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How Not To Divorce

How Not To Divorce

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Mutual Disadvantage

After having spelled out the basic conditions that should persist prior to divorce, and the methodology through which the divorce trans-action is actually carried out, it is appropriate to delineate how not to divorce, or what should be avoided in the process of finalizing the divorce.

The divorce arena should never be used as a battleground, with both husband and wife vying for victory against the other, to gain a conquest in divorce that will more-or-less compensate for the failure of the marriage. When each seeks to be a victor, both become losers.

It is generally the case that people marry with a view that each will gain from the mutual attachment. When the couple divorces, it should similarly be with the view that neither will gain at the expense of the other in the marital detachment. In other words, whereas marriage is a situation of mutual advantage, divorce should be perceived as a case of mutual disadvantage, mutual disadvantage which is shared equally.

Marital Rape

Advantage taking when divorce becomes inevitable is totally out of bounds. Thus, a husband who has made up his mind that the marriage is finished and he will soon be going to initiate divorce proceedings, cannot camouflage this from his wife, and then seduce her into conjugal union, or even into performing household duties. One would assume that a wife who is aware that her husband intends to divorce her will feel a sense of revulsion at engaging in marital relations. The husband who withholds his intentions from his wife, through his deceit, engages in what must appropriately be termed marital rape, or marital seduction. It is out of bounds, and considered by Jewish law as completely unacceptable behavior.

In other words, once the intention to divorce is made, neither one is allowed to take advantage of the other.

Double Loss

In a divorce which is bitter, and most have some bitterness, the likelihood is that each one of the marital partners will feel victimized by the behavior of the other. Each will then have a strong desire to contest whatever is the final arrangement between the two. No one wants to lose twice. The feeling that the marriage was a lost cause, and now in the divorce one has lost again, can be quite devastating. It is natural that each one of the marital partners should desire to snatch some saving grace from what was a bad situation. It may be natural, but it is certainly not advisable.

The couple is always best advised to look upon a marriage gone sour as a collective venture that went sour. The pointing of fingers, the blaming of others, does not help; in fact, it hinders.

Blaming Futile

As a general rule, human beings have a unique capacity to be quite perceptive when it comes to recognizing the faults of others, but are almost totally blind when it comes to seeing their own faults. All blemishes one is able to see, except one's own (variation on a statement in Talmud, Nega'im, 2:5).

One of the partners may have started the down cycle, but the other one finished. Who is to say that the one who initiated the problem is more guilty than the one who carried the problem to its ultimate, unfortunate end? How does one gauge whether the initiating of a problem, or the negative reaction thereto, comprises 25, 45, or 80 percent of the blame for the situation. Assessing relative blame is literally a no-win enterprise. At the same time, it is also an enterprise with no scientific precision attached to it. No one can know for certain, not even the parties involved. It is therefore best to avoid altogether the blaming of the other.

There are objective realities which legitimize either the husband or the wife having the right to demand the divorce. The Bet Din, in assessing the situation, will want to hear both sides of the story in order to get at the truth. However, they will certainly not encourage a finger-pointing debate. They will wisely deal mainly with the facts, and with who is responsible. But the recriminatory debate over who is to blame will hopefully be averted.

If the situation is untenable, and not correctable, trying to pinpoint blame is an exercise in futility. With the marital situation being hopeless, the best the couple can do is to make sure the divorce situation is not as hopeless and as frustrating as the marriage.

Successful Divorce

The couple should take the attitude that if their marriage failed for whatever reason or reasons, then at the very least they should try to make their divorce a success. Yes, it is possible to speak in terms of successful divorce.

What is a successful divorce? A successful divorce is a divorce in which both husband and wife detach from one another according to the basic prescriptions of Jewish law, and with a view towards terminating the marriage in as decent and humane a manner as possible. Bitter feelings may reside within the pit of each one's innards, but this does not mean that such bitterness must be translated into loud-mouthed invective. Recriminations may be harbored, but this does not mean that such feelings must be lambasted at each other.

