Second Department Muddies the Religious Divorce Waters
A New York appeals court recently vacated a decision which essentially penalized an Orthodox Jewish husband for not giving his wife a certificate of divorce.
Syracuse, NY -- (ReleaseWire) -- 07/22/2019 --As such, she was unable to remarry within the faith. In Cohen v. Cohen, the trial court withheld the husband's marital property share until he gave his wife a Get. He refused to do so. The Second Department overturned that portion of the divorce order, relying on Section 253 of the Domestic Relations Act. This provision states that a defendant in a divorce action is not required to remove all barriers to remarriage for the other party.
Under the Hilchot Gittin, a husband must voluntarily give a Get to his wife, or else it is invalid.
Arguably, the judge's order to issue a Get violated this principle, so a Get under these circumstances may not be valid anyway. "For the most part, in 21st century America, marriage and divorce are both civil ceremonies which are devoid of any religious significance," remarked Syracuse family law attorney Richard J. Bombardo. "But that is not always the case, and Orthodox Jewish divorces are a good illustration of this overlap."The grounds for divorce are a good example as well. In New York, most petitioners ask for divorce based on irreconcilable differences. That means the marriage has hopelessly gone off the rails and it is neither party's fault. Yet sometimes, for religious or family reasons, a spouse needs a judicial declaration of adultery, abandonment, cruelty, or other fault. Many states have eliminated these options, but they are still available in New York.
In these cases, if people have a divorce "on their record," so to speak, remarriage is usually not impossible.
It is just awkward and comes with a social or religious stigma. But that's not the situation for Orthodox Jews. These individuals believe that marriage is both a civil and religious ceremony. A judge can dissolve the legal marriage, but not the spiritual one. Only a Get can do that. If the husband refuses to issue one, the wife could be in a serious predicament.
Many Muslims hold similar beliefs. Yet in these cases, the situation is different.
If the husband refuses to issue a religious divorce, the wife can approach a local Shariah Council. There is no such option for Orthodox Jewish women. To overcome these problems, we normally include language from Domestic Relations Law §236(B)(6)(o) and §236(B)(5)(h).
Section §236(B)(5)(h) states that the court may consider a remarriage barrier in the property division settlement. In other words, if the husband condemns the wife to perpetual singleness, the marital property division must reflect that status. Section 236(B)(6)(o) contains similar language.
The Get's voluntariness might still be an issue, but in most cases, the husband signs a document or otherwise indicates that the Get was voluntary.
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