Divorce Etiquette

An interview with Edythe Held Mencher and Marsha Elser

How prevalent is divorce within the Jewish community, and how does the rate compare with divorce in the general population?

Rabbi Edythe Held Mencher (Union for Reform Judaism's Faculty for Sacred Community, clinical social work psychotherapist): The divorce rate in the Jewish community is the same as in the general population, about 50%.

Marsha Elser (board certified marital and family lawyer in Florida, former president of Temple Israel of Greater Miami): Overall that is what I've found, although one study by the Ontario Consultants on Religious Tolerance indicates that divorce amongst Jewish couples is slightly higher than among non-Jews.

Why might the divorce rate be higher for Jewish couples?

Edie: One possible explanation is that even though Judaism strongly encourages enduring family ties, it has never forbidden divorce.

The rabbis ruled that when a man marries, he must give his wife a ketubah (marital contract) in which he guarantees a substantial financial settlement if he were ever to divorce her. So while the rabbis acknowledged the possibility of divorce, even on the day of the wedding, they also tried to discourage it and protect wives from abandonment by making it clear that the wife would have to be supported financially by her husband.

And while some aspects of Jewish marital law were sexist - for example, it was grounds for divorce if a woman did not bear her husband children (the assumption being that she was barren, rather than he was infertile) and women could not initiate divorce - overall, Judaism allowed many grounds for divorce that favored the needs of the wife. If, for example, a wife was repulsed by her husband, he could be compelled to divorce her because she was not obligated to have sexual relations against his/her will (Maimonides, Mishneh Torah Hilkhot Ishut 14:8). Still, in reality, few women would or could avail themselves of such a remedy in a culture that largely frowned upon divorce and in which considerable stigma was attached to being a divorced woman.

Marsha: As a divorce lawyer, I have never seen a ketubah enforced in a secular court. So while it may be a recognition that divorce is a possibility, it is not a document that, in a secular situation, can give any comfort to the spouse.

Edie: That's a good point. On the other hand, while the ketubah does not have legal standing, many couples want to continue the tradition in an egalitarian way, signing a ketubah that affirms the promises they make to one another, what each brings to the marriage, and what this lifetime commitment means to them. While this kind of ketubah may not offer financial protection, it expresses the contractual aspects to the relationship, and implies the possibility of divorce should either one or both parties not live up to its provisions.

You noted that although divorce is accepted in Judaism, there has been a stigma attached to being divorced. Why?

Edie: Divorce goes hand-in-hand with two stigmas in the Jewish community: the failure to sustain family and something being not quite right with the family, perhaps a cheating spouse, mental illness, or a gambling problem. While there is certainly less stigma around divorce today than in the past, the notion still exists within the Jewish community that a successful person by definition is highly educated, capable of self support, and able to maintain a functioning family.

Marsha: I believe that the stigma in the Reform community is rapidly diminishing in light of the increased numbers of divorced families. When divorce happens to people we all know, we look at them in a more compassionate way.

Do you believe a life challenge such as divorce brings people closer or further away from their religious communities?

Edie: It varies; people have different experiences. If the husband and the wife have been active in a congregation, for example, remaining in the same synagogue may not prove comfortable for one or both of them, regardless of how sensitive that congregational community may be. If these individuals are lucky enough to live in a community with another liberal synagogue, both synagogues could play a vital role by facilitating a move by one member of the couple into the new congregation that can be his/her spiritual home.

Also, since married people tend to populate congregations and many synagogues tend to cater to families with young children, both members of the divorced couple are likely to feel less welcome because they no longer fit the norm. In addition, for some, seeing all the married couples is a painful reminder of their own changed status. Their children may also feel less at home, simply because synagogue language tends to be family-centered, e.g. "a family event," "come with your parents," etc.

Most importantly, there are steps Jewish communities can take to help divorced families experience the community as both an oasis and a path to a new life.

How can congregations address a divorced person's feeling of being outside the norm?

Edie: One way is to post photographs on their websites and in their lobbies that reflect the diversity of family situations—divorced, single parent, grandparents raising children, interracial, gay, lesbian, etc. Another way is changing how a synagogue leader introduces a family event. He or she might say, "Come by yourself, bring a friend, come with a partner, come with your family, bring your grandchild, bring your niece"—language that suggests that the definition of a family event encompasses your bringing anyone who feels like close family to you.

Marsha: It seems to me that today's kids are less sensitive to such statements as "bring your mom and dad," because there are so many divided families and because even when a couple is married, quite often only one of the parents will come to the event.

