Long Island Family Law and Mediation Blog
New York has a history of having a concentrated population of Jewish people who observe Jewish law. Currently, observant Jews who want to be divorced must effectuate a divorce that is valid under both Jewish law and New York state law, or they can choose not to marry under secular law and not be concerned with the way these two different systems intersect. Jewish law recognizes private marriages and private divorces that do not require court supervision.
However, Jews bound by both religious law and secular law are in a more difficult position when trying to obtain a divorce. One way in which the Orthodox community in New York ensures that traditional Jewish values are part of divorce proceedings is to use prenuptial agreements that are signed by both parties, allowing determinations to be made by the Beth Din of America, which is the largest rabbinical court in the United States.
In the 1983 case of Avitzur v. Avitzur, a New York court considered the enforceability of the Ketubah entered into as part of the religious marriage ceremony. The Ketubah is supposed to show the bridegroom’s intent to cherish the wife and provide for her, as well as the wife’s willingness to carry out her obligations according to Jewish law. The couple agreed to recognize the Beth Din of the Rabbinical Assembly and a Jewish seminary to have authority to counsel them and impose compensation as it saw fit for failing to respond to its decision appropriately.
The husband was granted a divorce on the ground of cruel and inhumane treatment in 1978. However, the wife was not considered divorced and couldn’t remarry under Jewish law until a Jewish divorce decree called a “Get” was granted. The couple had to appear before a rabbinical tribunal to obtain a Get. The wife tried to bring the defendant before the tribunal under the provision of the Ketubah that recognized the tribunal’s authority to counsel them. The husband refused so that the plaintiff couldn’t get a religious divorce.
The plaintiff sued in civil court to enforce the agreement on the basis that the Ketubah was a marital contract that the defendant had breached by refusing to appear before the tribunal. She sought to compel the husband’s specific performance on the contract. The husband moved to dismiss, and this motion was denied.
Initially, an appellate division found it was a religious covenant or liturgical agreement not within the jurisdiction of civil courts. However, the New York Court of Appeals held that public policy did not stop the courts from enforcing the secular terms of the agreement. It found that the agreement referred the matter of the religious divorce to a nonjudicial forum. It found that the contractual agreement was analogous to a prenuptial agreement or antenuptial agreement to arbitrate a dispute. It reasoned that a duly executed antenuptial agreement by which the parties agree to a particular resolution of disputes would be valid and enforceable.
The court’s main concern was whether the enforcement of the agreement violated New York law or public policy. The husband argued that enforcing the Ketubah would violate the constitutional prohibition against intervening in matters of religious doctrine. The court agreed that courts couldn’t resolve controversies in a manner that requires them to make determinations of religious doctrine. However, just because the agreement was entered into as part of a religious ceremony did not make it unenforceable.
The plaintiff asked the court simply to compel the defendant to perform a secular obligation of going before the religious tribunal as he had promised. Since there was no doctrinal issue or implementation of religious duty or interference with religious authority, the court agreed it could compel the defendant to go before the religious tribunal. Nothing the tribunal would do would affect the civil divorce. However, to the extent that there was an enforceable agreement under regular contract law, the plaintiff was entitled to the relief she sought.
In the 2010 case of Schwartz v. Schwartz, the court affirmed the principles outlined in Avitzur, explaining that a husband could be held in contempt of court for failing to comply with an earlier agreement to go before the Beth Din so that the wife could try to obtain a Get, since it could be decided upon the application of neutral principles of law without referring to religious doctrine.
If you are trying to enforce a marital agreement involving Jewish law or any others during a divorce in New York, contact the Law and Mediation Office of Darren M. Shapiro at 516-333-6555 or via our online form. Our principal Darren Shapiro is an experienced, compassionate family law attorney and mediator.
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