It can be readily assumed that each one of the marital partners does have some negative feelings for the other spouse, no matter how amiable the divorce may be. Each one of the spouses should not live with the delusion that the overtly calm and friendly behavior of the other implies that the other is perfectly at ease with what is unfolding. On the contrary, each should assume that the other is uncomfortable and uneasy about what is happening. But in the divorce there is a shared uneasiness, a shared swallowing of pride, for the purpose of getting on with life in as manageable a form as is possible.

The Wrong Court

The accent in divorce should be not on contesting the divorce, but rather on peacefully dissolving the marriage. Outside Israel, there are outstanding matters that must be channeled through a civil court. But this does not mean that there must be contentious litigation between the ex-partners. Dragging the divorce procedure and its long-range implications, be they custodial or financial, into the courts, can involve a serious contravention of Jewish law. Should the court decide these matters in a way which is inconsistent with Jewish law, then the parties involved, or the party that has dragged this matter into the civil court, is guilty of a most serious breach. It will become clear in the ensuing chapters what are the precise financial and custodial guidelines according to Jewish law. The precise rules in this regard do not necessarily conform with the way a judge would see it. The imposing of secular categories on the post-divorce situation of the Jewish couple is, simply put, fundamentally wrong.

Each of the couple is well advised to approach a Rabbi or a religious adviser whom they trust, and who is aware of Jewish law, to advise them on how they should best approach the situation. The settlement they mutually agree to, in the best interests of all the parties involved, including the divorcing spouses and their offspring, is perfectly acceptable in civil law, and even in Jewish law. This is true provided that their agreement is not a flagrant violation of fundamental Jewish principles regarding the post-divorce reality.

Mediation

Both marital partners should mutually resolve between themselves to use this delicate balance of Rabbinic advice and legal incorporation of that legal advice as the basis for their marital separation. By so doing, each will have served to make the best of a bad situation. This will thus help to smooth the path for a future in which, though they may be separated, they are not totally disassociated, especially in situations when children are involved.

A settlement to which the couple agrees, and which is legally entrenched through the good office of lawyers who seek to resolve differences, rather than fatten their pockets by urging each of the couple to fight the other, is the best stratagem for divorce.

Thus, the couple, in choosing the path of mediation toward resolution rather than disputation and contestation, should choose lawyers with well-earned reputations for looking out for the best interests of the situation, rather than just merely the best interests of their own client. Usually, looking out for the best interests of the client translates into looking out for the best interests of the lawyer. This is a pitfall which must be avoided. The lawyers to choose are the ones with a long-range view of the future, with an understanding of the often tragic effects of bitter litigation, and the need to avoid such strife.

Rabbinic Malpractice

The couple should reject any advice which dissuades them from the necessity of arranging a get. There are some religious leaders who wrongly advise the couple that they do not need a get, and the couple think that this is legitimate advice simply because it was told to them by a Rabbi. There are Rabbis around who do purvey this type of nonsense. Such Rabbinic malpractice must be categorically condemned, and not accepted by the divorcing couple. The fact is that in Jewish law, remarrying without a get creates great problems for the couple who are marrying, and for their progeny. The relationship itself is considered illicit, and the children that are born from that relationship could well be illegitimate.

The intent is not to punish the child, but to drive home to the couple that an illicit relationship begets illicit results. What is produced by an illegitimate relationship is illegitimate. It should drive home with overwhelming force to the contemplating couple that the relationship itself is illegitimate. The relationship should not be entered into until it is legitimized via the finalizing of a get.

Serious Repercussions

It should be noted that a husband who remarries without the benefit of a get is not in as serious a position as a woman who remarries without same. The husband who remarries without cooperating in the get process has obviously done wrong. Any Rabbi who supervises such a marriage deserves to be categorically condemned and treated with contempt.

