What can be done when one spouse refuses to give the Get?
As attorneys focusing their practice on divorce, we are often involved in trying to procure a Jewish divorce, also known as a “Get” for our clients. Why does this issue arise during a civil divorce and what can be done when one spouse refuses to give the Get?
Although parties can be civilly divorced, a spouse’s inability to obtain a Get will nonetheless bar remarriage under Jewish law, thereby, rendering that spouse unable to move on with their life. In the case of S.A. v. K.F. , Judge Jeffrey S. Sunshine, J.S.C., set forth many of the issues facing women of the Jewish faith who are unable to obtain a Get. During the trial, a Rabbi, who also served as a judge in a Rabbinical Court testified that the “effects of a barrier to remarriage are not restricted to the inability of a spouse to remarry; this also limits her social life, because she cannot relate to married couples, nor can she freely interact with single men. She would be unable to go to ““single’s’ events or date and is consequently unable to find another potential spouse and remarry. The Rabbi further testified that according to Jewish history, ‘a woman who does not receive a Get is considered as if she’s in mortal danger of her life because she has no ability to act in a normal fashion.’”
Based upon the foregoing, it is not surprising that the getting of the Get becomes a major pressure point for the spouse attempting to procure the Get and the source of heavy-duty leverage by the spouse who is to be providing the Get. While the intent behind Domestic Relations Law § 253(3) was largely to prevent the recalcitrant spouse in the case of a Jewish divorce from refusing the “Get” to extract financial concessions in a civil divorce action, the reality is that many spouses, often women, find the prospect of being chained to a dead marriage unbearable. They then either relent to demands with regard to custody, support, equitable distribution or risk remaining chained to a civilly terminated marriage.
To balance the scales between the giver of the Get and the receiver, can it be argued that Domestic Relations Law, provides authority for matrimonial Courts in New York State to incentivize a party to give a Get by imposing essentially the payment of financial sanctions in the form of increased equitable distribution and increased maintenance for the “chained party?” Conversely, do such decisions fly in the face of the First and Fourteenth Amendment to the United States Constitution? Doesn’t the fact that a plaintiff in a divorce action has to swear to the removal of barriers to the other party’s remarriage obviate this issue and automatically involve the Court? What does the matrimonial attorney need to prove if the Get can’t be gotten, to achieve an increased monetary award for their client?
Many of the answers to the foregoing questions hinge on proving that the party refusing to give the Get is doing so in order to extract “economic concessions” or where an “adjustment” is necessary as a result of the “adverse consequences resulting from a spouse’s failure to obtain the Get.” See Mizrahi-Srour v. Srour. Essentially if you cannot prove that the Get is being used as leverage to gain economic benefit or the adverse economic consequences, then the Court cannot direct a Get be given or in its absence financially penalize the refusing spouse as it runs afoul of the First and Fourteenth Amendment to the Constitution of the United States. See Cohen v. Cohen, in which the Second Department held that Mr. Cohen should not be penalized for failing to deliver a Get to Mrs. Cohen. On the other hand, in Schwartz v. Schwartz, the Second Department affirmed the trial Court’s determination that Mr. Schwartz lost his right to a distributive award due to his conduct in refusing to give Mrs. Schwartz a Get. The Appellate Division held that this was not an impermissible interference with religion given that Mr. Schwartz’s action were based “solely to extract economic concessions” from Mrs. Schwartz.
In A.W. v. I.N., in a twist, the wife refused to provide the husband with a Get, notwithstanding that she swore to remove the barriers to his remarriage. Significantly, the parties had executed a financial stipulation of settlement, which was silent as to the providing of the Get. Therefore, there was no contract law for which the Court could rely. Nor would the Court rely on the wife’s removal of barriers sworn statement as the husband urged while claiming that his wife made a false statement. The Court held that: “whether or not the wife removed religious barriers to the husband’s remarriage is an issue of religion, not within the Court’s purview.” Moreover, the Wife claimed that she had in fact removed all of the barriers. Any further inquiry would require the Court to delve into the religious issues, which the Court could not do as subsection (9) of Domestic Relations Law section 253 “states that [n]othing shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue.”
In Sieger v. Sieger the Court held that Mr. Sieger had complied with Domestic Relations Law §253 given that he was amenable to providing Mrs. Sieger with a Get, notwithstanding the wife’s claims that the husband’s obtaining a “heter” had the “practical effect of preventing her remarriage even if she were to receive a get.” The Court found that no form of economic coercion was exerted as it was Mrs. Sieger who refused to accept the “get” that Mr. Sieger continually offered to provide her. The Court noted that “this Court is without jurisdiction to consider the issue because to do so would require the court to review and interpret religious doctrine and resolve the parties’ religious dispute, which the court is proscribed from doing under the First Amendment entanglement doctrine.” Further, the Court’s jurisdiction to review the “heter”, a Rabbinic allowance, obtained by Mr. Sieger, is prohibited under Domestic Relations Law § 253(9) which states that “[n]othing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue.” Also see Taub v. Taub.
In Mizrahi-Srour v. Srour, the Second Department, affirmed an award of additional spousal support should Mr. Srour not provide Mrs. Srour with a Get to adjust for the adverse economic consequences she would suffer as a result and held that said award was not an impermissible interference with religion. While the Second Department did not set forth any information about the husband’s attempts to extract financial concessions, it did note the husband’s “economic misconduct” and his “frustration of any attempt to value the family business, which he apparently abandoned.”
In Masri v. Masri, the Supreme Court of Orange County, held that there was no evidence presented to the Court that defendant withheld a Get to extract concessions from plaintiff in the matrimonial litigation or “or for other wrongful purposes”. In its analysis, the Court stated that the First and Fourteenth Amendment to the United States Constitution would be violated in applying coercive financial pressures to induce Mr. Masri to perform a religious act that would plainly interfere with his free exercise of religion. “According to Ms. Masri’s own evidence, Mr. Masri invoked religious grounds for refusing to deliver to Ms. Masri a Get, i.e., that Ms. Masri by seeking intervention from a secular Court waived her right to rabbinical arbitration connected with obtaining a Get.”
Significantly, like the Court in Masri v. Masri., Judge Bartlett raised the prospect of a party’s ability to enforce the getting of the Get pursuant to contract law, citing the Court of Appeals decision Avitzur v. Avitzur. In Avitzur, the Court of Appeals enforced the parties “binding prenuptial agreement – entered into as part of a Jewish wedding ceremony—to arbitrate any postmarital religious obligations before a specified rabbinical tribunal,” notwithstanding the “constitutional prohibition against excessive entanglement between church and State…” Specifically, the Court noted that the Avitzur Court’s decision was based not on the enforcement of religious practices but instead on the agreement that the parties entered.
As set forth above, it is plain that the Court may in fact penalize a party for refusing to provide a Get if certain conditions are met, specifically if the Get is being used as leverage to secure economic concessions or if the Court finds it necessary to adjust for adverse economic situations resulting from the failure to obtain a Get. Where, however, does this leave spouses who are attempting to divorce religiously from spouses who are claiming that they are simply not giving the Get based upon their own religious beliefs? A solution may in fact be to advise clients to enter into a premarital contract that binds each party to provide the Get. At the end, contract law may be the salvation for parties to ensure their ultimate freedom in the event of divorce.
Read the article originally published in New York Law Journal here: Getting the Get: Contract Law May be the Solution | New York Law Journal