However, I see another problem—children being caught in the middle of their parents' disagreements about religious upbringing. When one parent has Monday, Wednesday, and Friday and the other parent has Tuesday, Thursday, and Saturday, and religious school is Monday, Tuesday, Wednesday, and Thursday, how do you make one parent do what the other parent has set up if they do not agree about religious education, bar or bat mitzvah, and the like? Complicating the matter, sometimes disagreements are really about control issues. Rather than parents looking at religious activities from the perspective of their child's best interests, they may take opposing positions in an attempt to exert control.

Have there been any legal precedents regarding children of divorce partaking in religious activities?

Marsha: Oh yes, several cases around the U.S. have addressed this. The issues are complicated because courts must deal with both the First Amendment rights of the parents and the best interests of the child. There is no national rule or standard, and decisions may vary from state to state. Also, much depends upon the nature of the custody awarded—whether sole custody has been granted to one parent, or joint custody (and joint decision-making) to both parents. But, generally speaking, when it concerns children's participation in religious activities, courts will not interfere with a parent's First Amendment rights to raise the child in his or her religion—unless the other parent can prove that those religious activities cause actual harm to the child.

In the case of Pater v. Pater (1992), the mother, who had received sole custody of the children and was raising them as Jehovah's Witnesses, asked the court to prohibit the father from exposing the children to his religion, Catholicism. Ultimately, the Ohio Supreme Court ruled in favor of the father, saying that a parent cannot be prevented from teaching his religion to his child unless it is proven that doing so would mentally or physically endanger the child.

In Munoz v. Munoz (1971), Washington State's highest court ruled that exposing children to two different religions (Mormon and Catholic) is not harmful in and of itself, and therefore does not justify restricting a parent's religious activities when he or she is accompanied by the child.

The issue of exposing children of divorce to Judaism was addressed in Zummo v. Zummo (1990), in which the court required a Catholic father to take the children to Jewish services (the mother's religion) while also allowing him to bring the children to Catholic services. The court believed that, because the couple shared joint legal custody, each parent had the right to instill religious beliefs in his/her children.

Court cases can vary based upon jurisdiction, facts, and type of custody. The cases I've mentioned are just a few examples. Many more can be found in law books or reviewed on websites such as this piece from Nolo.com on child custody and religion.

Should synagogues initiate contact with members upon hearing of a marital separation?

Edie: Yes, but only with the greatest tact, because most people value their privacy as much as they want support. Some may be relieved by the ending of the marriage because of incompatibility; some may have experienced violence or spousal addiction; some may feel terribly hurt and rejected; some may long to be with a new partner. Most people do not want their entire community and all their kids' friends to know what happened, and they're entitled to that privacy.

The challenge is to reach out without suggesting that the person is now in need of pity, the equivalent of saying to a person with a serious disease, "I heard about your dreadful diagnosis." Most people are not going to respond well to that. Even if the intention is positive, it may come across as intrusive, judgmental, or condescending.

The best approach, I believe, is to say simply, "I know this can be a tough period for any of us. Many people have found Judaism and our community helpful through a time of change. I'd be happy to talk if you'd like and hope you let me/us know if there is anything you or your family would find helpful now or in the future." Be prepared to share specific resources, such as a support group, if the person seems responsive.

Marsha: I think it's also really important for a member of the clergy who has had a relationship with the family to step in and say, "I know you're having family problems. How can I help you?" Just the kind voice, the touch, can make such a difference to a person in emotional need.

Edie: I agree that's the best way in circumstances where the rabbi has had a connection with the family. But when the family does not have this relationship, when a rabbi calls to say, "I understand your family is going through a hard time," some people may feel deeply pleased and others may take that as "Who told you and what's it your business?" I would certainly caution against lay leaders making these calls, because for some recipients that can feel like gossip.

Another area where congregations need to be sensitive is the question of dues. Divorce can entail financial changes and sometimes leads to hardship for many families, even those in affluent communities, because living expenses are so high. If a divorced spouse chooses to stay in that community, which most spouses do, paying synagogue dues can become very difficult to sustain. I've found that divorced women, especially, feel terrified of becoming impoverished. And then synagogues have an interesting dilemma, because asking a divorced person to submit to dues review can feel like a continuation of the humiliation of divorce negotiation and litigation. He or she may also not want to reveal financials for fear of an ex spouse wanting more, of seeming impoverished, or of anyone else trying to dictate how he or she should spend money. Rather than having to deal with all this, many people will just leave the synagogue.

Because of such situations - and others not based on divorce - many congregations are considering alternate dues structures allowing members to pay what they feel they can. Psychologically as well as financially, this communicates a message that a divorced spouse needs to hear: "You belong to this community, whether you can pay or not."

