Civil "Get Laws":

If any side does not want to willingly participate in the "get" procedure but fears that the judge of the civil court will enforce an existing law to coerce a "get" through either physical or financial punishment and this is the reason he agrees to give a "get", this "get" is invalid even if Beth Din asked the judge to do so, because the judge is not doing it for the sake of Beth Din but on the basis of the civil law.

Beth Din can be considered autonomous only if they are directly empowered to coerce either side to participate in the "get" procedure without requiring them to first take their case to civil court in order for the judge to see to it that a "get" is given.

A civil court cannot withhold visitation rights from either parent because of their refusal to participate in the "get" procedure even if the reason given is that someone who refuses to give a "get" is a person of bad character and will influence the children adversely. The reason is because visiting rights can be arranged with the supervision of a third party who can protect the children from bad influence.

If the husband demanded that his wife sign the agreement giving him full visitation rights without a third party in order that he will agree to give the "get", and after giving the "get" the mother had the agreement modified to allow the father to see the children by a third party because he is suspect of child abuse and kidnaping, the "get" remains valid. The reason being that the father is still retaining visitation rights that satisfies his primary demand to see his children.

The original N.Y. State "Get Law" sponsored by Agudath Israel in essence means that the wife may petition the court not to grant her husband a civil divorce until he gives her a "get". This coercion is permitted because he is being coerced not to violate the halachic prohibition of remarrying without divorcing his present wife. Furthermore, still being halachically and legally married he must halachically and legally pay full wife and family support. If due to this the husband decides to give a "get" and says he is giving it willingly, the "get" is valid. This law in theory should have solved almost all of these problems if the civil court system would enforce the wife and child support laws properly.

When lawyers arbitrate an out of the court settlement and stipulate that each side agree to a "get", if one side objects to this stipulation but his lawyer advises him to agree because otherwise it will go to court and he will lose much more money and therefore he or she agrees to a "get", this is not a coerced "get" providing that there are no laws that will penalize him for refusing a "get". There is a general law that does not refer to the "get" but that can be used to force him to give a "get" should he decide not to abide by his agreement. It is called contempt of court when someone refuses the judges orders to abide by his agreement. However, when he signs the agreement he is not compelled to do so out of fear of any "get" law. Furthermore we do not suspect that he may have changed his mind but that he decided to give the "get" out of fear of the contempt of court order, since it is not usual that a judge will apply a contempt order to a religious ceremony. If however it would be expected that the judge would hold him in contempt of court then we would prohibit adding the "get" clause. However in this case they may sign a different agreement to go for a "get" if the agreement is not legally binding and cannot be enforced by civil court.

The Canadian "Get Law" of March 1986, refuses to grant someone in need a lawyer, or wave his court fees if he refuses a "get". Therefore if the other side is suing and he cannot defend himself he stands to lose on visiting rights and equitable distribution. If due to knowledge of this law he decides to give a "get" this is a coerced "get" and is invalid.

The more general Canadian "Get Law" of August 1990 means to say that any side refusing to participate in the "get" procedure is considered in default of coming to court and stands to lose much on visiting rights and equitable distribution. If due to knowledge of this law he decides to give a "get" it is a coerced "get" and is invalid.

The second N.Y. State "Get Law" of June 1992 empowers the court to take the money that the one refusing the "get" is entitled to under the equitable distribution act and give it to the side demanding a "get". If due to knowledge of this law he changes his mind and agrees to a "get", it is a coerced "get" and is invalid even if Beth Din authorized the judge to act. The reason is as stated before: the judge is deciding this way because of the civil law and not because of the request of Beth Din.

A get law that is contrary to the "halacha" is not valid even as far as the law of the land is concerned. If the husband gained property through such a law he must return it to its owner unless he has a "halachic" ruling justifying his ownership. In such a case Beth Din does not award this property to the wife on the basis of the civil equitable distribution law. If the wife gained property through a non- valid get law she need not return it but may use it as support. When she is no longer entitled to support she must return the unused portion, if any. In the states or countries where there are "get" coercion laws that invalidate the "get", in order to proceed with the "get" the case must be completely removed from the civil or matrimonial court so that they are no longer under their coercion. However, he may still be giving the "get" out of fear of the other side bringing suit again against him in the civil court. Therefore as a general rule, but with some exceptions, the Beth Din will also require a waiting and separation period of a month or longer for him to think things over and decide on his own to give a "get" without fear of civil court. They must not take their case back to court after the "get" because of their promise to the Beth Din and so that people should not talk about them and say that the "get" is invalid because they tricked the Beth Din.

