim would almost certainly be rejected by a beis din, it is preferable to forfend against the possibility of such claims altogether.
However, the concerns raised by Rema are substantially mitigated by our contemporary get procedure, such that there should be no concern of a get muteh even when the get is executed prior to the resolution of all financial claims. The standard script of the seder ha-get includes the husband’s declaration of bitul moda’os, nullifying any statement or action that could harm the validity of the get. Beyond that, our contemporary get procedure incorporates the Aruch Hashulchan’s recommendation (Sidur Get Hatemidi 1 and 141:132) that the beis din informs the parties, and has them affirm, that the get is being issued unconditionally and that any outstanding claims that they may have against each other have no bearing on the validity of the get.[9] Accordingly, even if the husband were to later claim that he gave the get under false pretenses, the halachic consensus is to dismiss the claim as without merit (see Maharam Alshich cited in Pischei Teshuva Seder Haget 36).[10]
Rabbi Gedalia Felder (Nachalas Zvi Vol. 2 pp. 462-3), a leading halachic authority of the last generation who also served as a chaver beis din of the Beth Din of America, addressed a case involving a couple who had settled all end of marriage issues in beis din and agreed to finalize their civil divorce. Upon completion of the civil divorce in Mexico, the husband moved to Israel and remarried there. The wife then initiated judicial proceedings in Canada (where she had moved) accusing her ex-husband of bigamy and demanding spousal support, as apparently Canadian law did not recognize the Mexican civil divorce. Rabbi Felder ruled, with the endorsement of Rav Moshe Feinstein (see Igros Moshe Even Haezer 3:37), that there was no concern about the validity of the get. His rationale was that the husband had not made any stipulation at the time of the get conditioning it on the wife not pursuing further judicial relief.[11]
While the batei din of the Israeli rabbinate prefer to handle financial issues in advance of a get, they agree that there is no fundamental objection to executing the get first. In fact, the rabbanut’s batei din may order the get to be executed prior to the resolution of financial matters if they expect that process to drag out.[12] Given the greater powers of enforcement available to batei din in Israel, they are generally less concerned of a delay leading to a situation that would make procuring a get more difficult.
In conclusion, where financial claims may be brought subsequent to the issuance of a get, a responsible beit din will ensure that the parties understand the unconditional nature of the get to avoid any future claim of get mut’eh. As there is always the chance that a cooperative party may turn uncooperative later on, it is both prudent and halachically sound to execute a get as soon as possible in a divorce proceeding.
NOTES
[1] Rabbi Michoel Zylberman is the Sgan Menahel (Associate Director) of the Beth Din of America.
The author would like to thank Rabbi Yona Reiss and Rabbi Itamar Rosensweig for their helpful comments.
[2] A couple must be separated before a get can be issued because following the get there is a prohibition of yichud, being secluded together, violation of which could create a de facto halachic remarriage and the couple would then require a second get. See Gittin 81a-b and Shulchan Aruch Even Haezer 119:7 and 149.
[3] A financial dispute between two Jews, including disputes arising from end of marriage claims, must, as a matter of Torah law, be adjudicated before a beis din and not a secular court. A beis din’s ruling on financial matters pertaining to a divorce, when governed by a binding arbitration agreement, is legally enforceable in the United States. In New Jersey, custody and other parenting matters arbitrated by a beis din may also be enforceable, although in most other states a beis din ruling on such matters may not be enforced. See Fawsy v. Fawsy, 199 N.J. 456 (2009).
[4] Rav Yosef Eliyahu Henkin writes (Edus L’israel, p. 144, in Volume I of his collected writings) that one who withholds a get in order to extract unwarranted monetary concessions or out of revenge is worse than a thief. In an article published in Hapardes Shevat 5715 (Year 29 Volume 5 page 20 et. seq.) Rav Henkin writes emphatically that there is no halachic nor civil law impediment to executing a get prior to the resolution of monetary claims or prior to the completion of the civil divorce.
[5] Seder Haget 81 in the name of Mahari Mintz (Seder Haget 123). See also Seder Haget of Maharam R’ Yosfesh 219.
[6] Mahri Mintz (ibid.) explains that the possibility of such a claim compromising the validity of a get emerges from a Mishnah in Gittin (46b). The Mishnah discusses a case of a man who divorces his wife because he discovers subsequent to the marriage that she is unable to bear children. In such a divorce the wife is not entitled to collect a kesubah. Subsequently she remarries a second husband, demonstrating that she was in fact capable of bearing children, and then demands that her first husband pay out his kesubah obligation to her. R. Yehuda rules that we counsel the woman not to demand her kesubah and we tell her –יפה שתיקותיך מדבוריך – you are better off staying quiet. Rashi and Tosafos explain that if the woman claims her kesubah, the husband may counter that had he known that he would have to pay out a kesubah he would not have divorced her in the first place. The advancement of such a claim that the get was given under false pretenses could cast aspersions on the validity of the get. (See also Rambam’s commentary on the Mishnah, Gittin 4:8.)
