By Jacob Rubinstein, Esq.
We have seen the memes, we have surmised based on our mental narrative of society, and frankly, the statistics are substantiating the same: COVID-19 is hamstringing our most sacred of unions. I wish I could count how many times over the last few weeks I have heard, “You must be swamped.” The presupposition is that for divorce lawyers, it’s raining green.
Sure, my phones are forever ringing; however, often the desire to dissociate is intertwined with the newfound dearth of finances. Thus, when I share that divorce lawyers are not gratis, the conversation has about 60 seconds of life left.
Some remark, “You must be so excited, so much incoming business.” Such a notion mistakes my motivation for entering this field. I learned many years before I walked the path of family law that the Gemara (Gittin 90b) states that when one divorces his first wife, the Mizbeiach sheds tears.
My transition into this field was born from my observation of the system, a view from both inside and out. Consequently, I wanted my practice to minimize the financial burden on clients and give their children a fighting chance and ensure they are not used as pawns.
For those contemplating a split, the question is: how did they arrive here?
My educated guess is that few couples had magical, harmonious marriages that are dissolving now due to claustrophobia. Perhaps a bad analogy would be the impact the virus had on those with preexisting health issues.
Fundamentally, we presume more togetherness will break us. In secular literature, most of this audience is familiar with Thomas Haynes Bayly’s words, “Absence makes the heart grow fonder.” L’havdil, in Torah literature, Rav Shimshon Pincus shares the following. We recite the haftarah of “Dirshu Hashem b’himatzo” on most fasts, seeking Hashem when he is close. However, many of these fasts were established on account of tragedy or our collective misgivings.
He resolves this through an analogy to a mechitzah. In some circles, mechitzos have been pinned as chauvinistic. The stance is that it is unachievable for two genders to daven without a physical partition between them and appropriately reach the deepest recesses of our souls; after all, it is the avodah she’b’lev, the work of the heart. The partition allows us to share that moment, our concurrent spiritual apex that we may not experience any other way.
The value of boundaries is no secret. At this time, though, it has a luxury that has been taken back. So we look to the origins. The foundation of the words we share under the chuppah, “Harei at mekudeshes li,” requires nuanced interpretation. The shoresh, letters kuf daled shin, means set aside. For example, something “kadosh” means it’s designated for holy purposes. That’s similar to “kedeishah,” which means set aside for nefarious purpose.
So if you and I are designated for one another we should be able to manage when we are in closer quarters, because at some time we recognized there was no greater paradise. It is akin to those who disagree with tefillah b’tzibbur during this time; people need to learn to improvise, spiritually, emotionally, physically, and mentally.
To quote Rabbi Manis Friedman, love means that it’s our deepest desire to do anything for the other person, not what they offer us.
Quarantined or not, what is the Torah’s perspective on divorce? Here are some excerpts from Shulchan Aruch Even Haezer 119, the siman on divorce rationales:
- One should not end their first marriage (second marriage is totally different; check the laws in 119) unless they discovered something indecorous in their spouse, such as dishonesty or promiscuity.
- The Vilna Gaon on this encourages reconciliation.
- The Chelkas Mechokeik here opines that even if you receive testimony from only one witness, do not parachute into a life change; investigate the information.
- Remember there are halachos of Sotah, which may censure this marriage; still, the Chelkas Mechokeik says to examine.
- The Be’er Heitiv quotes a Rashdam, whose opinion is that you may not divorce to find a better spouse. However, you can rush to divorce if the person is the contentious type. He says further, in a first marriage, even if one finds their spouse repulsive, they should aim toward coming together.
I am not a posek or a therapist; my words above are strictly quotations, not legal, marital, or halachic advice. Your rav may hold that none of the above applies l’ma’aseh. However, the idea that poskim, our primary source of halachah, not mussar, encourage working together, is something to think about.
Even the law, l’havdil, discourages rash decisions. In New York, you must be married for six months, and other states demand the couple be separated for a year, prior to proceedings.
One question I would anticipate based on the above: I understand abiding by this message in your practice or sharing it with potential clients; however, why would you publicize this?” In the words of the Chovos HaLevavos in Sha’ar HaBitachon, a believer does not concern himself with the loss of trade secrets. Translated here, there is no reason for me to worry that withholding this information will make me lose parnassah I was predestined for on Rosh Hashanah.
Nevertheless, many sources in halachah protect intellectual property — incidentally, the other half of my practice. Though hashkafically we decide for ourselves, it is not dichotomous to protect a client legally and within the confines of halachah.
Some may read the above and infer that my professional approach is a meek one. However, it is clear from Choshen Mishpat that so long as you follow an honest path, you are obliged to do whatever necessary to be elite in your field.
If those who guide you are of the opinion that due to accelerations from COVID-19, divorce is ideal, what must you consider? There are many, but here I will highlight just one thought. Judges are not asinine. Recently, there was a case in the matter of Jennifer R. v. Lauren B., 2020 NY Slip Op 20094; the subject was a custody dispute of a same-sex couple.
Jennifer, the mother, and Lauren, her wife, divorced in 2013. Together they became the legal parents of Jennifer’s child one year after their marriage. The court awarded them joint custody as part of the divorce. Lauren had to pay for child support. The mother did her best to legally derive permission that would permit her to relocate to New Jersey, while the ex-wife was living in Brooklyn.
Apart from this, the mother made at least three attempts to keep her child in New Jersey, but all were dismissed. In March 2020, the mother resorted to COVID-19 as a justification for not bringing the child to Brooklyn, as Brooklyn was a “hotspot” for coronavirus and she feared for her child’s safety.
The mother refused to turn over the child, and her ex filed a police report. As New Jersey is not much behind Brooklyn in terms of total cases, and considering the mom’s flouting court orders and the child’s resulting trauma, the court denied the mother’s Order to Show Cause.
The message here is basic. Judges were not born yesterday and are fierce advocates for the interpretation of “the best interests of the child.” If something did not work prior to the pandemic, do not use a global crisis to support your case. COVID can be a justification for some matters, but if used manipulatively, you will be worse off.
In every divorce, emotions run wild. It is natural to latch onto an excuse, but beyond “Tamim tihyeh im Hashem Elokecha,” judges have seen most machinations before, and this one will be no different.
Few things tug at us more than our children and finances, but at the end of the day, the high road is a beautiful place with little traffic. Your children are the apple of your eye, not pawns. Divorce settlements state not to slander the other spouse, as it does not help anyone to do so, and typically that attitude leads to costly litigation.
Consider the new birth that comes with closing an old chapter, and, more importantly, think of the future of your children. If you truly need to divorce, be real, be a mensch, and there is no doubt G-d will give you all that you need. As we say every Shabbos morning, “Zeh ani karah v’Hashem shamea u’mikol tzarosav hoshio — a lowly man called, and Hashem listened and delivered him from all his troubles.”
Jacob Rubinstein, Esq. is the founder and managing partner of Rubinstein & Associates, PLLC. He specializes in family and intellectual property law.