Before a Jewish marriage takes place, generally the parties sign a document known as a Ketubah. The parties are then married in a combination religious/civil ceremony. The question has arisen when the parties civilly divorce, can one party be compelled to grant a religious divorce.
The Ketubah is written in Aramaic and translated into English. Under Jewish law a marriage can be dissolved only with the transfer from the husband to the wife of a document called a get. The get must be presented to a Rabbinical Tribunal known as a Beth Din. Until that is obtained, her religion prohibits her from remarrying. If she remarries the marriage would not be recognized by her religion and any children would be considered illegitimate. A woman is labeled an “agunah” which literally means “chained”.
“Courts have gone both ways on whether the agreements violate the First Amendment and whether such agreement is specific enough to enforce.” Comment , Enforceability of Agreements To Obtain a Religious Divorce, Kimberly Scheuerman, Journal of the American Academy of Matrimonial Lawyers, Vol. 23, No. 2 (2010). In Illinois the case on point is In re Marriage of Goldman, 554 N.E.2d 1016 (Ill.App. 1990). Goldman, it should be noted, was a two to one vote. The majority ruled against Mr. Goldman’s claims that enforcement of the Ketubah would violate his constitutional rights under the Federal and State Constitutions (Establishment and Free Exercise Clauses of the First Amendment and Article I, Section 3 of the Illinois Constitution). The Appellate Court ruled that the order had a secular purpose of enforcing a contract between the parties. The Court in Goldman cited the New York case of Avitzur v. Avitzur, 58 N.Y.2d 108, 459 N.Y.S.2d 572, cert denied 464 U.S. 817 (1983) and the New Jersey cases of Minkin v. Minkin, 434 A.2d 665 (1981), and Burns v. Burns, 538 A.2d 438 (1987). However, Mr. Justice Johnson, dissenting, stated that, “the court must not compel petitioner to participate in any performance of a provision within the contract which necessarily required interpretation of a religious doctrine and his involvement in an act of religious worship.” 554 N.E.2d at 1026.
It should also be noted that Avitzur was a 4 to 3 decision. So, obviously the Court of Appeals of the State of New York did not feel the issue was black and white. In fact, it had to reverse the Appellate Division which had held the Ketubah to be “a religious covenant beyond the jurisdiction of the civil courts.” 58 N.Y.2d at 111. The dissent in that case noted that the husband’s obligation under the Ketubah “cannot be made without inquiry into and resolution of questions of Jewish religious law and tradition.” 58 N.Y.2d at 119.
In 1994 the Court of Appeals in Arizona decided the case of Victor v. Victor, 177 Ariz. 231, 866 P.2d 899 (C.A.Ariz. 1994). In that case the trial court refused to order the husband to take part in the separate religious divorce proceeding, and the Court of Appeals affirmed. Minkin, Avitzur and Goldman were discussed. The Court first ruled that the provisions of the Ketubah only related to financial obligations. Its language that the parties will comply with the “laws of Moses and Israel” was considered a vague provision with no specific terms describing a mutual understanding that the husband would secure a Jewish divorce. “If this court were to rule on whether the ketubah, given its indefinite language, includes an unwritten mandate that a husband under these circumstances is required to grant his wife a get, we would be overstepping our authority and assuming the role of a religious court. This we decline to do. We hold that, in this case, as a matter of law, the ketubah does not constitute an enforceable antenuptial agreement.” 177 Ariz. at 234. Based on that ruling, that Court did not need to reach the First Amendment issue.
The case of Minkin v. Minkin, 180 N.J.Super. 260, 434 A.2d 665 (N.J.Super. 1981) had been decided in the Superior Court of New Jersey. Since the court needed assistance, on its own motion it requested the testimony of four distinguished Rabbis. Based on the testimony the court found that the entry of an order compelling the husband to secure a get would have a clear secular purpose of completing the dissolution of the marriage and therefore it satisfied the three-prong test under Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 772-773, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973).
However, the law changed in New Jersey in 1996 with the case of Aflalo v. Aflalo, 295 N.J.Super 527, 685 A.2d 523 (N.J.Super. 1996). Minkin was discussed as was Avitzur and Goldman. It was also noted that those cases were at odds with the Court in Victor, supra, “and, now, this court.” It was first stated that “the conclusion that an order requiring the husband to provide a ‘get’ is not a religious act nor involves the court in the religious beliefs or practices of the parties is not at all convincing. It is interesting that the court was required to choose between the conflicting testimony of the various rabbis to reach this conclusion. The one way in which a court may become entangled in religious affairs, which the court in Minkin did not recognize, was in becoming an arbiter of what is ‘religious'”. 295 N.J. Super. at 537-538. The Court continued, “It may seem ‘unfair’ that Henry may ultimately refuse to provide a ‘get’. But the unfairness comes from Sondra’s own sincerely-held religious beliefs. When she entered into the ‘ketubah’ she agreed to be obligated to the laws of Moses and Israel. Those laws apparently include the tenet that if Henry does not provide her with a ‘get’ she must remain an ‘agunah’. That was Sondra’s choice and one which can hardly be remedied by this court. This court has no authority – were it willing – to choose for these parties which aspects of their religion may be embraced and which must be rejected. Those who founded this Nation knew too well the tyranny of religious persecution and the need for religious freedom. To engage even in a ‘well-intentioned’ resolution of a religious dispute requires the making of a choice which accommodates one view and suppresses another. If that is permitted, it readily follows that less ‘well-intentioned’ choices may be made in the future by those who, as Justice Jackson once observed, believe ‘that all thought is divinely classified into two kinds – that which is their own and that which is false and dangerous’. American Communications Associates v. Douds, 339 U.S. 382, 438, 70 S.Ct. 674, 704, 94 L.Ed. 925 (1950) (dissenting opinion).” 295 N.J.Super. at 543.
