The Ketubah

One of the more complicated matters in the finalization of divorce is the establishment of the precise obligations of support following divorce.

Generally, in situations when the divorce is by mutual consent, or in the absence of any flagrant abuse by the wife, such as adultery, the finalization of the divorce also includes the wife's receiving the ketubah payment.

Outside Israel, this is a paltry sum, two hundred zuz (coins), which for all intents and purposes does not amount to very much. These two hundred zuz range in value from less than one-hundred dollars to, at the most, a few thousand dollars. As protection for the wife, it does not make for a strong shield.

In Israel, the ketubah itself contains an extra clause, containing an undertaking by the husband that should the marriage terminate either by a divorce or by the husband's death, he will grant the wife a more significant amount, based of course on the husband's ability to pay.

Post-Divorce Financial Pinch

Essentially, the husband's obligation to his wife begins with marriage and terminates with divorce. Once divorced, the husband has no legal obligation to sustain his wife. They are separated, and both of them are on their own. In other words, divorce is a clean break.

But the situation is never so simple. Firstly, a woman left alone after divorce is in an extremely precarious position, and quite likely almost automatically becomes another statistic, living around the poverty level. On average, the wife's standard of living goes down 73% following divorce. On the other hand, the husband's living standard goes up 42%!

In the close-knit communities of yesteryear, with sensitivity to one another the prevailing norm and social services for the poor well entrenched, this may not have been so serious a matter. Every poor person was a communal priority, and the divorced woman was included in that category. Indeed, some historians have been able to gauge the level of divorce within Jewish communities of yesteryear from the number of women on the poverty rolls.

Today's Reality

However, the social network of yesterday is not nearly as strong today. Additionally, the rate of divorce is so high, with the resulting number of divorced single women so extraordinarily large, that social networks alone will not address the problem. As a responsible community, we dare not let the woman go from the trauma of divorce to the travails of poverty.

All this does not begin to take into account the other overwhelming factor in the post-divorce financial quagmire, namely child support. When children are involved, the financial obligations of the husband to his ex-wife do not automatically terminate. True, the payments are in the form of support for expenses incurred in raising the children and providing for their education, but there is nevertheless direct and often painful financial dealing between the former spouses.

Settlement in Israel

Concerning the actual settlement of financial demands between husband and wife, the situation in Israel is different from that in the golah (outside Israel). Once a couple approaches the Rabbinical Court for divorce in Israel, the Rabbinical Court has jurisdiction in all of the nuances of the divorce, including finances and custody. Usually, the parties involved, or their spokespersons, will try to hammer out an agreement, often with the help of the presiding Rabbi of the Rabbinical Court.

The fact that the wife cannot be divorced against her will leaves her in a stronger position to demand some form of continuing support after marriage terminates.

This support could come in the form of regular payments, or in the form of one lump sum. It is not unusual that this lump sum is handed over to the court, with instruction that it is to be given to the wife only following the conclusion of the Get procedure. This escrow arrangement would usually be the invoked procedure if there is ill-will between the couple, and mistrust that usually is an outgrowth of that ill-will.

Matrimonial Home

On occasion, the financial settlement prior to the finalization of the Get may involve some arrangement concerning the matrimonial home, or other property. In such instance, the deeds office clerk may actually be summoned to the Bet Din to arrange that transfer right then and there.

The question of the matrimonial home is a matter of great importance and is not easily resolved. Generally, the person who owns the home, in whose name it has been registered either for ownership or rental, has the right to stay, and the other one must leave. That is the case if this becomes a contentious matter between the divorcing couple. They can, by agreement, override this consideration, and effectively work out some arrangement which is mutually acceptable to them.

Registration, however, is not the exclusive criterion via which ownership of the matrimonial home or other property is decided. A wife who is able to show that she paid for the matrimonial home or other property, even though it is registered in the husband's name, would likely be given that property. The reverse, however, is not the case. The husband who claims that he has ownership of the matrimonial home, even though it is in the wife's name, is in a weaker position.

Since it is more usual for the husband to give gifts to his wife, the fact that it is in her name is considered as evidence of his having given this to her as a gift, which she would retain after the divorce. However, it is not usual for a wife to give a gift, especially of that magnitude, to her husband. The fact that it is registered in the husband's name is not proof that the wife has given it to him as a gift, even though she has paid a significant part of the cost, if not all of it.

