In earlier times, the ketubah was meant to provide for the divorced wife and is, in fact, a pre-nup. But at some point in history it lost its efficacy and has been transformed into a liturgical document, especially among Ashkenazi Jews. (Some Sephardim negotiate the ketubah seriously and specify large sums in the event the man wants to divorce his wife – one or two million dollars rather than the proverbial “two hundred zuzim.”)
But today we are confronted by a terrible void – one that is exploited by many men who know they have no halachic obligation to support a divorced wife while the wife is bereft of any claims to marital property.
What can be done to remedy this dire state of affairs? As our Sages tell us in Pirkei Avot, “It is not your obligation to complete the task, but neither are you free to refrain from attempting to do so.”
We who are experienced attorneys must engage with the rabbinic courts to ensure that the procedural safeguards to which batei din are subject, both under New York State Rules of Arbitration and under halacha, are enforced.Among those safeguards: no ex-parte communications between parties orto’anim (rabbinic advocates) and the dayanim/ arbitrators; discovery of all financial matters must be produced or subpoenaed; evidence presented to judges is also to be provided to the other parties; witnesses are to be subject to cross-examination.
Additionally, we licensed attorneys must master a course of study in practical halacha so that we can effectively argue cases before rabbinic courts. Since the rabbinic courts generally act as courts of equity and base their decisions on peshara (compromise) rather than din (the strict letter of the law), our professional training and presence is especially warranted.A course of study is available in Israel to train to’anot (female advocates who are not lawyers) to appear before the rabbinic courts only. Yet there is no institution anywhere in the Diaspora that offers something similar.
There are many male and female attorneys who are conversant with Jewish texts and adept in the art of persuasion. Our clients who must submit to the jurisdiction of a bet din would be better served if we were also trained in the halachot governing divorce and bet din procedure.
As attorneys, we are held to a professional standard of ethics and are empowered to invoke the rule of law in safeguarding proper procedure before a bet din under the rules of arbitration. Will this solve the problem? No – but it will go a long way toward improving the professionalism of batei din, and that is an essential part of the solution.
Tze u’lmad – let us go and learn.