Then in Mayer-Kolker v. Kolker, 359 N.J.Super. 98, 819 A.2d 17 (N.J.Super. 2003) the question again came up in the Superior Court of New Jersey. The trial court denied the wife’s request for a get, citing Aflalo. The conflict in the law was discussed. In this case the court of review focused on the particular Ketubah. The specific translation was not available to the court. Additionally, no evidence was presented about the effects of a Ketubah generally or this one in particular, nor was any expert testimony presented to explain what Mosaic law requires in this instance. It was remanded for development of a more complete record as to the parties’ obligations under Mosaic law, the Court stating that, “the trial court’s determination that it should not compel defendant in regard to the get is correct, but for different reasons than those advanced.” 359 N.J.Super. at 105.
An Ohio court has also ruled that an order requiring the obtaining of a get is unconstitutional and therefore void. This was so even though in the marital settlement agreement the parties had agreed to fully and completely cooperate with each other in obtaining the get. Steinberg v. Steinberg, 1982 WL 2446 (Ohio App. 8 Dist.). Even a modified order recognizing that there was no direct power to compel the get but that the court could indirectly do so by refusing to enforce the payment of funds due under the divorce if the get was not procured, was also void. The Court stated, “Where parties to a separation agreement include therein an obligation relating to a religious practice, said obligation is unenforceable in a court of law either as a contractual provision or pursuant to the enforcement of a divorce decree which incorporated therein the terms of the separation agreement.”
And long ago, a court of review in Florida held that there was not statutory authority to order the husband to cooperate with the wife in obtaining a Jewish divorce. Turner v. Turner, 192 So.2d 787 (Fla. App.3 Dist. 1966). Mr. Justice Johnson in his dissent in Goldman, agreed with this view. 554 N.E.2d at 1026. Similarly, in Price v. Price, 16 Pa. D. & C. 290 (Pa. Com. Pl. 1932) a Pennsylvania court held, without citing any authority, that it could not order the husband to submit himself to a Rabbi to procure a religious divorce.
In 2008 a court in New York found that when the parties had by written agreement agreed to arbitrate their marital dispute before a rabbinical Beth Din court it was held that, on First Amendment grounds, the court could not address the husband’s claims that the arbitrators failed to comply with Jewish law in conducting the proceedings and rendering their award. Berg v. Berg, 25099/05 (9-8-2008), 2008 N.Y. Slip Op 51823 (U), (Supreme Court N.Y. 2008 (unpublished)). The same result ensued in the recent Maryland case of Lang v. Levi, Case No. 1425 (2011). The Court of Special Appeals of Maryland refused to go behind the determination of Jewish law, concluding that “treading lightly is not enough. Here we cannot tread at all.” Watson v. Jones, 80 U.S. 679, 727 (1871) was cited for the proposition that “religious questions should be decided by religious authority”.
In 2007 the get issue came before the Supreme Court of Canada and while the obligation to provide a get was found, it was a 7 to 2 decision. The case was Bruker v. Marcovitz, 2007 S.C.C. 54. In this case, however, the husband had specifically agreed to provide the get in the parties’ civil divorce decree. Upon the ex-husband’s refusal to comply after the civil divorce, the former wife sued her ex-spouse for money damages. The trial court awarded her a judgment for damages. The Appellate Court however, overturned the judgment, stating that the obligation was religious in nature. The decision of the Quebec Court of Appeals by the way, was unanimous. The Supreme Court of Canada in a 7 to 2 decision reinstated the damages judgment. The dissent began, “The question before the Court is whether the civil courts can be used not only as a shield to protect freedom of religion, but also as a weapon to sanction a religious undertaking. Many would have thought it obvious that in the 21st century, the answer is no. However, the conclusion adopted by the majority amounts to saying yes. I cannot agree with this decision.” The Court looked at cases from other nations, and the dissenting Justices observed that the solutions adopted by other countries with respect to the granting of a get were quite varied and governed by their own internal private law rules. Justice Deschamps, dissenting, concluded that “[the cases] establish no principal of public law that is so persuasive that Canadian courts should alter their approach.”