Other Considerations

When there are equal claims, the general tendency of the court is to lean in favor of the woman, that she remain in the matrimonial home. This is especially the case if there are children involved, and she is granted custody. The Rabbinical Court may also impose payments, in the form of compensation to the wife, especially in instances when there is no compelling reason for the husband to demand the divorce. They cannot point to any insubordination on the part of the wife that legitimizes his request. The court will use its good offices to compensate the woman as a trade-off for her cooperating in the granting of the Get.

This is not an instance of blackmail or ransom. The court will not look favorably upon the woman using her right to refuse the Get as a weapon with which to extract exorbitant sums from the husband. This she has no right to do, neither legally nor ethically. However, her request for some compensation to enable her to keep her head above water, and to not have anxieties about making ends meet, and on the assumption that the husband can afford these payments, is another matter altogether. Here the court would argue on her behalf.

It is self-evident that the wife is entitled to take out of the marriage all that she brought into it, namely any property or other possessions. The same would apply to gifts that were given to her by her husband during the marriage, as well as money she earned by herself, which by common agreement she kept as her own under a separate account.

To Agree or Not to Agree

Thus, in general, the financial arrangements for the divorcing couple fall into two categories: either mutually agreed upon, or imposed by the Bet Din. Insofar as husband and wife alone are concerned, they can agree to any arrangement following divorce which is mutually acceptable. The Rabbinical Court will in all likelihood endorse such an arrangement. The primary exception to this would be if their arrangement obviously disadvantages the children.

When there is no agreement between the couple, the Rabbinical Court must use its good offices to effect some equitable solution. Generally, the person who wants the divorce the most is the one who will probably have to give a little. However, the major consideration in settling matters is the welfare of the divorcing couple.

Much thought is given to the financial positions of both the husband and the wife, and their future possibilities for earning a living, as well as other factors, including their health and additional responsibilities. Also, the court as a general rule assures that the wife does not leave empty-handed. Aside from any compensation, it will give to her the furniture and other items that are necessary to maintain a household, especially if she is granted custody of the child or children.

Primary Obligation

Custody considerations aside, there is a general halakhic (Judeo-legal) convention that it is the father who has the obligation to maintain the child or children. Even though the technical, legal obligation for this only exists until the age of six, there is a further obligation following that age level, but that "obligation" is considered an act of charity by the father. This obligation is enforced till the age of 15, but should ideally be carried out until the child becomes self-sufficient.

The classic extolment of one who "performs charity at all times" is Talmudically applied to one who sustains his children when they are small (Ketuvot, 50a). Ostensibly this is a type of charity which would seem to be more obligatory than the general charity obligations of a communal nature. One who does not respond to every mail order charity envelope that is sent may not deserve community condemnation. But surely a father who refuses to provide for his children would be frowned upon by the general community.

Sustenance as Charity

Parenthetically, the idea that sustaining children after the age of six is only in the realm of charity has a logic of its own, much though this idea may startle the uninformed. Consider the not infrequent instances when children get into fights with their parents, and their parents throw back at the children their lack of appreciation for all they have done for them. The children usually have at the ready a spontaneous retort, namely — "big deal, you had to do it anyway!"

Jewish law appropriately pulls the rug out from under the children in this regard. The parents can point out that after the age of six, the obligation to feed is an act of charity, rather than a strictly legal obligation. The children are thus told to appreciate that their parents were charitable with them, and they should therefore be charitable to their parents; if not with their finances, at least with their appreciation.


Both husband and wife, as they untangle, and wrestle with the complicated matter of financial arrangements, should disavow, to their own selves, any thought of making a killing on the deal, or really "sticking it" to the other. Each has the obligation to do the right thing for the other, at the same time as they make sure that the other does the right thing by them. The one usually follows the other.

Granted that the finances are a matter of contention in divorce, as much as finances can be a matter of contention within marriage. Nevertheless, the basic thrust should be towards assuring financial security, and not toward punishing the other by imposing excessive, unreasonable, and unattainable demands. This creates ill-will and resistance. And from a practical point of view, it is self-defeating. It is understood that there will be many situations in which one of the couple thinks his or her request is reasonable, but the other thinks it to be an exorbitant demand. Through the good offices of an objective third party (in Israel that objective third party being the Rabbinical Court), these matters can be adjudicated in an impartial, objective, and mutually fair way.

