April 9, 2024
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International Agunah Day Presents Opportunity To Do Better on Issue of Get Abuse

March 21 presents a unique convergence of observances. We commemorate Ta’anit Esther, a fast day preceding the joyous Purim celebration. However, this date also marks International Agunah Day, highlighting the plight of women trapped in dead marriages due to their husbands’ withholding a get, the formal Jewish divorce.

This somber occasion creates a thought-provoking juxtaposition with the upcoming Purim festivities. The Talmud recounts how Esther, the biblical heroine of the Purim story, found herself in an unwanted marriage to King Achashverosh. This connection emphasizes the enduring struggle for women to have control over their destinies within marriage right in our own backyards.

The extent of “get abuse” in the Jewish community has recently been exposed in Jewish media outlets, with the plight of women like Malky Berkowitz, an agunah chained to a dead marriage by her recalcitrant husband for over four years, sparking outrage. The desperation is palpable, giving rise to some “unorthodox” solutions such as the prominent influencer, Flatbush Girl, calling for a controversial tactic — the “Mikvah Strike,” which urges Orthodox wives to withhold intimacy from their husbands until Berkowitz receives her get.

The debate surrounding the Mikvah Strike reflects the lack of viable solutions for agunot in the Jewish community and the lengths to which some are willing to go to address this scourge.

The tools that divorce attorneys often keep in their repertory for fair and equitable settlements under secular laws can frequently fall short in these situations as well. For example, mediation and other alternative dispute resolution options, often touted as a cost-effective solution in divorce cases, can be potentially harmful for victims of get abuse.

Imagine a scenario where a wife pleads for a get during mediation. The abuser, under the guise of compromise, might agree to the get under the condition of extracting other concessions, further tightening their control over the victim.

Understanding the abuser’s motivations in this type of scenario is key. Get refusal often resembles narcissistic behavior, where the victim is trapped in a cycle of concessions regardless of their efforts. What many in the legal community fail to understand is that refusing to grant a get is not just a bureaucratic hurdle, it is a form of coercive control, a serious form of domestic abuse. By withholding the get, a husband effectively imprisons his wife within the marriage. This manipulation isolates the victim and chips away at their autonomy. The threat of never being released from the marriage creates a constant state of fear and anxiety, forcing the victim to walk on eggshells to appease her abuser. This emotional manipulation and control are hallmarks of coercive control, making get refusal a tactic used to maintain power and dominance within a relationship. In such cases, mediation could, unwittingly, further empower the abuser.

This inherent power imbalance — when a wife is under threat that a get is or will be withheld — creates an untenable environment for mediation to succeed. Mediation can quickly become a platform for manipulation, further prejudicing an agunah in an already unequal dynamic.

In addition to rabbinic and potential legislative efforts to address get abuse in the Jewish community, in both the case of the agunah and the narcissist (often one in the same), family court systems, including attorneys, may be better served focusing on the following:

  1. Education for lawyers, judges, court staff and experts on the issues;
  2. Parsing through rhetoric to uncover that a husband is leveraging custody or financial issues. In those cases, the parties may benefit from the appointment of custody evaluators, guardians ad litem and other experts. This may disempower the offending husband by taking the decisions out of his hands;
  3. Penalties for using children as a bargaining chip in a divorce;
  4. Advance protection for the victimized wife, including the normalization of documents such as the Halachic prenup or regular prenuptial agreements;
  5. In the event of a divorce, compiling documents together, building a strong case and creating a strong legal team.

To be clear, I am not advocating for the parties to discount mediation in every situation where get refusal exists. Rather, any mediation efforts should be undertaken in the context of the above steps, and only after the playing field is leveled. A get refuser should never be rewarded with entry into a forum that perpetuates abuse and provides an outlet for his extortive demands. Perhaps that way, some progress can be made for victims of get abuse in family court and beyond.

Eliana T. Baer is a partner in the family law practice group of Fox Rothschild LLP, representing clients statewide in divorce, asset distribution, support, custody, domestic violence, premarital agreements, and appellate practice. Eliana has been selected to the Best Lawyers in America (2024), JD Supra’s Readers Choice Award for Family Law (2024), Super Lawyers-Rising Stars (2014-2024), New Leaders to the Bar by the New Jersey Law Journal (2018), “Top 10 Under 40” list by the National Academy of Family Law Attorneys (2017), and “Trailblazers” list in Divorce Law (2016).* Eliana appears in both civil and rabbinical courts. You can reach Eliana at (609) 895-3344 or [email protected].

 *Award methodology available at www.foxrothschild.com/eliana-baer/honors-awards.

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