Irving Breitowitz, is not only a professor of law at the University of Maryland School of Law, but a Rabbi. In discussing Goldman, in a law review article, he states, “Neither party was an Orthodox Jew at the time of marriage, but Annette became Orthodox during the course of her marriage. A crucial point that the court simply glosses over is that the get is required for dissolution only in the Orthodox and Conservative traditions and not in the Reform or Reconstructionist traditions.” The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, Breitowitz, 51 Md. L. Rev. 312, 345, n. 143 (1992). Professor Breitowitz opines that, “Cases like Stern, Minkin, Burns, and Goldman pose problems from a number of perspectives. In particular, as a matter of contract, constitutional law, and halacha, their reasoning is somewhat deficient.” Id. at 346. “Even assuming that in a given case the terms of the ketubah can be regarded as giving rise to an enforceable contract, the question becomes: Contract for what? Certainly, the ketubah contains legally ascertainable commitments with respect to alimony and property settlements, but it mentions nothing with respect to the granting of a divorce. Language to the effect that the husband betroths his wife ‘in accordance with the laws of Moses and Israel’ can hardly mean a blanket agreement that all aspects of their family life shall be conducted in accordance with the dictates of Jewish law. No one would suggest, for example, that if one party failed to observe the Sabbath or ate nonkosher food, the other party could bring an action for damages, or even worse, a suit for specific performance. Indeed, even an express agreement to this effect arguably could not be enforced because of the First Amendment.” Id. at 348-349. “To the extent the Goldman court holds that the individual’s belief system must somehow constitute a ‘formal religion’ to be protected, the holding appears incorrect… while the trial court was free to disbelieve the husband’s contentions in Goldman — after all, he had given a get to his first wife – it seems problematic that the judge can believe him nonetheless and hold that such ideas do not rise to the level of constitutional protection.” Id. at 358, n.202.
New York has also enacted a statute, Article 13, DRL Section 253 which provides that the litigants in their petition must represent that they have or will take steps to remove any barrier to the other party’s remarriage and that a divorce decree shall not be entered without such a statement. Going even further, Article 13 DRL Section 236 B was later enacted providing that the effect of such a barrier to remarriage can be taken into account by the court in its equitable distribution of property and the amount and duration of maintenance.
In Scholl v. Scholl, 621 A.2d 808 (Del. Fam. Ct. 1992) the husband had agreed in his civil divorce to obtain a get, and did in fact do so. However, the wife complained that since the get was issued by a Conservative Rabbinical Court rather than an Orthodox Court, it was insufficient. Avitzur was cited with approval; as was Minkin on the constitutional issue. The Court further held, aided by testimony of two Rabbis, that the husband did not sufficiently comply with his previous agreement. It was established that the marriage was conducted under Orthodox law, which meant that an Orthodox get was mandated.
Recently an Appellate Court in Illinois went as far as to sanction a litigant for a frivolous defense who attempted to distinguish the Goldman case. In re Marriage of Schneider, 945 N.E.2d 650 (Ill.App. 2011, Petition for Leave to Appeal to Illinois Supreme Court denied). However, in that case, neither the trial court nor the Appellate Court was given a focused explanation of the division in the law, including the fact that Goldman was only a 2-1 decision. The Schneider case did present the issue of res judicata; in other words, although the Schneider divorce had been fully litigated, Mrs. Schneider did not bring her request to enforce the Ketubah until years afterwards. (Mrs. Goldman brought her request in the original divorce proceedings) There was at least a good faith argument that she could have brought that request in the original divorce proceedings.
A Ketubah can have other substantive consequences. In In re the Marriage of Levey, No. 2005 AP 2809, 731 N.W.2d 382 (Wis. App. 2007) (unpublished) an award of family support was affirmed. The parties’ Ketubah was deemed a significant factor in the determination of support, although it lacked the requisite specificity of an agreement.
The point is, there is a dichotomy on this matter and the majority of states have yet to face this important issue. In other states that have issued rulings, perhaps an argument can be made to modify the law, such as what took place in New Jersey. Testimony from one or more Rabbis may be helpful as to the effect of the Ketubah. Whether the contract is sufficiently specific, may also arise. And even if the parties agree in the divorce decree to cooperate in procuring the get, if there is a change of heart, the provision may not necessarily be enforceable.
Paul L. Feinstein, a Chicago practitioner with over four decades of experience, practices family law with an emphasis on divorce litigation, consulting, and appeals. Paul is often hired by trial lawyers to handle appeals and to assist them with determining legal strategies and preserving a sufficient record at trial. He has belonged to the American Academy of Matrimonial Lawyers since 1991 and the Appellate Lawyers Association since 2010. He can be reached at (312) 346-6392. View his Divorce Magazine profile.