The system may have its problems, but its general thrust, one of fairness and equity, should be applauded. One tends to hear only the negative. It is safe to say that the public at large is not aware of many of the guiding principles that govern the approach of the Rabbinical Court in Israel. There are some bureaucratic problems. The Rabbinical Court is an officially recognized legal authority, and does get caught in the bureaucratic tangle that is inimical to the entrenched system. The system may move slowly, but the values of the system are salutary.

An Unused Option

The situation outside Israel is somewhat different than it is in Israel. The Jewish court outside Israel has no jurisdictional power to deal with divorce cases, aside from the purely religious area of the transmission of the Get. Unlike in Israel, where once the Rabbinical Court is approached, it has jurisdictional powers over all components of the divorce, outside Israel it is the secular courts which dictate what occurs in the divorce settlement. In most instances, a couple will approach the Rabbinical Court to finalize the Judaic side of the separation only after all other outstanding issues have been resolved, including the civil divorce, the financial payment, and the custody settlement. It is unfortunate that couples who divorce do not think of the Rabbinical Court outside Israel as anything more than a religious court for religious matters. The idea that Rabbis should be involved in the final disposition of the matrimonial property and of custodial matters is quite foreign to most Jews.

This is lamentable, since generally, Jewish life does not make this type of arbitrary division between the religious and the ordinary. It refuses to evince concern only for the "religious," but not for the ordinary. Quite the contrary, the ordinary everyday dialectic is of vital importance in Judaism. The ordinary is itself potentially holy. The wide expanse of halakhic (Judeo-legal) literature on financial settlement in matrimonial matters, as well as the discussion of custody issues, is ample testimony to this.

Rabbinical Court's Power

But what legal standing could a Rabbinic decision on these matters have in a civil court? Quite a significant standing, if in fact this was an agreement that had been arranged with the parties involved, and their respective lawyers. Civil courts gladly welcome mediated agreement between the parties, for which they must just give their stamp of approval. As the courts are overloaded, the disputation associated with divorce is the type of painful and sometimes prolonged litigation most judges would love to avoid.

The matter of going to a civil court to extract greater payment, when there is questionable entitlement to this according to Jewish law, is an ethical issue of great import. Arguably, anyone who goes to a secular court to extract from that court what one is not entitled to according to Jewish law may in fact be guilty of stealing, of theft under the camouflage of secular or civil law. This is categorically forbidden.

Obviously, no amount of haranguing about this will dissuade a member of the matrimonial union who is convinced that by going to a civil court he or she will get a much better deal than through mediation involving well-intentioned lawyers and Rabbis.

Losing By Winning

It must be emphasized again, at the risk of reaching argumentum ad nauseam, that neither of the couple should go to a lawyer whose main objective is to win, to make as much money for the client, which at the same time of course makes that much more for the lawyer. The prospect of winning with a hotshot lawyer is almost too inviting to resist. But the real question is — down the road who really wins?

By pummeling the other into submission through legal diatribe, you do win, but it is a pyrrhic victory. The victory comes at the price of burning all the bridges, of scorching the earth for future interaction, interaction which almost always remains if there are children involved.

Every spouse will have legitimate reason for pummeling the partner with a legal stick. There is no shortage of excuses to rationalize going into the bear pit, scratching and clawing for every single penny that may be available. But it creates a miserable atmosphere, an atmosphere in which the couple will be forced to live for the rest of their lives. It is an atmosphere which will likewise affect whatever new marriage is entered into, since the residue of bitterness will spill over, and even escalate. And of course, it is a bitter atmosphere which will adversely affect the children.

Then too, each one of the couple may swear up and down that he or she had the best of intentions to have an amicable settlement, but that it was the other one who ruined it all. The simple advice in the situation is — do not get caught in the blame game. Simply go about the business of doing the right thing in an ethically upright way.

Even if one gains a little bit less, in the end one will have gained in terms of peace of mind, in terms of being able to look at one's self in the mirror and say that you did the upright and proper thing. You and your posterity will be the better off for it. And that is worth the price.

Expanded Responsibilities

Creating situations outside Israel whereby the Rabbinical Court works in conjunction with well-intentioned and settlement-oriented rather than gouging-oriented lawyers is a major step forward. It also places additional pressure on the Rabbinical Court system, which will need more competent people to handle the anticipated increased load.

