‘Get-ting’ It Right — The intersection of religious and secular divorce

New Jersey Law Journal

Religious doctrine and secular law sometimes overlap and even collide. The Jewish get has been a much discussed topic in recent months, both in the legal world and in the media. This is in large part as a result of the now concluded trial of several New Jersey/New York area rabbis accused and convicted of using illegal and often physically coercive tactics to force recalcitrant Jewish men into “voluntarily” giving their wives the document called a get, without which a Jewish woman is not permitted a religious remarriage. U.S. v. Epstein, No. Cr. 14-287 FLW, (D.N.J. verdict entered April 22, 2015).

This article explores the problems inherent in simultaneously navigating secular and religious divorce as it pertains to the ability of the woman to remarry in her faith, surveys the history of civil law in New Jersey and New York to remedy the problem, and makes recommendations as to future legislation. As with many religions, Judaic law and custom varies with the level of orthodoxy practiced. This article specifically addresses the women who require the get for a religious remarriage.

The Problem and Religious Attempts at a Remedy

While a state may enact laws that apply universally to its constituents, many also choose to live their lives in accord with certain religious tenets or laws, which have a separate system of adjudication. One such religious law is the Jewish divorce. According to halacha (Jewish religious law), a divorcing woman is not permitted a religious remarriage unless she is physically handed a legal document called a get by her divorcing husband. The act of handing over the get must be voluntary.

The result of the refusal to cooperate with giving the get is the creation of the female status of agunah, or the woman chained to the religious marriage, unable to remarry in her faith. The agunah, who is often a psychologically abused and financially abandoned spouse with children, is in essence chained to a dead marriage and unable to move on with her life.

At times, the refusal to grant the get is made based on religious principles. However, the refusal is frequently based on negotiating leverage for the terms of divorce. This leverage may be where the husband seeks more favorable financial terms (such as reduced alimony and equitable distribution), or even more favorable custodial terms. In exchange for concessions made by the wife, the husband will agree to give the get. This leverage used only by the husband is the antithesis of the leveled playing field, which is the goal of our state’s matrimonial courts.

The ketubah, which is a halachic (religious) premarital agreement, is a frequently used device to establish the following: in the event the marriage is dissolving, both parties will agree to appear before a beth din, or Jewish court of law, and follow the beth din’s rulings. The beth din will arbitrate the dissolution of the marriage and granting of the get. The beth din will also arbitrate financial sanctions for non-compliance by the husband giving the get. Sanctions of $100 or $150 per day until the get is delivered are an example of those sanctions. Of importance, the beth din can order compliance by the husband but cannot physically force the husband to “voluntarily” give the Get. Unfortunately, many rabbis do not require the prospective couple to sign on to the above paragraphs to be included in the ketubah.

A predictable problem with the religious premarital agreement arises when followers of a faith turn to the secular legal system for enforcement of the agreement. The general principle has been that “courts can and do decide secular legal questions in cases involving some background issues of religious doctrine, so long as the courts do not intrude into the determination of the doctrinal issues.” Elmora Hebrew Center v. Fishman, 125 N.J. 404, 414 (1991).

Legislative History and Case Law

New York has taken the lead in addressing religious divorces. New York courts have enforced the ketubah as early as 1926. See Hurwitz v. Hurwitz, 216 A.D. 362 (1926). In 1983, New York enacted statutory provisions that require a party who commences a matrimonial action to verify that he/she has acted to “remove all barriers to remarriage.” See New York DRL §253 titled “Removal of Barriers.” Although nondenominational in language, the intent was to address the agunah problem by requiring the filing party to “remove any barrier to the [other spouse’s] remarriage following the annulment or divorce,” or a civil divorce will not be granted. The non-filing spouse who consents to the actual divorce must also abide by these terms.

In Avitzur v. Avitzur, 58 N.Y. 2nd 108 (1983), while the court upheld the ketubah as an enforceable agreement, the court was careful to state that it had authority to compel the husband’s appearance before the Beth Din, but not to force his execution of a get. Id. at 115-116.