However, since in original Jewish law a man was allowed to have more than one wife at a time, one cannot impose illegitimacy on the children of such a relationship. It has already been pointed out that the right of the husband to have more than one wife at a time was essentially an advantage to the woman, but sometimes advantages do translate into disparities.

On the other hand, a woman who remarries without the benefit of a get from the previous marriage is in a much worse situation. Aside from the fact that marrying without a divorce is adultery, by the next husband and the getless wife, the child or children that are born from such a marriage are basically illegitimate, since the wife has not been legally divorced from her first husband. The woman in Jewish law can never have more than one husband at a time. The remarrying wife, who has no divorce, effectively has more than one husband at a time.

No one goes out of the way to uncover illegitimacy, or to bandy about the label of illegitimacy. Illegitimacy is a reality that is to be avoided at all costs. This means that both husband and wife who are divorcing must understand the gravity of their refusal to cooperate in the get process. The community as a whole should give zero tolerance to any efforts by husband or wife to obstruct the get process. Concomitantly, it should give zero tolerance to any religious leaders who likewise blunt the get process.

The Right Rabbinical Court

Husband and wife should seek out a Rabbinical Court which is authenticated insofar as Jewish divorce is concerned. It is wrong to avoid giving a get. It is likewise wrong to become involved with a bogus court when it comes to the delivery of a get. Buyer beware pertains to the choosing of the right advisers, lawyers, and Rabbis to guide the couple through the divorce process, as much as it does to any other serious consumer enterprises. A court which is not universally recognized should be avoided.

Additionally, and perhaps a bit more controversially, the couple should avoid having anything to do with a Rabbinical Court which, however well versed it may be in the nuances of Jewish law, treats the couple, and especially the woman, in a disrespectful, insensitive manner. Too many women have avoided or refused to cooperate in the granting of a get because of fears they harbor about this process. They have heard reports, perhaps somewhat inaccurate or exaggerated, but at times all too precise, about how callously the woman is handled by the supervising Bet Din when it comes to divorce.

There are enough Rabbinical courts of immaculate standing and acceptance who are sensitive to the unique situation of the woman, that one need not and should not go to a court which behaves otherwise. If courts which do not treat women respectfully are boycotted, they will then get the message. Or, if they still do not get the message, they will close down for lack of activity.

Rabbinical Courts which, however precise in their knowledge of the details of divorce, are inhumane when it comes to the personal encounter, misrepresent Judaism. They are counterproductive to the urgent need, in this age of increasing divorce, that the divorce procedure be as palatable, as full of understanding and empathy, as possible.

The Upright Way

Thus the general guideline, with regard to the divorce process, is that those involved, including the husband, the wife, the Rabbinical tribunal, and the lawyers, be of one mind in their resolve that the divorce be handled in the humane, delicate and sensitive manner that it by right ought to be.

To the contention that may be leveled at this suggestion; namely — how can one expect a divorce to go smoothly if the couple is bitter towards one another and would like to be vengeful, vindictive, and spiteful? — the theoretical answer is very simple. It is no trick to be nice when things are going well. The general overall Judaic obligation to do that which is upright and good (Deuteronomy, 6:18), to go in the way of goodness, is an ethical imperative, and a challenge that is truly fulfilled in trying times, in times when one would want to do the very opposite.

That is the theory. Is it too much to ask that this profound theory be carried out in practice?

It is useful to always keep in mind the biblical prohibition forbidding hating anyone (Leviticus, 19:17), and the further, less well-known regulation, not to be self-righteous, to think that everyone else is wrong and only you are right (see Sefer Haredim, p.91, to Deuteronomy, 9:5). By honestly incorporating these two principles, one will be well on the way towards actualizing the "upright and good" alternative in the divorce process.

Rabbi Reuven P. Bulka is a noted author, lecturer and Jewish activist. He is the rabbi of Congregation Machzikei Hadas in Ottawa, Ontario, Canada, and is the co-president of the Canadian Jewish Congress.
The Jewish Divorce Ethics is reprinted with the gracious permission of the author
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