When All Else Fails

Basic Principles

One of the primary principles in the Jewish divorce ethic is that divorce is a last resort. This means that divorce should become an option only after all possibilities for maintaining the marriage have been exhausted, and the efforts to save the marriage have become irreversibly futile. To divorce with no adequate reason is considered a breach of Jewish law (See Arukh HaShulhan, Even HaEzer, 119:5). This pertains mainly when the husband divorces his wife against her will, as was possible in pre-Rabbenu Gershom times. But the intent of this prohibition remains.

There is a second principle emanating from the first; if divorce becomes a necessity, based on the realities as projected in the first principle, then there is a prescribed Jewish way to do it. The way of Jewish divorce must be predicated on appreciation of the values that should be in operation throughout the divorce process and beyond, including decency and responsibleness.

Divorce Model

A useful model for divorcing properly is provided in the Talmud (Baba Mezia, 32b). Generally, one is obliged to help others in need. Thus, one who sees another struggling to place a load on an animal must rush to help. That obligation also applies to helping the other to unload. What if two situations present themselves simultaneously, one of loading and one of unloading? The rule is that one first helps with the unloading. The reasoning is self-evident. The animal with the load is already burdened, and must be helped. The animal to be loaded has no burden yet, and can wait.

However, all this changes in one significant instance. That is when the animal to be loaded belongs to an enemy, and the animal to be unloaded belongs to a friend. Here the rule is that one must first run to help one's enemy, even if it is for loading purposes. The reason: one must break down the hate syndrome and shatter the passion for hate. By helping the enemy, you turn that person into a friend.

This rule is a useful model for divorce. Each of the divorcing couple should break the hate pattern that normally surfaces during divorce. They should shatter the normal rules of divorcing protocol, and go out of the way to help each other, so that a potential enemy may even become a friend, or at least one with whom communication is civil.

Afflicting Forbidden

Jewish law forbids any individual from afflicting any other individual (Leviticus, 25:17).

Normally, the afflicting individual is one who perceives the self to be in a position of power, and thus takes advantage of a vulnerable individual. This type of affliction could pertain in a rich person/poor person dialectic, or in transactions involving widows or orphans (Exodus, 22:20-21). Others may see these unfortunate individuals as being powerless, and therefore will take advantage of them. Jewish law forbids this taking advantage, this afflicting other individuals.

One instance among many in which this type of afflicting is likely to occur is during the divorce process and beyond. The afflicting can be done in various ways. One of the more classical and well known is the use of lawyers to make life miserable for one's spouse. Although it is not always the case, usually the male is more likely to be the offending party. Afflicting may come by way of denial of access to the home, through changing the locks. It could be through failure to provide interim payments for support on time, or sometimes through failure to provide this altogether.

One of the more usual avenues of affliction is through denial of access to the children. In this type of situation, it is the wife who, if as per usual is granted custody, is the one more likely to use access as a means of afflicting the husband.

In general, when there is ill will, each one of the separating spouses uses available weapons to make life miserable for the partner. This is an act of spite, an act of revenge, sometimes an act of putting the other in his or her proper place for having started the down-cycle of negative behavior, or whatever other precipitating reason.

No Winners

There is a crucial observation that must be made with regard to this type of debilitating dialogue between divorcing husband and wife. It is that there are no winners. Any spouse who thinks that by fixing the other's wagon they are going to win the war is living in delusion. In a war of spite, in which each tries to outdo the other, each one becomes a loser.

The loss is in the fact that the behavior pattern is one of harming others, and hurting others. Human life must be lived in terms of positive contributions to the welfare of humankind. When one veers off onto a negative tangent, it affects the entirety of life.

Additionally, it is wise to contemplate the misery that is inflicted, via the boomerang effect, upon the individual who foists misery onto others. There may be some momentary satisfaction gained from having given the other one his or her comeuppance. But it will not take long before the other comes back for the next round leading with the right; ready, willing, and eager to inflict commensurate punishment.

Needless to say, in such a scenario, not only are the participants afflicted in that their behavior becomes subhuman, but the environment in which they live is likewise affected in an adverse way. The children who grow up in an atmosphere of bitter recrimination between the parents, even if they are not directly involved in the tug of war, will nevertheless be affected by the trauma of living in such an unhappy environment.

The memory of the unhappy childhood can play a prominent role in the children's decision concerning marriage. They may decide not to marry, and even if they do decide to marry, they may enter into marriage with trepidation, fear of failure, and lack of confidence. There are millions of children who have lived through divorce, and who carry that baggage into their future, for better or for worse.

Downward Spiral

The children, when they see directly the hurt inflicted by one of the parents upon the other, will react in one of two ways. They will either overtly take sides, and then get caught in the crossfire; or else they will keep their peace, but at the price of swallowing the bitter pill of resentment for who they perceive to be the offending spouse, or spouses. Either possibility bodes ill for the future.