However, there are more and more people who are learning the intricacies of Jewish law who can serve on these Rabbinical Courts. With expanding demand for Rabbis, there should come an increasing supply. There is no question that given the will to address the increasing spate of divorces, a way can be found.

Until that way is found, the situation involving the divorcing couple will be less than ideal. It is not unusual for a recalcitrant spouse to use all the chips in the bargaining process for a Get to convince the other partner, usually but not exclusively the wife, to waive some claim that would have been justified in civil court.

Inexcusable Conduct

This bargaining is done through the victimized spouse being cajoled or otherwise convinced by the Bet Din that in the interests of finalizing the Get process, they should waive some financial consideration. Then there are some outlandish and unforgivable incidents wherein the recalcitrant husband, in order to become cooperative in the granting of the divorce, extorts exorbitant ransom money from the wife or her family. All too often, this is done with the tacit, if not overt approval of the Rabbinical Court. This type of behavior, in the process of fulfilling what is nothing less than a mitzvah, a biblical mandate, is unconscionable. It is particularly upsetting that precisely within the community which purports to observe G‑d's law with meticulousness, that such extortion is resorted to for the fulfillment of what is a religious duty, namely to grant a divorce.

This outrage cannot be tolerated. No Rabbinical Court should in any way be involved in this type of negotiation, thereby giving credibility to extortion as a means of obtaining a Get. Those same individuals who allow for this type of blackmail should instead weigh down quite heavily on the non-cooperating spouse, and resolutely warn that spouse about what consequences can be expected within the community for failure to cooperate.

As long as Rabbinical Courts outside Israel are perceived to be weak when it comes to taking up the cause of the oppressed, it will be well nigh impossible to suggest that Rabbis be used as mediators, or as consultants to mediation-oriented lawyers, for the purposes of amicably settling the financial issues of a divorce.

To Be Resolute

It is desirable that the couple who is divorcing seek the advice of the Rabbinical Court for the purposes of settling all outstanding issues, and for that settlement to be registered in the civil court via the lawyers. This will be achieved only if there is no equivocation concerning the basic and uncompromising adherence to fairness, equality, and compassion in the divorce process, free from threats and blackmail, or "green" mail.

There has been much talk of institutionalizing a pre-nuptial agreement, obligating the couple to obey the Bet Din with regard to the giving or accepting of the Get. Though there is much to be said about this, suffice it to mention that the couple is already so obliged, by virtue of their being Jewish, and by virtue of marrying according to the Law of Moses and Israel. A pre-nuptial agreement will help the civil court to enforce the Get procedure, but this itself is not without attendant problems. What is of undeniable importance is that the Rabbinical Courts stand up resolutely to their obligation to uphold the honor and dignity of the Torah, through unswerving adherence to Jewish law and ethics.

Making the Ketubah Potent

Additionally, the ketubah document, which is so crucial in Israel, should perhaps be reexamined, in terms of it becoming more than just a pro forma document with no real teeth.

As mentioned previously, in Israel there is an additional clause within the ketubah which addresses the specific situation of the husband and wife who are getting married. The undertaking written within the ketubah is for a settlement at the termination of marriage, significantly above what would normally accrue from the ketubah.

This same type of arrangement could easily be transferred to marriages outside Israel. This need not even entail a specific undertaking of a precise amount, or a lump sum that the husband agrees to pay the wife upon termination of the marriage.

The clause could simply read that "the husband also takes upon himself to provide appropriate support payments for the wife and children, should the marriage dissolve, as is prescribed by the Rabbinical Court mutually agreed to by the couple."

This type of protection within the ketubah will give the woman in marriage much greater confidence to entrust the Rabbinical Court with playing a key role in the final disposition of the marital property, and as well in adjudicating custodial arrangements.

Facing Reality

With divorce increasingly becoming a fact of life within the Jewish community, and unfortunately so, it is silly to deny this reality, and not face up to it with the full energies that the situation demands. By taking preemptive steps, we will be able to establish a new climate of appreciation for the Judaic way in divorce, which will be beneficial to the divorcing spouses, their progeny, the larger family, and the entire Jewish community. To do anything less would be to abdicate responsibility in this most serious, contentious, and explosively divisive issue.