In the best of all worlds, congregations could say to all new members: "It's our policy that when you are going through a difficult change because of unemployment, career move, unexpected expenses, marital separation, whatever the reason, that you need not provide us with supportive documentation; just know that we're here to help you through until you feel able to resume."

Marsha: I agree with you 100%. When I was temple president a number of years ago, our temple dues policy reflected my belief that you can't force people to spend more money than they're willing to. Take what they're able to give, give them the benefit of the doubt, and don't embarrass them.

Author Barbara K. Bundt Bond believes, "When a marriage ends, the synagogue community can in many ways become the other parent." Do you agree?

Edie: I would put it a little bit differently and say that God can be the other parent and the synagogue would be another home, in the sense of extended family. I say this because if the divorced parent expects that the synagogue can fulfill all those roles, it can lead to disappointment. I don't think any community institution can truly replace a parent, but faith and being part of a caring congregation can help people who harbor guilt about their situation and/or feel wounded to recognize that they belong to a community where there is unconditional love and acceptance and a chance for teshuvah (return). To be able to say, "I am an accepted member of the Jewish people and of this community no matter what" is a very important message.

A big area of tension for divorced families can be the upcoming bar/bat mitzvah of the couple's child. Questions like these arise: "Are both parents equally committed to the occasion? Are the expenses being shared? Is one member of the couple dominating the event?" How is it best for congregations and families to navigate in this often charged terrain?

Edie: Note that all of those issues can arise in still-married couples, too. And it can be quite challenging to ask people who are divorced to compromise on the very issues that possibly led to the divorce.

I've seen situations where a mother or father is so embittered by the spouse's new relationship or the other person's failure to provide adequate financial support, he or she says, "I don't want to give an aliyah to my spouse or my former in-laws." I have seen families hold two bar/bat mitzvah receptions so as not to have to invite one another. I attended one reception where the two former father-in-laws got into a fist fight.

To try to avoid such situations, the most important - and most difficult - thing is to convince divorced parents that the child wants the love and approval of each parent, no matter how disappointed the parents may be in one another. The best outcome, of course, is when parents come to recognize bar/bat mitzvah as a moment when both mom and dad can put aside their marital discontents and speak with pride about their child and heritage.

At the same time, I believe we need to quit clinging to a b'nai mitzvah ideal that was built for intact families and stop perpetuating the idea that divorced families have to fit into norms not set up for them. In cases when one partner did not remarry and the other did, or whenever parents are uncomfortable standing together, let's be flexible and sensitive enough not to call up all the parents at the same time for an aliyah while the entire congregation is watching the expressions on their faces—to me that seems cruel. Instead, why not call each parent to the bimah separately to bestow his/her congratulations and wishes to the bat/bat mitzvah? Or, have one aliyah for the mother and her parents, and another aliyah for the father and his new wife.

Marsha: In my 35 years of practicing law, I too have seen people celebrate bar mitzvahs on two different dates in two different places; I have seen fights; I have seen one person refuse to pay anything and the other pay everything. Once people are divorced, there are only two issues: money and the kids. It's incredible how cruel people can be.

This is the area where I believe clergy, counselors, and lawyers can make the biggest contribution—encouraging parents at the time of divorce to think first about the children and include the other parent, because that parent is also part of that child's life. Don't get angry and hold back on sharing the school pictures or a birthday party invitation. If your son got an award in school, call up dad and say, "He's getting an award. Would you like to go? It would be nice if we both showed up." It's respectful of your ex's position as father or mother and teaches the child that "mom and dad are still together in their support of you"—a really important notion that can only be taught to a child by a parent's actions. These are the everyday things that create the roadmap to how the former couple will treat each other in the future.

My practice is to try to counsel divorced individuals to be inclusive at their children's celebrations as a means of moving on with their lives. When moms and dads get on the bimah and congratulate their children, each other, and even the other spouses in front of the whole congregation, what a way to demonstrate moving forward in life. And how wonderful it is for the kids to have mom and dad with them on the bimah, just as the parents would have been in an intact marriage. That's the ideal to which we can aspire.

Are there other holiday and lifecycle rituals that are particularly difficult for divorced families to handle?

Marsha: Weddings come to mind, because both sides have to participate: Who is responsible for the ceremony? Whose rabbi is going to conduct the ceremony? Who will be invited and excluded?

Edie: The High Holy Days and Passover can also be painful times. Children are sometimes torn between who they should go with to services and to seders. Often a divorced spouse who has not remarried is included in family celebrations, and that is good. But at times it can be tricky, such as when the wife's family is more happy to have her ex-husband at the seder than she is.

