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A recent Second Department decision is adding some confusion to the already complex issues relating to Get refusal and the court’s ability to alter the disposition of a case or condition terms on a party’s refusal to remove barriers to the other’s remarriage. The problem of the agunah, the Jewish woman whose husband refuses to give her a Get, a religious writ of divorce, thus forcing her to remain chained to a dead marriage, continues to engender enormous debate in the Orthodox Jewish community and disagreement in Civil Courts. In a recent decision, Cohen v. Cohen, 2019 NY Slip Op 03765 (2d Dept. May 15, 2019), the Appellate Division vacated a second amended judgment of divorce which, inter alia, conditioned a defendant’s distribution of his equitable portion of the marital estate on his requirement to give the plaintiff a Get and, thus, remove barriers to her remarriage. In so holding, the Appellate Division, relying on Domestic Relations Law §253, reasoned that since this statute does not require a defendant to provide the plaintiff with a Get, the lower court should not have “directed” the defendant to give a Get to the plaintiff. Domestic Relations Law §253 specifically references the plaintiff’s responsibility to do so, as the party who commenced the action. As such, the court held that the penalties imposed on the defendant due to his failure to give a Get must be vacated.

A most basic rule in Jewish law (see Hilchot Gittin) is that a Get must be given by the husband and received by the wife, of one’s own free will. If the husband is coerced, the Get is invalid. One could argue that when the court compelled the defendant in Cohen to give a Get, it was tantamount to a forced Get. This could be interpreted to render the Get invalid and, as such, not help a chained woman at all.

When analyzing the Cohen case, it is important for us to first look at the exact language of the statutes that empower the courts to consider a party’s failure to remove barriers to the other’s remarriage in the disposition of a divorce action. The decision in the Cohen case cites Domestic Relations Law, §253, which directs that a plaintiff to an action must sign a sworn statement swearing to remove barriers to the other party’s remarriage. As mentioned above, this is not applicable to a defendant in an action for divorce. Rather, the plaintiff, by filing an action in a civil court and seeking to avail himself or herself of such rights, asserts in such action that he/she will also remove barriers to the other’s remarriage. The defendant is not bound by the same obligation. It is clear from the legislative history that the enactment of the Domestic Relations Law §253 requirement of the removal of barriers to remarriage was a response to the unfairness that results when a religious person requires more than just a civil divorce to allow him/her to remarry and that freedom is in the hands of a person that he/she is divorcing.

Not mentioned in the Cohen decision, however, are Domestic Relations Laws §236(B)(6)(o) and §236(B)(5)(h). Domestic Relations Law §236(B)(5)(h) provides inter alia as follows: “In any decision made pursuant to this subdivision the Court shall, where appropriate, consider the effect of a barrier to remarriage … on the factors enumerated in paragraph d of this subdivision” This provision codified a prior court decision which characterized a husband’s refusal to give a Get as another “factor” under Domestic Relations Law §236(B)(5)(d)(14) to take into consideration when the court determines the equitable distribution of marital assets. Domestic Relations Law §236(B)(6)(o) similarly states with regard to post divorce spousal maintenance: “In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage …”

As such, while the statute does not actually require a court to require the defendant to remove barriers to remarriage, it provides ramifications if not. In our opinion, the court was correct when it held that the lower court could not “require” the defendant to remove all barriers to remarriage; however, it is not clear to these humble practitioners why there was no mention or possibility of applying the provisions of §236 in order to balance the harsh consequence that the plaintiff in the Cohen case bore as a result of the defendant’s refusal to remove barriers to her remarriage and give her a Get. Prior case law, as codified in the statute, empowers the court to consider this in their decision regarding the disposition of assets and post-divorce maintenance. So why didn’t that happen here?

To delve deeper into our analysis of what happened here and of what options the plaintiff could have tried to avail herself in order to attain the relief she was seeking, we look back at other precedent such as Mizrahi-Srour v. Srour, 138 A.D.3d 801 (2d Dept. 2016), where the Second Department upheld the provision increasing the durational maintenance award to the plaintiff to “adjust for the adverse economic consequences which would result to her from the defendant’s refusal to grant her a Get.” That court went on to hold that this was not an impermissible interference with religion. Even in Masri v. Masri, 2017 NY Slip Op 27007 (Sup. Ct. Orange County 2017), where the Orange County Supreme Court strayed from the civil precedent and case law and refused to award maintenance to a young woman until such time as her husband gave her a religious divorce, the Masri court did recognize that a previous state appellate case had upheld the constitutionality of the statutory provision where the husband has withheld a Get to extract concessions from the wife in the matrimonial litigation and that consideration of a husband’s refusal to provide his wife a Get in fashioning awards of maintenance or equitable distribution is not an impermissible interference with religion in circumstances where the husband has withheld the Get solely to extract economic concessions, or where an adjustment was needed to redress adverse economic consequences resulting from the wife’s failure to obtain the Get.

Courts rarely apply law sua sponte without formal prompting from the practitioners or parties to an action. Practitioners are warned to educate themselves in all aspects of the law as it pertains to the relief that their clients are seeking. We must be armed with all of the possible legal arguments and bases to try to accomplish the goals of our clients and accomplish the relief they are due. Most importantly, we must equip the court with such information and law that they need in order to make appropriate and just decisions.

Esther M. Schonfeld is a founding partner and Alexandra Weaderhorn is an associate of Schonfeld & Goldring, with offices located in Cedarhurst, N.Y. The firm limits its practice to divorce law, family law, and matrimonial law in both secular courts and rabbinical courts.