Get a "GET" first ??
During the mediation process, Many Jewish couples often ask me whether they need to get a rabbinical divorce or “a Get”, and whether they need to obtain it before or after the civil ceremony? Is it better to draft an agreement and file it with the Family court/ supreme court before they go to the Bait din?
In order to opine on this subject, I need to start with a brief explanation of what is a "Get" and why it is important for a Jewish couple even if they are not religious or didn't get married in a Jewish ceremony. A "Get" is a writ of Jewish divorce which terminates a Jewish marriage and enables the former husband and wife to remarry freely under Jewish law. Written by hand by a professionally trained scribe under the proper supervision of a Bait Din, or Rabbinic Court, and signed by two witnesses. Under Jewish law, a Get is presented by a husband to his wife. When she acquires the document, both of them are released from all marital obligations. They must still fulfill the obligations and restrictions stemming from divorce under Jewish or secular law, such as support payments, and custody arrangements. For most Jewish couple, marriage begins with a Jewish ceremony uniting a man and a woman. The "Get" ends, or terminates that union. It is a formal, clear-cut, legal process which requires only the consent of both parties. A get is advisable anytime the couple was married, even if there was no Jewish ceremony, why? Because if one of the parties would like to get married again, and they didn't follow this procedure they will be considered as a married couple by the jewish law even if their marriage ceremony was a civil one.This is especially true when it comes to the Israeli law which compel the jewish couple to get their divorce by the the Bait din even whether the marriage ceremony was religious or civil.
Failing to obtain the "Get" will result in a risk that their future kids with their new partner will be considered as "basters".
This is the reason most of the Jews may still feel they need a "Get" in order to assure that any future marriage and children will be recognized by form of Judaism. The Get makes no reference to responsibility or fault. It has no bearing or effect on any aspect of the civil settlement which they reached by mediation or by litigation/judge, also it does not subject either party to personal questions. As long as there is mutual consent, there is no need to state detailed grounds for divorce, although the bait din may give the couple an opportunity to briefly state such grounds. Unfortunately, the "Get" is presented by the husband only! it is not a mutual procedure, as a result of that if the husband refuses to grant his wife the "Get" the wife becomes "agunah" which means she is still a married woman until the husband will agree to grant the "Get" to her.
This is a very important part which brings me to the question: what shall we do first ? have an agreement and file to the civil court or go first to get the Get"? I will recommend to first go for mediation and reach an agreement which will be filed to the Family/supreme court, inside the content of the agreement as part of the terms, you should include a specific clause which says "The parties shall proceed with the obtaining a "GET" at the Bait Din Rabani and to cooperate with each other in all steps necessary to obtain and facilitate the process of the "GET" ". This significance clause will anchor and ensure that the husband will give the "Get" to the wife.
A case that was in NJ as regards to this issue in which the judge compelled the husband to give a Get to his wife in claiming that their agreement specified within it. The judge also stated that without the agreement he could not force the husband to give the Get, which shows how much it is significance to first reach an agreement and to file to court.
Another notable point, in united state in order to receive alimony (maintenance), you have to be married, if one of the sides will approve that your marriage was terminated, (one of the way to terminate your marriage is the "Get procedure") then you might not be eligible to receive an alimony. In conclusion, it is important for a Jewish couple even if they didn't get married in a religious ceremony, and particularly if they had, to try to resolve their issues in a bridging path, mediation, and when they reached an agreement then file to court and while keeping in mind not to forget to add the "Get" clause as part of your agreement. After that go to the Bait din in order to complete the "GET" procedure.