Marsha: Because of these and other complications, it's important to write up at the time of divorce how all the holidays will be handled on the visitation schedule. The kids will know: The first night of Passover I'm going to be with dad's family this year, and the second night I'm going to be with mom's family, and then we'll alternate the following year. This way there are no unresolved questions which leave the children stuck in the middle amidst turmoil.

Edie: Most U.S. states have laws and guidelines for the children of divorced families, and some states, such as Indiana, Utah, and West Virginia, provide calendars. For example, in Indiana and Michigan on even years children will go to one parent on Christmas Eve and on odd years to the other. These rules facilitate adherence by families. It is much easier to have a universal rule that families work around than to address each similar situation anew.

How can divorced people use holidays to help them move forward?

Edie: The High Holidays offer us an opportunity to think of ourselves not only as victims of injustices perpetrated by ex-spouses or partners, but as participants in situations which we might have handled differently and intend to do so going forward.

Clergy can also encourage people to forgive and move on by acknowledging that we are harmed and kept bound to the past when we carry bitterness within us. The theme of the High Holidays is forgiveness, and indeed it is a central tenet of all of our liturgy to try to remember the good and give the benefit of the doubt even when we are aware of past betrayals. In this context, clergy can also specifically address the hurts that come with the end of relationships - not receiving or paying child support, speaking negatively about an ex-spouse or partner to children, etc. Just as our clergy speak of missing the mark within ongoing marriages, they can speak of divorced parents missing the mark in relating to one another.

In addition, when we read biblical texts on the holidays, we see that the predicaments and feelings we struggle with have been experienced by many others before us. Take, for example, the blended family of Sarah and Abraham and Isaac and Ishmael and Hagar, where half-siblings and two mothers and a father wrestle with competition, hurt, and love. Although such a text may not present a simple solution to the pain attendant in such situations, it offers us the much needed reminder that no modern family is without troubles, lest we think that the seemingly serene families surrounding us are more blessed and perfect than ours.

Marsha: I would like to see more pro-activity. Perhaps a rabbi could ask to speak to the divorced couple together or individually, and say something to the effect of, "You're no longer husband and wife, but you're still mom and dad. For the children, can you take a step forward this year so that mom and dad can be together on one or two occasions for a service or a holiday event?"

In "Divorce as Bereavement: Where Were My Cakes and Casseroles?" (ritualwell.org), Sandra Winicur speaks of divorced individuals as experiencing "the lack of permission to grieve." Do you agree?

Edie: I think that's true. The most difficult mourning to do is what's often called "complicated grief," when we are highly ambivalent about someone. A person who asked for the divorce may still be grieving what she or he hoped to have had in that relationship, the status of being married, the feeling of family togetherness, the scaling down of income and lifestyle, or even the loss of the other person—for whom she or he still has loving feelings but who isn't the right partner.

Congregations can help here by having an end-of-relationship group, a support group of people who have just ended a significant relationship or friendship. And they can speak often from the bimah about how many of us are grieving dashed hopes because of changes in our lives.

Marsha: Support groups can be important in helping people get through the grieving process because when a marriage ends, it doesn't only shatter the relationship between the spouses, but everything—the "you and me against the world," the Saturday morning tennis games, the Sunday evening dinner at the local diner. Even though people who are divorcing think, "This is what I want," once they're really on their own with half the assets and the children to look after, it isn't as rosy.

But, that said, when the Reform congregations in my area tried to establish this kind of support group, even our large congregations got only five people showing up.

Edie: That may be because many Jews don't like to talk among people who know them. It's usually better to hold such groups in a non-synagogue setting, and to expand the group to include other congregations, even interfaith organizations. I know we're often loath to do that because we want people to make new Jewish marriages, but most people are happier to be part of a more anonymous group.

Is there anything else that can be or is being done to help divorced couples?

Marsha: In recent years state custody laws have changed significantly, for the better. It used to be that one parent would have the children and the other would have visitation rights. Today, what's more common is joint custody, where both parents are joint custodians and their access or time-sharing is written up in the settlement agreement. As part of that agreement, a specified person is no longer the sole decision-maker about how and with whom their children celebrate the holidays.

Frankly, when the whole concept of joint or shared custody was being floated around in my state, I was concerned about it. I thought that one parent had to be in control. But I've come to see that it's led to an overall improvement in how divorced couples relate to one another. That's because joint custody has forced people to communicate about their kids. It is my hope that congregations will help this process, encouraging divorced parents to talk to and include each other as well as their kids in synagogue events. This can minimize stress on the children and can lead to a more comfortable environment for the whole family.