Even if the N.Y. State 1992 "Get Law" would have been worded to say that the money taken from the husband is awarded to the wife as compensation for loses incurred by not being able to remarry, this is still monetary coercion. The reason is that this lump sum is not under the category of family support which is paid in small weekly or monthly installments. It is also not a type of tangible damage claim that can be claimed through Beth Din. Therefore this is not considered a suit about another matter but it is like saying that if you do not give a "get" you will lose this money.

There are those who claim that practically there is no problem with the N.Y. State 1992 Get Law. Their reasoning is that when asked by the Beth Din (Rabbinical court) if they came to them because they are being coerced to come and they answer in the affirmative the Beth Din will give them a helping letter to the judge that if they rule according to the 1992 Get-Law they cannot issue a Get. At this point the judge will revoke his decision to apply the law.

This reasoning does not stand up in most real situations. First of all if the Beth Din demanded that he give her a Get and he refuses to follow their instructions the Beth Din will not help him any further in his endeavors by giving him a letter to get the courts off his back. He therefore may go to a different Beth Din and not divulge that he is being forced by the civil court and receive an invalid Get. In the case where Beth Din ruled that he is not obligated to give a Get they may grant him a letter to the judge. The judge may rule that he should look for a more lenient Beth Din, one that doesn't object to the Get-Law. At this point he may decide that he is being bothered too much and he will go to a different Beth Din without stating that he is being coerced. The judge may also rule according to those who interpret the Get-Law as not being intended to interfere with the religious Get process to force a Get. This explanation says that the law is an extension of factor thirteen of section 236 of the N.Y. State Domestic Relation Law and that a woman without a Get needs to be financially compensated for losses incurred because she cannot remarry. Therefore a note from the Beth Din stating that they cannot give a Get because of coercion would confirm to the judge that the woman needs more compensation and he will use the Get-Law as a factor in the equitable distribution of property. As stated before this interpretation is also considered forcing a Get indirectly. Assuming that the judge would voluntarily state that he will not invoke the 1992 Get- Law, the reason given is the letter from Beth Din. The normal reaction to this would be that the husband would continue to refuse a Get. If he comes to Beth Din and states that he realizes that he made a mistake and wants to amend his wrong doing by giving a Get, Beth Din could test him by asking him, "Why not come to us after you are completely finished with court?" The reason is that if by the end of the proceedings there still is no Get the judge can always retract and in the final decision on equitable distribution he will invoke the 1992 Get-Law without warning him again. We therefore suspect that the husband wants the Get now to appease the judge. There are two ways to give a Get in this case, as stated before. Either to transfer the entire case to the Beth Din or to give the Get after the entire case has been completed in the courts. As far as the second way is concerned, the Canadian Get- Law was worded to be used even after they settled with the civil divorce, monetary matters, and visitation rights. Therefore, it is not applicable in Canada. As far as the N.Y. State Get-Law is concerned, the matter has recently been complicated by the autumn 1994 decision of the judge of the Brooklyn family court, judge Rigler. His decision in the case of Schwartz vs. Schwartz, was to award the contested property of Mr. Schwartz to the former Mrs. Schwartz because Mr. Schwartz had refused her a "get" for several years. This decision was entered after the Rabbinical and civil divorce. Therefore, it is not enough that the divorces were completed. The monetary disputes and the visitation rights must be completed also. Furthermore, this decision will enforce the fear of the Get-Law since Mr. Schwartz was penalized for withholding the "get" after he finally did give the "get".

Even if a law would be passed demanding that the judge inform the husband of his legal rights, that he may on his own without the confirmation of anyone else state that the Get-Law is against his religious beliefs and therefore it cannot be a factor in the equitable distribution, the problem will not be solved. The problem is with the RCA's a/k/a Rabbinical Council of America's, June 1993 decision to endorse the 1992 N.Y. State Get-Law for other states as well. This decision against the scholars and Rabbinical courts has infinitely increased the halachic pitfalls of this law. Their masses are not learned in the laws of the Get and will interpret their decision to mean that there are no halachic problems with this law. Consequently when the judge informs him of his right to state that the law is against his religious beliefs he will not lie and will not object. He will thereafter go to a Beth Din for a Get in order to avoid financial loss due to the law. When asked if he is being coerced to come he will answer "n