Gotta get a get? What exactly is a get? In a divorce involving a Jewish couple, a get is the document that grants the Jewish part of the divorce. Marriages can be both civil and religious even though we tend to conflate them by having a religious official perform the ceremony. A civil marriage means the civil government (i.e. the State of NJ) recognizes the marriage, with all the benefits and obligations that come with it. A religious marriage means the religion recognizes the union in the eyes of G-d and within that community under that community’s laws. To divorce, both civil and religious marriages must be dissolved through those formal processes. In the case of a civil marriage, a court must issue a divorce decree to dissolve the marriage. In the case of a Jewish marriage, a get is needed to dissolve the religious marriage.
The get technically (and traditionally) is a release of the wife from the marriage. The wife becomes unbound and free to marry again — as does the husband. It must be in writing, usually by a sofer (scribe) in front of two witnesses. The process is managed by a Beit Din (Jewish tribunal — under American law it is an arbitration panel). Traditionally, the get must be freely requested by the husband. The completed get must be physically given to the wife for the process to be completed. There are a number of other requirements, but this is the general gist.
What if the husband refuses to grant a get? The wife can sue in a Beit Din for divorce. However, the Beit Din cannot grant the get without the consent of the husband. Without a get, a spouse cannot remarry. Such a spouse is called agunah or chained. The Beit Din can impose sanctions on the husband for refusing. For instance, in Israel, a husband can be jailed for refusing a get — similar to contempt of court here in the U.S. In the U.S., where the rabbinic courts have no such authority, they can essentially socially shame the husband in the close-knit community. For instance, they can force the husband to sleep in a cemetery at an unmarked grave or perhaps no one will talk with the husband at religious services. In some of the more progressive Jewish movements (i.e. the conservative movement), a Beit Din can annul the marriage in extreme cases. The granting of a get cannot be used as coercion or leverage in divorce negotiations.
It is not entirely clear how this would work with a same-sex couple, as traditional Jewish law does not recognize such marriages. While progressive Judaism does recognize such marriages, it is not settled how gets work in these cases (there are no traditional husband and wife roles).
Can a civil court grant or order a get? No. The First Amendment essentially prohibits the government (courts) from being involved in religion. Only a Beit Din can grant a get. It is unlikely a court could order children to go to religious services or school.
Religious elements can be incorporated into civil divorce documents (such as the Property/Marital Settlement Agreement), but it has to be with the consent of the parties. Courts do enforce agreements that are not unconscionable. When I mediate divorces, I address religious issues and add them to the Memorandum of Understanding if the couple so chooses.
To learn more about using mediation to divorce (and religious issues in divorce), please contact me.