And it does not end with the children. The other family members are invariably dragged into the conflict, with each one of the spiteful divorcing spouses enlisting the support, even demanding the support of their respective family sides.

Thus, the in-laws, who may have become friends, or who at least co-existed relatively well, may be dragged into the war, and forced to take sides. The divorcing spouses, in order to justify the correctness of their behavior, may force their parents, who would like to remain on good terms with the grandchildren, into condemning the other side and justifying their own questionable behavior.

For no excusable reason, a simple divorce can become an all-out war between the husband and wife, the grandparents, aunts and uncles, cousins, nieces and nephews, of the conflicting sides. This is the potential and tragic end result of the downward spiral of irresponsible behavior.

The Kindness Alternative

At the other end of the behavioral spectrum, kindness always brings better results than nastiness. One is much more likely to evoke good feelings from others by being nice to them, even if one may not feel like being nice. There is no hypocrisy in behaving nicely towards someone for whom you harbor bad feelings. In actuality, this is more than not merely non-hypocrisy; it is saintliness.

The strong individual is the one who over-comes innate desires (Talmud, Avot, 4:1). These innate desires travel the broad range of human instinctual behavior, and include the natural instinct to harm those you feel have done you a bad turn. But life is too short, and the stakes are too high, to allow oneself to fall into this trap. If, following divorce, it is harmony, co-existence, peace, and manageability that are the operative concerns, and should be the operative concerns, then the behavioral strategy will be much different, and the results will be much better.

Shallow Grounds

Ostensibly, much of what is being stated here seems naive. After all, couples usually divorce because they cannot get along with one another. A happy divorce seems to be a contradiction in terms, although "unfortunately," in contemporary times, it is not as rare an occurrence as one might assume. There are many divorces that transpire simply because both or one of the marital unit feel that they are not growing any more in the marriage, and they want to find themselves, or improve themselves. They do not hate their mate. They may even have warm feelings towards their mate, but they feel it is time to move on. However, this is shallow grounds for terminating a marriage, and for thereby causing upset and hurt to others. Others include the spouse who is the victim of this assertive surge of the self-realization need, the children who are deprived of a well-integrated home life, and the remainder of the family, who must walk on eggshells between the now-separated sides.

Can They Be Friends

In reality, the reasons for divorce should be severely restricted and limited. Divorce should become operative only in situations of obvious impossibility to live together. In most instances when living together is impossible, the likelihood is that the couple does not get along. If the couple does not get along, can one logically expect that they will do in divorce and beyond what they were not able to do in marriage, namely to get along?

Surprisingly, the answer is yes. It is possible for a couple who does not get along with each other when living together to be able to get along without each other, when the relationship is not one of closeness, but one of detached communication. The couple does not get along with each other, probably because there is bad chemistry between them. This results from the fact that as a couple they are expected to be harmonious, but this harmony has not materialized, or has turned sour.

The parameters of the relationship after the termination of marriage are different. At this point in time, the couple is no longer a unit. There is no pressure to be sensitive to one another, to pour out the heart to one another, to be alert to the needs and concerns of the other. The primary concern is that the relationship should be civil, decent, and without the desire to inflict harm.

Realizing the Change

It is vitally important for the couple to realize that once the reality of their having to be divorced settles in as being inevitable, the ground rules of the relationship change dramatically. This in itself is not easily achievable, but the awareness of this crucial difference changes the pressures and the expectations. It should therefore also change the fact that they did not heretofore get along well with each other.

It is not unusual for a couple who is divorcing because they did not get along well to suddenly find that they are getting along better. Surprising as it may seem, the reason for this is precisely because the nature of the relationship has changed. The demands are different, and therefore the reality changes commensurately.

The couple may then individually or collectively ask why they are now getting along well with each other; why could they not do so when they were married? But when they were married the situation was different, the ground rules were more demanding, the shared relationship was drastically deficient, and they could not manage. Now that they need not be husband and wife, and merely need to be friends, or even acquaintances who are able to speak to each other respectfully, matters can take a different, and hopefully positive, turn.

Making a Good Break

It is obvious that under normal circumstances, divorce should be much less contentious when there are no children involved. It is then much more likely that the couple could make a clean break. With children not at issue, what remains to be resolved are usually just property matters. These, once settled, are usually finished and removed from the arena of contention. The husband and wife may split the home or divide it up in another manner; they may agree to a once-and-for-all financial payment, and that will be it. If this is the agreement, then it will not take too much time for the fact of divorce to become a matter of history, and for each one of the couple to go on the way toward seeking other avenues of fulfillment.

