How to Get a Religious Divorce in a Secular State

[Editors’ Note: The following article by Andrew Zashin was originally published in the Cleveland Jewish News on November 16, 2012.]

The issue of the agunah – a woman whose husband refuses to give a get (Jewish writ of divorce) that must be offered by her husband – has garnered a good bit of attention in Israel. Earlier this year, it was reported that the Great Rabbinical Court in Jerusalem upheld one man’s indefinite prison sentence. He has been imprisoned, and will continue to be imprisoned, for so long as he refuses to offer a get. As an aside, he has been in prison for more than 10 years.

In the United States, the issue was recently in the news in relation to Tamar Epstein, the nation’s most famous agunah. Separated from her husband, Aharon Friedman, tax counsel for the U.S. House of Representatives Committee on Ways and Means, in 2008 and civilly divorced in 2010, she remains even now “chained” to the man who refuses to grant her a get.

The issue is a bit controversial, with activists and nonprofit groups such as the Organization for the Resolution of Agunot calling get refusal a form of domestic abuse, while supporters of Friedman said they believe Epstein’s alleged alienating behavior in the associated custody dispute more than justifies his actions.

People have reasons for not agreeing to a get. Some refuse based upon their interpretation of their religious and moral obligations. Some refuse out of spite. Some are just plain nuts. But far and away the most common reason for get refusal is to provide leverage to obtain a better property and/or custody arrangement than civil law might otherwise allow. Documented cases show unscrupulous husbands refusing the get unless they get outrageously one-sided settlements.

Most problematic is what to do when a get is refused. Divorces fall under the purview of the state courts and, more specifically, the common pleas court in the county of the parties’ residence. But the strictly secular nature of the court system makes it difficult – if not impossible – for a court to order someone to submit to a religious divorce.

One of the easiest ways to obtain a get is to contract for it before the marriage. Put it in a prenuptial agreement. The law is continuing to evolve in this area, but even if a civil court cannot order someone to offer or accept a get, it may be able to enforce the terms of a contract in which two parties are bound to do these things.

Even better is to agree to submit a din torah (judgment) matter to the Beth Din of America. By agreeing to proceed in this manner, the parties can resolve all issues of the get – including financial and custody matters – through mediation. Mediation is a facilitated process of negotiation intended to reach a settlement in all areas of conflict between the parties. The Beth Din also permits the parties to submit to arbitration. In that situation, all issues in dispute (except for parenting) can be presented to a panel of rabbis, in lieu of a secular judge or magistrate, for a binding resolution.

The concept of a prenuptial agreement is controversial for many reasons, both religious and secular. On a personal level, it is uncomfortable to consider the possibility of divorce at the same time you are planning your happily ever after. On a religious level, many rabbis are hesitant to encourage their congregation to consider such agreements because they represent such a big paradigm shift from traditional marriage. However, on a practical level, if a get is important to you – and to your children – it is a wise alternative to avoid trouble down the road.

This issue is a unique one, but one of paramount importance to a woman who may become an agunah, her future spouse and children. And wishing won’t make it go away. The complexity of this issue extends far beyond scope of this column; however, prenuptial agreements like the Beth Din form would resolve a large number of agunot cases. And this document solves the issue in a very tangible way. With this document, get refusal can result in very real civil ramifications, including monetary penalties enforceable in civil courts.

2023-11-10T13:38:16-05:00January 13th, 2013|Divorce, Jewish Divorce / Get, Religion|

Religious Agreements, Secular Courts, and Children

It is relatively common for potential clients to come to us and inquire about what religion their children will be after the divorce. Although this question may seem strange to the uninitiated, experienced divorce lawyers hear questions like this quite frequently. The question most often sounds like this: “if I un-convert, what happens to my children?”

People in the United States routinely change their religion to accommodate their potential spouses. Religion, like so many other things in our culture, is a disposable commodity for many. Sometimes it is no different from a dress or a shirt that one might put on for a special occasion but then throw away when it becomes uncomfortable. What impact does this “un-conversion” have on children after the parties’ divorce? Can a person be made to retain the religion they converted to (see our previous, related blog entry)? Can a court enforce an agreement – which frequently comes in the form of a prenuptial agreement – to raise children a certain way and according to a certain faith?

Courts may not enforce custody arrangements in a prenuptial agreement if such terms are not in the children’s best interest at the time of a divorce. Likewise, terms relating the religious upbringing of children are generally treated as no more than “precatory” language (that is legalese for “wishful” or “aspirational”) terms. Even so, those agreements are not necessarily entirely meaningless. Such terms in combination with the conduct of the parties could be relevant to any best interest determinations.