[7] The classic case of get mut’eh in the Gemara is a get given under an explicit condition which has not been fulfilled (see Rashi Yevamos 106 s.v. get mut’eh).
[8] R. Moshe Feinstein (Igros Moshe Even Haezer 3:37) acknowledges that in the time of the Gemara it was common practice to entertain claims pertaining to kesubah payments after the get had been executed, and that the Rema’s recommendation is merely a chumra (stringency).
[9] R. Chaim Jachter (Minhagei Siddur Gittin B’Eizor New York, Beis Yitzchak 26 (5754)) quotes R. Zalman Nechemia Goldberg as saying that while it is preferable for the mesader to notify the husband of both the fact that the get is being given unconditionally and the fact that subsequent financial claims will not bear on the validity of the get, the husband’s affirmative response to the standard question as to whether he is giving the get of his own free will without compulsion and unconditionally accomplishes, in principle, the same objective. See also Beis Meir (cited in Pischei Teshuvah 145:6) who recommends that in a case like the Get Mi’Vien the officiant make state explicitly that the parties’ failure to abide by agreed upon terms will not compromise the validity of the get.
[10] See R. Isaac HaLevi Herzog (Shu”t Heichal Yitzchak Even Haezer 2:48-49). R. Herzog addresses a case of a recalcitrant husband who finally agreed to give a get if his father-in-law would agree to donate 300 Israeli Lira to a certain institution. The father-in-law was only in a financial position to donate 50 IL and was going to collude with the institution to convey the appearance of having donated the full amount. While there are numerous factors that R. Herzog entertains in affirming the validity of a get given under these circumstances, the most critical one is that the husband did not articulate any condition at the time of the issuance of the get and he had made the standard declaration of bitul moda’os. As such, any claim that he gave the get only based on certain assumptions does not rise to the level of an umdena d’muchach–an objectively self-evident assessment– and is therefore rejected.
See R. Yaakov Etlinger, Binyan Zion 144, who writes that although he is reluctant to rule against the recommendation of Rema as a matter of course, in principle a get could be given prior to the resolution of financial matters, and that could be relied upon as circumstances warrant. He does suggest that in theory even a baseless claim on the part of a husband that a get was given under false pretenses could pose a concern in casting aspersions on the get.
[11] See, however, Igros Moshe Even Haezer 4:116, where Rav Moshe raises the possibility that a wife’s attempting to impede the issuance of a civil divorce subsequent to a get in contravention of an understanding between the parties, even where the understanding was not explicitly stated at the time of the get, could cause aspersions to be cast on the get. See R. Uriel Lavie (Shuras Hadin Vol. 2 p. 146 et. seq.) who argues that whether a giluy da’as (indication of intent) not formulated as an explicit condition could harm the validity of a get may depend on different understandings among later authorities about the position of Tosafos (Kesubos 74b s.v. mishum).
[12] See the rulings of the Beit Din Hagadol L’Irurim (Rabbinical Supreme Court of Appeals) printed in Shuras Hadin Vol. 7 p. 478 (1995 panel led by Chief Rabbi R. Mordechai Eliyahu); Shuras Hadin Vol. 17 p. 149 (2006 panel led by R. Shlomo Dichovsky); Shuras Hadin Vol. 17 p. 354 (2005 panel led by Chief Rabbi R. Shlomo Amar). In a November 2020 decision (1125604/8) of the Beit Din Hagadol, current Chief Rabbi R. Dovid Lau writes that the common practice of batei din in Israel is to insist on an immediate get when they expect the resolution of financial matters to drag on. R. Lau makes a similar point in another 2020 decision (1226302/1). See, however, a 2020 ruling of the Beit Din in Yerushalayim (1277137/2 panel led by R. Yitzchak Ushinsky) regarding a case in which the husband wanted to give a get immediately but the wife did not wish to receive it until all financial matters, which were being handled by the secular court system in Israel, were settled. The panel was not willing to order an immediate get and ruled that if in twelve months time the financial issues were not resolved, the party seeking relief could then request a get and the beis din would grant it. In another 2020 panel of the Beit Din HaGadol (1248559/1) the appeals court overruled a lower court ruling that had instructed a get to be given prior to resolving all financial matters and instead ruled that the finances must be resolved in advance of a get. See, also, a 2014 decision of the Beit Din Hagadol (880581/9), in which R. Lau entertains that there are situations in which a husband who has legitimate Jewish law claims against his wife and is acting in good faith may insist that a beis din address his claims as a prerequisite for giving a get.