An attempt to strengthen DRL §253 was made in 2010 in DRL §236(B)(5). This catchall provision permits the court to review all equities in a divorce when dividing marital property. The result is that not only are the economic sanctions contained in the ketubah available as a remedy to the wife, but the court’s determination of equitable distribution may be affected if the husband refuses to release the wife from the marriage.

In New Jersey, there is no statutory provision or rule addressing the issue of religious divorce or enforcement of religious premarital agreements.

In New Jersey case law, trial courts have been divided on these issues. In Minkin v. Minkin, 180 N.J. Super. 260 (Ch. Div. 1981), where the wife sought post-judgment relief to compel the husband to obtain a get, the husband objected, citing violations of First Amendment principles. The court found the parties’ ketubah was an enforceable premarital contract which required husband to produce the get. The court noted that in so much as clergy are authorized by statute to perform marriages and this is not deemed an excessive entanglement with religion, the get procedure, devoid of religious connotation, could not be more religious than the marriage ceremony itself. This model was followed by Burns v. Burns, 223 N.J. Super 219 (Ch. Div. 1987).

Conversely, in Aflalo v. Aflalo, 295 N.J. Super 527 (Ch. Div. 1996), the court dissented with the rationale of Minkin. The Aflalo court questioned the value of the document if ordered by a civil court, and surmised that, to the extent a get can be coerced, it should be the beth din to do so.

In Odatella v. Odatella, 355 N.J. Super. 305 (Ch. Div. 2002), Judge Selser determined that, “based upon neutral principles of law and not on religious policy or theories,” the court had jurisdiction to enforce an Islamic mahr, or premarital agreement. The Odatella court relied on Hurwitz and Minkin, as well as Avitzur, holding that there was “nothing in law or public policy to prevent judicial recognition and enforcement of the secular terms of [a ketubah].” (Emphasis added.)

Based on the above, the current status as to enforcement of religious premarital agreements can be generally summarized as follows: the agreement to arbitrate is civilly enforceable, as would be the economic sanctions for failure to arbitrate and failure to abide by the arbitration decision. However, specific performance of a religious activity cannot be forced by the court.

Recommendations

• Legislation: The concern with DRL §253 is that, in application, it applies only to those who commence an action for divorce or to those who agree to the divorce. The spouse who does not agree to the divorce is not bound to remove all barriers to remarriage. Therefore, I propose that this state begin with legislation similar to and combining the relevant portions of New York DRL §253 and §236(B)(5), but adding additional provisions to strengthen loopholes in the New York laws:

  (1) Each party that appears in the civil divorce shall agree to remove all barriers to remarriage.

  (2) Religious clergy who are submitting the civil marriage license to New Jersey shall require a written representation by both parties to cooperate to remove all barriers to the other’s remarriage.

  (3) Enforcing a religious or secular premarital agreement in which the parties agree to arbitrate their religious divorce before a religious tribunal; including economic sanctions contained therein for noncompliance.

  (4) Amending the New Jersey Equitable Distribution statute (N.J.S.A. 2A:34-23.1) to allow the trial court to consider the financial effect of one party refusing to remove barriers to religious remarriage.

• Addendum to New Jersey Marriage Application: Add an affidavit at the time the parties apply for their marriage license that would stipulate their agreement to remove all barriers to remarriage, in the event either party moves to dissolve the marriage. The benefit of this framework is many-fold. First, applying for one’s civil license is a centralizing event, with both parties being required to complete and sign the standardized form in order to be married civilly. See form NJ Reg-77. The form’s completion is, likewise, a witnessed event and offers evidentiary weight and credence to the parties’ consent to be bound by the statement. The civil license application process would also capture all civilly marrying couples regardless of religious affiliation.

Conclusion

While this article primarily addressed the Jewish divorce, any statewide remedies must not be directed at one particular religion. The above recommendations may be construed, for example, as requiring Catholics to cooperate in seeking a religious annulment (if that is the accepted religious marital dissolution that allows for a Catholic remarriage). Clearly, the problem of barriers to remarriage is of sufficient importance that it demands a concerted effort to create a remedy.

Reprinted with permission from the Monday, June 8, 2015 issue of The New Jersey Law Journal. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.