Notwithstanding their largely precatory nature, courts may choose to enforce agreements regarding children’s religious upbringing or schooling. For example, in Jordan v. Rea, 212 P. 3d 919 (Ariz Ct. of App. 2009), the court found that parents have a fundamental liberty interest under the United States Constitution to direct the upbringing and education of their children. Unless fit parents disagree, a court has no jurisdiction to become involved with choices for children’s upbringing. When fit parents disagree, then a court must apply the “best interest” standard. In Jordan, the court held that it could not rule out the placement of the child in a religious private school simply because it is a religious school. Our experience tells us that when faced with the dilemma of having to choose between competing religious approaches, courts and decision makers tend to move towards the “middle”; mainstream (i.e. more “normal” or secularly conventional) positions will usually defeat those that appear more extreme. Almost always, as it relates to children’s issues, arguments cast as representing the “best interest of the child” are the winning formulations.

As a related matter, terms contained in an ante-nuptial agreement that abrogate a person’s ability to change religion could violate the individual’s First Amendment rights if enforced or could otherwise be deemed unconscionable in their application. A court order adopting an agreement regarding or enforcing a child’s religious training would not be per se problematic as long as it would not prevent a parent from changing his or her religion. Thus, a person in the United States is free to convert, and then un-convert, as he or she wishes.

2023-11-10T13:38:17-05:00December 17th, 2012|Divorce, Religion|

Seeking to Enforce Religious Agreements in a Secular Court

Often people come to us for divorce consultations and ask our advice about the religious “deal” they struck with their soon-to-be ex-spouse. They want to know whether or not the terms of the deal are enforceable, or, whether they can avoid enforcement of the deal. The separation of church and state is axiomatic in our country, making the enforcement of religious agreements an area fraught with uncertainty both for litigants and their lawyers. Although courts will certainly offer guidance in many situations, it is just as often the case that they find they cannot order an individual to do something related to the exercise of religion.

After looking at prior cases decided in multiple jurisdictions, the most reasonable conclusion we can reach is that the effective lawyer is one who bases his or her arguments on secular contract law and “neutral principles,” rather than on religious ones. But, generally speaking, the answer is “no,” such agreements are not enforceable in civil courts. People can change their minds about religion and the religious deals they make. Courts are unable to interfere with a person’s changed religious preference. This means that family law attorneys often find have to help their clients sort through the consequences of such a change. That is not to say that religious agreements are never enforceable. A religiously based prenuptial agreement, for example, may be deemed valid.

Generally speaking, prenuptial agreements are governed by contract law. But the laws regarding prenuptial agreements are frequently stricter than those governing other types of contracts, and certain formalities usually must be followed. For example, in the Arizona case of Victor v. Victor, 866 P.2d 899 (Ariz Ct. of App. 1993), the Ketubah (a Jewish prenuptial agreement) satisfied the formality requirements for a valid prenuptial agreement, in spite of its religious beginnings. Nonetheless, the court held that it was not specific enough to constitute an entirely valid prenuptial agreement.

Often times, promised payments or other secular terms (e.g. simply appearing at a religious tribunal) either in a Mahr, in the Muslim faith, or a Ketubah, in the Jewish faith, give rise to an enforceable contract. Such was the case in the New Jersey and Florida matters of Odatalla v. Odatalla, 810 A. 2d 93 (N.J. Super. Ct. 2002) and Akileh v. Elchahal, 666 So. 2d 246 (Fla. Dist. Ct. App. 1996).

Since prenuptial agreements must satisfy certain prerequisites, a “contract” that is merely implied rather than being formally recorded would probably not be considered valid. The best practice is to video tape the execution and formalization of the religious contract just as one might video tape a prenuptial contract. In the recording it is essential to underscore the religious aspects that dovetail with the secular law.

Ultimately, whether a religious contract is likely to be enforced by a civil court depends upon whether the civil court is required to determine religious law or to perform a religious act. There is, perhaps unsurprisingly, conflicting authority on this issue. However, the best argument is one that employs secular principles, supports public policy, does not require the civil court to make a religious determination, and will lead to a result that is in line with prevailing law.

Sounds like a tall order? Perhaps… Consider the following cases:

In Victor v. Victor, supra, the court held that the Ketubah did not mandate that the husband give his wife a Get (a Jewish divorce) and that by interpreting the Ketubah, the court would be overstepping its authority and assuming the role of a religious court.

In Steinberg v. Steinberg, 1982 Ohio App. LEXIS 12314 (Cuyahoga Cty. Ct. of App 1982), the court held that it could not enforce the provision of a divorce decree which mandated that the parties would fully cooperate with each other in obtaining a Get. The court held that, when parties to a separation agreement include an obligation to perform a religious act, such requirement is unenforceable either under contract law or a divorce decree.

In Zawahiri v. Atwattar, 208 Ohio App. LEXIS 2928 (Franklin Cty. Ct. of App. 2008), the trial court held that an Islamic Mahr which required that the husband pay a sum of money to the wife could not be enforced since it required the performance of a religious act.

In Aflalo v. Aflalo, 295 N.J. Super. 527 (Super. Ct. of N.J. 1996), the court held that a husband could not be required to perform the religious act of giving his wife a Get.