Although this is not always the way it happens, the chances of it happening this way are greater when there are no children involved. When children are involved, the divorce is much more complicated. Custody becomes the key issue, child support becomes a matter of great concern, and visitation can be an explosive point of dispute. As well, concerns about the way the child will be raised can cause further bitter divisions. Precisely because the possibility of the divorce becoming exceedingly complicated when children are involved is more than likely, it becomes incumbent upon the divorcing husband and wife to resolve within themselves that they will be on their best behavior; if not merely because that is the right way to be, at the very least in order not to inflict irreparable harm on the children. Each undoubtedly says that the children are their primary concern, although quite often their behavior does not seem to correlate with such affirmation.

Taking the Lead

It would be worthwhile, if not imperative, that both husband and wife take the lead in assuming the responsibility for decency in the entire process. Both husband and wife are well advised to sit down together before the divorce proceedings are under way, to agree that whatever their disagreements may be, all discussions will be conducted with civility, mutual respect, and uncompromising concern for the welfare of the children.

Lip service is always given to these fundamental concerns in a divorce situation. If the divorce procedure does not move along as smoothly as it should, invariably each one of the spouses will blame the other for having been the cause of this downturn, or unfortunate unfolding scenario. But placing of blame never rights any wrongs, or changes the atmosphere. On the contrary, once one starts to point fingers, fingers get pointed back, and instead of a focus on the issues, the divorce becomes an ego game.

The only winners of this type of nonsense are the lawyers. And surely, neither of the marital partners would feel too happy with the knowledge that their recriminations have burned holes in their pockets, with that money falling directly into the laps of willing counselors to their opposing sides.

All this is resource money that could be better spent on the welfare of the children, rather than on senseless feuding which only puts matters into regression.

There are three partners involved in the bringing of any individual into this world. These partners are G-d, father and mother (Talmud, Kiddushin, 30b). In other words, each of these partners has a share in the entity that has come about through their union. This partnership does not terminate with divorce. Father and mother still retain their partnership, and their responsibility.

However, if they behave in an irresponsible manner, if their separation is characterized by fighting and ill will, then they create an atmosphere in which peace is not to be found. Where there is no peace, there is no G-d. The presence of peace is a G-dly quality which must be even more present when the husband and wife, as partners, will not be able to give their collective strengths to the child or children, and will have to suffice with giving their separate strengths to the children. They dare not, through their feuding, deprive the children of the third partner, namely G-d.

Encouraging Disrespect

Another important issue of Jewish ethical import in the divorce process deals with the obligation of the child to honor and respect parents. This obligation is not one-sided. It is true that the primary obligation is that the child behave respectfully toward the parents. However, the parents are forewarned against behaving in a way which will precipitate the child's disrespect for them (Shulhan Arukh, Yoreh De'ah, 249:19-20).

Thus, a parent is prohibited from hitting a child once the child reaches the age when conversational instruction is as effective a means of delivering a message as is a slap. Once a child reaches the age when it can be reasoned with, the parent who even just slaps such a child is sure to incur the child's wrath, and bring the child to a position where it will not respect, and may even pour forth venom at the parent.

The parent who behaves in such a manner transgresses the famous all-encompassing prohibition against placing a stumbling block in front of the blind (Leviticus, 19:14). Here the parent is placing a stumbling block in front of the unsuspecting child, through inciting the child to react disrespectfully towards the parent. Respect engenders respect; contempt and disrespect engender commensurate disrespect. Although the obligation to respect is primarily the child's, the parent has a significant role in this fulfillment, through the obligation to behave in a way which will elicit the child's respect.

This parental obligation pertains when the parents are living together as husband and wife, in a happy and harmonious home. It is equally true, and perhaps even more necessary to emphasize, when the parents are separating from one another, and the child or children are caught in the dramatic changeover, from family harmony to family division.

Precisely because parents who are splitting are likely to behave in a less than pleasant way, they must be aware that this unpleasantness can bring out the worst in the child. One repercussion may be that the child will lose respect for one or both of the parents, and therefore behave contemptuously and disrespectfully towards one or the other, or both. The worst is that the child may become a delinquent who sours on life in its entirety.

Encouraging Respect

Parents who handle a divorce responsibly are less likely to lose the affection of their children, or their respect. Therefore, parents who behave irresponsibly in the divorce process are likewise derelict not only in their human responsibilities towards each other, but also in their responsibility to assure, to whatever extent possible, that their children behave in a respectful manner towards the parents.

All these are issues of overriding concern when husband and wife have resolved to divorce. This resolution to divorce must be accompanied with a parallel resolve to divorce as mentschen, as human beings who behave with the utmost of respect for each other.

However difficult this may be, the rewards of such controlled, respectful behavior are significant enough for each of the couple to swallow pride. Likewise, the consequences of the failure to behave in a responsible manner are so great as to dictate that the couple must swallow that pride, and even to do that which they do not feel like doing, or may find distasteful; because nothing is more distasteful than bitterness in the family.