GET REFUSAL: But what about the One Percent?

Get refusal: It’s a hot topic these days. A few weeks ago, I wrote an article arguing that there aren’t “two sides to the story” to get refusal because it is a form of domestic abuse. Once the article was posted, I received quite a mix of responses, ranging from “Wow, I never thought of it that way!” to “You are a crazy man-hater/femi-nazi/lunatic” (well, you win some, you lose some). But one comment that I do want to address is the middle-of-the-road response.

You know the one: “I agree with you that get refusal has only one side to the story for the most part. But what about the exceptions? You can’t tell me that there is NEVER a situation where get refusal is justified!”

Even if get refusal is wrong ninety-nine percent of the time, the reasoning goes, there is always that one percent. Now, any decent marital therapist will tell you the many dangers inherent in “always” or “never” statements. And in many areas of life, they are right. But I will argue that it is critical to have a clear cut “no exceptions” rule against get refusal.

REASON # 1: It’s Bad Policy

The first (and primary) reason why it’s a bad idea to carve out exceptions where we justify get refusal is that it’s bad policy. Why? Because everyone thinks that THEY are the exception.

It’s human nature to think that our own experiences are the worst, the most traumatic, ever. Nearly every phone call I have with a potential new case begins with “Trust me, this is the worst story you have ever heard.” Nearly every ex-spouse is described with the warning that “I’m telling you, he/she is the craziest person you have ever dealt with.” Ironically, many recalcitrant husbands begin their communications with ORA by explaining that they are big fans of our work, and they think get refusal is deplorable. It’s just that in their own situation. . . .well, their ex-wife is evil and their case is extreme, so the rules don’t apply to them.

We human beings are good at many things. But one thing we are not good at is being objective about our own emotional experiences as we live them. A litigant in a volatile divorce proceeding is not a good judge of how extreme/horrible/unjust their situation is, and thus cannot be trusted with the independent decision of whether or not to give a get. And that is exactly what is happening in ORA’s cases—people decide, according to the judge and jury in their own head, that they are exempt from the requirement to issue a get due to their particular situation. And the community, with limited information and a reliance on a “one percent” exception to the rule, allows that perversion of justice to continue.

REASON # 2: We Need to Respect the Process

As I discussed above, a litigant in an acrimonious divorce does not have the objectivity to determine how to handle the issue of the get. Therefore, they must turn to a fair and impartial third party. In the rare cases where a get may not be able to be received immediately (say the wife has kidnapped the children and escaped to Liberia, or something equally outlandish) then the get can be deposited with a fair and responsible beit din until the emergency is resolved. However, an individual cannot be the sole arbiter of what is appropriate in his or her case.

In my last article, I compared get refusal to beating one’s spouse—arguing that if we would never condone that behavior, surely we cannot condone get refusal either under any circumstances. This led some to respond that perhaps there is a “one percent” exception to that “no physical abuse” rule, as well—after all, can’t you beat your spouse in self-defense? The answer, quite simply, is no: the legal concept of self-defense is extremely limited and involves only using the force that is absolutely necessary to protect yourself until the emergency subsides, and no more. Any action beyond what is absolutely necessary is no longer self defense, but revenge. Similarly, even in the “one percent” of cases where we may be tempted to justify get refusal, there is only an extremely narrow way of using the get as self defense—by placing it in the hands of a responsible beit din only until the emergency subsides.

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The human mind is capable of extraordinary things: in its quest to rationalize our behavior, it can take our pain and anger and turn them into a holy war; a justification that the terrible sins we are committing are actually mitzvot. It is for this reason that we cannot allow a “one percent exception” to a community mandate against get refusal. Instead, anyone who thinks that they are in that “one percent” must submit to an impartial process to determine the way in which the get should be handled—but it should always be given in a timely and unconditional manner, out of the hands of the person who may be only too tempted to use it as a weapon.

For in the end, the ultimate Judge will weigh in on the choices we have made in this life, regardless of how we felt in the moment. And as a community, we need to stand in favor of justice and against oppression–one hundred percent of the time.

To help prevent get refusal from happening in the first place, please share ORA’s new video about the Halachic prenup at http://bit.ly/prenupvid.