But compare those with the following cases:

In Avitzur v Avitzur, 58 NY 2d 1D8 (NY Ct. of Apps. 1983), after the husband obtained a civil divorce from his wife, he brought action against her to compel her to appear before a rabbinical tribunal as she had previously agreed to in a Jewish divorce document signed prior to the marriage. The trial court dismissed the action, but the Court of Appeals reversed. The appellate court reasoned that nothing in the law or public policy prevented judicial recognition and enforcement of the secular terms contained in a religious marriage agreement. The husband was not compelling the wife to obtain a religious divorce. Instead, he sought to enforce the parties’ agreement to appear before the tribunal. Therefore, the court was merely performing a secular functionof enforcing the parties’ agreement; it was not determining any religious law.

In Odatalla v. Odatalla, supra, the court enforced a provision in a Mahr requiring a $10,000 payment because the religious contract met the requirements of a contract in New Jersey. Interestingly, the negotiation of the Mahr was videotaped so its validity was relatively easily determined. The husband’s argument that the payment’s postponed nature made the provision unenforceable was rejected. The term regarding the postponed payment was likened by the court to a promissory note which the wife could demand at any time. Approving of the use of simple contract approach to resolve dispute, the court stated: “… is the most consistent with the character of the Mahr under Islamic law and with American notions of equity and justice.”

What all of this means – to both the practitioner and the client trying to either enforce or invalidate a religious agreement – is that before our civil court system is likely to enforce a religious contract, it will first determine whether or not the enforcement will require a determination and enforcement of religious law, or the requirement to perform a religious act. If the court is not required to perform a religious act then the contract may be enforced. Thus, it appears that the enforcement of contractual provisions (i.e. for obtaining a Get, as in Avitzur) may be considered as requiring the performance of a religious act in violation of the First Amendment, but an agreement to resolve martial disputes in a religious forum may be enforceable.

How to get a religious ‘get’ in a secular state

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

The issue of the agunah – a woman whose husband refuses to give a get (Jewish writ of divorce) that must be offered by her husband – has garnered a good bit of attention in Israel. Earlier this year, it was reported that the Great Rabbinical Court in Jerusalem upheld one man’s indefinite prison sentence. He has been imprisoned, and will continue to be imprisoned, for so long as he refuses to offer a get. As an aside, he has been in prison for more than 10 years.

In the United States, the issue was recently in the news in relation to Tamar Epstein, the nation’s most famous agunah. Separated from her husband, Aharon Friedman, tax counsel for the U.S. House of Representatives Committee on Ways and Means, in 2008 and civilly divorced in 2010, she remains even now “chained” to the man who refuses to grant her a get.

The issue is a bit controversial, with activists and nonprofit groups such as the Organization for the Resolution of Agunot calling get refusal a form of domestic abuse, while supporters of Friedman said they believe Epstein’s alleged alienating behavior in the associated custody dispute more than justifies his actions.

People have reasons for not agreeing to a get. Some refuse based upon their interpretation of their religious and moral obligations. Some refuse out of spite. Some are just plain nuts. But far and away the most common reason for get refusal is to provide leverage to obtain a better property and/or custody arrangement than civil law might otherwise allow. Documented cases show unscrupulous husbands refusing the get unless they get outrageously one-sided settlements.

Most problematic is what to do when a get is refused. Divorces fall under the purview of the state courts and, more specifically, the common pleas court in the county of the parties’ residence. But the strictly secular nature of the court system makes it difficult – if not impossible – for a court to order someone to submit to a religious divorce.

One of the easiest ways to obtain a get is to contract for it before the marriage. Put it in a prenuptial agreement. The law is continuing to evolve in this area, but even if a civil court cannot order someone to offer or accept a get, it may be able to enforce the terms of a contract in which two parties are bound to do these things.

Even better is to agree to submit a din torah (judgment) matter to the Beth Din of America. By agreeing to proceed in this manner, the parties can resolve all issues of the get – including financial and custody matters – through mediation. Mediation is a facilitated process of negotiation intended to reach a settlement in all areas of conflict between the parties. The Beth Din also permits the parties to submit to arbitration. In that situation, all issues in dispute (except for parenting) can be presented to a panel of rabbis, in lieu of a secular judge or magistrate, for a binding resolution.

The concept of a prenuptial agreement is controversial for many reasons, both religious and secular. On a personal level, it is uncomfortable to consider the possibility of divorce at the same time you are planning your happily ever after. On a religious level, many rabbis are hesitant to encourage their congregation to consider such agreements because they represent such a big paradigm shift from traditional marriage. However, on a practical level, if a get is important to you – and to your children – it is a wise alternative to avoid trouble down the road.

This issue is a unique one, but one of paramount importance to a woman who may become an agunah, her future spouse and children. And wishing won’t make it go away. The complexity of this issue extends far beyond scope of this column; however, prenuptial agreements like the Beth Din form would resolve a large number of agunot cases. And this document solves the issue in a very tangible way. With this document, get refusal can result in very real civil ramifications, including monetary penalties enforceable in civil courts.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

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