Although we can finally say that there is “marriage equality” in New York with the recent passing of the Marriage Equality Act, there is at least one class of New Yorkers who have yet to enjoy “divorce equality.” Specifically, there are a substantial number of New Yorkers who, though able to obtain a civil divorce from their spouse, are unable to obtain a religious divorce. This predicament effectively leaves these unfortunate individuals—at least according to their own traditions—married indefinitely.

This issue is prevalent and perhaps most-commonly associated with the plight of the Orthodox Jewish woman whose husband refuses to provide her with a Jewish divorce, otherwise known as a Get. Under Jewish law, a Get terminates the Jewish marriage and certifies that the couple is now free to remarry. For a Jewish couple to become divorced under Jewish law, the man must give the woman a Get. A Jewish woman who is unable to obtain a Get becomes an “agunah” or a “chained woman” within the Jewish faith. As an agunah, she is not permitted to remarry or date. Similarly, if a Muslim woman or member of the Catholic Church does not obtain a religious divorce from their husband, they too will be unable to remarry according to their traditions.

As matrimonial practitioners are all too aware, it is not uncommon for a recalcitrant husband to withhold the issuance of a religious divorce to his wife as a means of leveraging a more favorable (if not, exploitative) settlement for himself. Unfortunately, having little or no power to negotiate a fair resolution of this issue, and desperate to move on with their lives, many women are often forced to either pay or relinquish rights to a substantial sum of money in exchange for a religious divorce.

Legislative Background

Unfortunately, Domestic Relations Law (DRL) §253, which was enacted in part because our legislature recognized that there were spouses using their control over the issuance of a religious divorce as a form of economic coercion (or simply as a means of punishing their spouse for commencing an action for divorce), does not fully resolve the issue. Section 253 provides, in pertinent part, as follows:

2. Any party to a marriage defined in subdivision one of this section who commences a proceeding to annul the marriage or for a divorce must allege, in his or her verified complaint: (i) that, to the best of his or her knowledge, that he or she has taken or that he or she will take, prior to the entry of final judgment, all steps solely within his or her power to remove any barrier to the defendant’s remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.

3. No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement: (i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.

The problem with this statute is rather glaring: It requires only that a plaintiff “remove barriers” to the defendant’s remarriage, and not the reverse.1

To address this issue, in 1992 the legislature enacted DRL §236[B][5][h], which states that:

[i]n any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of barrier to remarriage as defined in subdivision six of section two hundred fifty-three of this article, on the factors enumerated in paragraph d of this subdivision.

This section was added to the equitable distribution statute to specifically authorize matrimonial courts to consider the effects of a barrier to remarriage of one of the spouses when determining the equitable distribution of marital assets.

Courts Take Action

Since the enactment of §236[B][5][h], our courts have been more aggressive and proactive in dealing with spouses who seek to withhold a religious divorce from their spouse.

For example, in Kaplinsky v. Kaplinsky, 198 A.D.2d 212 (2d Dept. 1993), the Appellate Division, Second Department, affirmed the trial court’s decision to hold the former husband in contempt of court for his failure to deliver a Get to his former wife in accordance with the terms of their stipulation of settlement and imposed a term of imprisonment and withholding of economic benefits from the former husband until he purged himself of his contempt.

Similarly, in the matter of Schwartz v. Schwartz, 235 A.D.2d 468 (2d Dept. 1997), the Second Department upheld Kings County Judge William Rigler’s determination that the defendant husband “forfeited” his right to any distributive award because of his “conduct involving the granting of a Get.”

Likewise, in Pinto v. Pinto, 260 A.D.2d 622 (2d Dept. 1999), Judicial Hearing Officer Marilyn Friedenberg awarded the plaintiff wife 100 percent of the property listed on the parties’ statements of net worth if the husband did not grant her a religious divorce within a specified time period.

Another recent decision addressing this issue came down in June 2012, when Judge Jeffrey Sunshine of the Supreme Court, Kings County, in his decision after trial, gave the husband 45 days from the date of the decision to “take any necessary steps to remove any barriers to the wife’s remarriage.” Sunshine further directed that if the recalcitrant husband fails to comply with his order, he shall forfeit the maintenance and equitable distribution award provided to him. Mojdeh M. v. Jamshid A., 2012 NY Slip Op 51236(U), NYLJ 1202559132207, at *1 (Kings County, June 4, 2012).

Although these decisions are praiseworthy, they are not enough to guarantee smooth passage to a religious divorce for all. Specifically, in Schwartz, Pinto and Mojdeh, there was either assets available for distribution or support to be paid. As such, the court had the ability to impose financial consequences on the husband based upon his refusal to remove the barrier to his spouse’s remarriage.

However, not every litigant has the money to pay an attorney to go to trial and not every case involves assets at issue that a court can distribute in such a manner as to penalize a party who withholds a religious divorce from his spouse. For these unfortunate litigants, there appears to be little if any means by which a recalcitrant spouse might be deterred from withholding a religious divorce from their spouse for pecuniary gain.

Future of Religious Divorce

To remedy this issue, individuals are turning to prenuptial agreements, and religious leaders are advising their members to execute such. The basic idea behind this approach is to have parties sign a contract prior to marriage that contains financial penalties to the recalcitrant spouse if one spouse refuses to remove the barrier to the other spouses’ remarriage.2 By executing a prenuptial agreement, individuals stand to save countless sums of money on litigation expenses, avoid a tremendous amount of emotional distress that comes along with the uncertainty of whether they will receive a religious divorce, and, because there are penalties for refusing to comply with the contract, they help provide for a level playing field when negotiating the resolution of a divorce. Based on the foregoing, the prenuptial agreement should become more widespread and commonplace among individuals dependent on their spouse to remove a religious barrier to remarriage.

Although the prenuptial agreement, on its surface, appears to be the remedy to divorce inequality, unfortunately it is not the perfect resolution for everybody since there often are emotional hurdles parties must overcome before discussing, let alone signing, a prenuptial agreement. Put another way, when people are planning what is otherwise supposed to be the happiest day in their life, they often do not want to address issues that might arise in the event of their divorce.

In addition, not all religious leaders and individuals have embraced the concept of altering the traditional wedding ceremony to include the execution of a prenuptial agreement. To that end, although some religious groups, such as the Bet Din of America, require the execution of a prenuptial agreement before a marriage ceremony will be performed, not all do.3 As a result of the foregoing issues, with the divorce rates rising among religious groups where divorce was once unthinkable, the ranks of “chained women” in New York have grown and, unfortunately, will likely continue to grow.

As indicated above, advocates of divorce reforms have made some compelling breakthroughs in recent years. However, as this article demonstrates, there is still plenty of room for more progress and public awareness before there will finally be “divorce equality.”

Michael F. Beyda is a partner with Chemtob Moss Forman & Talbert, a matrimonial law firm in New York City focusing on the practice of Divorce, Family and Matrimonial Law.

Endnotes:

1. The court cannot compel a defendant to act within the religious realm and provide a religious dissolution of the parties’ marriage if he is not the plaintiff and has not filed a counterclaim for divorce.

2. A postnuptial agreement can be signed by couples who wish to enter into the agreement after they are already married.

3. In 2006, the Rabbinical Council of America passed a resolution declaring that rabbis should not officiate at a wedding where a proper prenuptial agreement has not been executed.