BREAKING NEWS: IN CHANGE FROM DECADES-LONG STANCE, NEW JERSEY COURTS GRANT SOME RELIEF TO AGUNOS

The New Jersey Appellate Division on Friday granted a monumental win for women statewide who are waiting to receive a get.

For decades, the New Jersey judicial system has been shy of getting tangled up in get refusal disputes, saying that they lack any authority to order a husband to provide a Get to his wife.

In the 1996 case of Aflalo v. Aflalo, plaintiff-wife filed for divorce in civil court and defendant-husband asserted that no matter what occurred in the civil divorce action, he would refuse to consent to provide plaintiff-wife with a Get.

The Appellate Division concluded, "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."

Subsequently, in the 2003 case of Mayer-Kolker v. Kolker, the plaintiff-wife sought a court order that the defendant-husband was to cooperate in obtaining a Get, using the argument that the Ketubah that the parties signed compelled the parties to adhere to Jewish law. 

In that case, Plaintiff-wife argued that the parties entered into a Ketubah, which is a Jewish marriage contract, therefore making the parties’ marriage subject to Jewish law. Defendant-husband, however, asserted that the Ketubah that the parties signed did not automatically convey the parties’ adherence to Jewish law, lacked the requisite specificity for enforcement and was silent on the issue of whether a Get would be granted in the event the parties divorced.

The trial court determined that it did not have the authority to compel the defendant-husband to provide plaintiff-wife a Get.

The Appellate Division affirmed this ruling, reasoning that the plaintiff-wife failed to establish the effect of the Ketubah that the parties entered into and failed to establish the Ketubah’s mandate of Jewish law with regard to enforcement. Additionally, the Court found that "in giving his wife a "get" a husband must "act without constraint." Indeed, during the proceeding the husband is asked "whether he ordered [the "get"] of his own free will." What value then is a "get" when it is ordered by a civil court and when it places the husband at risk of being held in contempt should he follow his conscience and refuse to comply? Moreover, why should this court order such relief when that is something which the Beth Din will not do? If a "get" is something which can be coerced then it should be the Beth Din which does the coercing. In coercing the husband, the civil court is, in essence, overruling or superseding any judgment which the Beth Din can or will enter, contrary to accepted First Amendment principles."

In a just released published decision, the big change in storyline is that the defendant-husband had originally, on his own free will, agreed in court to respond to beis din and to be bound by their decision. The Plaintiff-wife now sought judicial intervention ordering the husband to stick to his agreement.

Plaintiff-wife and defendant-husband married in February 2006. They have four children together. After twelve years of marriage, plaintiff and defendant separated in 2018. Plaintiff filed a civil complaint for divorce in June 2018.

A critical area of the litigation centered on plaintiff's desire to obtain a get.

Prior to trial, the parties tentatively reached an agreement on all issues, including each party's obligations with respect to a beis din proceeding to obtain the get that plaintiff sought. With the consent of both parties, before the final Marital Separation Agreement (MSA) was drafted, the trial court took testimony from defendant to confirm his agreement with respect to the beis din provision. Defendant testified that he would respond to any summons received from the beis din and would be bound by any decision the rabbinical court made regarding the get, which was to be decided by that body in accordance with Jewish law. Defendant further testified that he understood he would be subject to sanctions imposed by the Family Part in the event that he did not cooperate with the beis din.

The MSA was signed by the parties on October 6, 2020 after both parties appeared before the trial court and testified as to their understanding of the MSA, that they were not coerced into signing the MSA and that he believed it to be fair and reasonable under the circumstances. After putting this agreement on the record, the final judgment of divorce was entered.

At a case management conference on December 6, 2021, plaintiff advised the judge that the defendant had not yet gone to Beis Din. The Court entered a case management order stating that "defendant shall participate in the beis din proceedings pursuant to the parties' MSA."

On January 25, 2022, plaintiff moved for enforcement of the Beis Din agreement clause and award of legal fees. Defendant cross-moved, seeking the denial of plaintiff's application, a stay of any order enforcing the Beis Din agreement clause, and any award of legal fees.

On March 25, 2022, the Family Part judge denied defendant's application for a stay, and granted plaintiff's request that defendant be obligated to "participate in the beis din proceedings pursuant to the parties' MSA," and ordered both parties to actively participate in the beis din proceedings by May 31, 2022.

The judge further granted plaintiff's motion for counsel fees related to the enforcement of the court's prior orders, finding that the defendant had acted in bad faith in moving for a stay of the court's enforcement order and by not complying with the court's previous orders regarding his participation in the beis din proceedings.

The defendant then filed an appeal to the Appellate Division.

While this appeal was pending, on May 11, 2022, the parties went to Vaad Hadin V'horaah in New City.

On July 6, 2022, the beis din issued a fifteen-page ruling finding that the husband had not properly responded to the Beis Din, and that he is "obligated to divorce his wife forthright and immediately."

In the Appellate Division proceeding, the defendant, represented pro-se, argued that the trial court had no authority to order him to arbitrate in the beis din; the trial court erred by relying on a "religious document" and by requiring defendant's participation in beis din proceedings; and the trial court violated the First Amendment by ruling on a religious agreement.

Judges Whipple, Susswein and Gummer heard oral arguments on July 18, 2023. In a published ruling just released, they were unpersuaded by the husband's arguments.

"An agreement that resolves a matrimonial dispute is no less a contract than an agreement to resolve a business dispute." The task of the court, then, is to "discern and implement 'the common intention of the parties,' and 'enforce [the mutual agreement] as written.'" J.B. v. W.B.

"A court should not rewrite a contract or grant a better deal than that for which the parties expressly bargained." Quinn v. Quinn citing Solondz v. Kornmehl.

The Court wrote:

We agree with the trial court that nothing in the MSA is unconscionable or contrary to public policy as to render it unenforceable. Both parties were represented by counsel. The parties agreed to and executed the MSA, and both testified they had entered into it voluntarily and free from coercion or duress. On two separate occasions, defendant testified under oath regarding the obligations he agreed to with respect to the beis din proceedings. This was done with full awareness that obtaining a get was extremely important to plaintiff because, absent a get, she would continue to be viewed as married under Jewish law, thereby preventing her from remarrying within her faith.

We are satisfied on this record the MSA is a legally binding contract based on ample consideration from both parties and entered into knowingly and voluntarily. The Family Part judge - who was intimately familiar with this protracted litigation and the litigants - thus had the lawful authority to enforce the agreement as written.

Defendant argues that he agreed in the MSA only to "respond to a summons" issued by the beis din, not to participate in its proceedings. He claims that he complied with his contractual obligations under the MSA when he responded to a beis din summons by asserting that the beis din had no jurisdiction over him. We reject that argument and agree with the trial court that defendant agreed to timely participate in the beis din proceedings, to submit to the jurisdiction of the beis din, and to accept its judgment.

The defendant argues that the trial court violated his First Amendment rights by ordering him to participate in beis din proceedings and to sign an arbitration agreement with the beis din. The First Amendment's Establishment Clause bars a state from placing its support behind a religious belief, while the Free Exercise Clause bars a state from interfering with the practice of religion. It is a fundamental principle that civil courts may not become entangled in religious proceedings.

Our trial courts have not been in complete accord on the issue of whether a civil court has authority to enforce a ketubah—a Jewish marriage contract. In this case, however, the trial court was asked to enforce a civil contract, not a religious one. Nor did the trial court substantively review or affirm the beis din ruling. For purposes of this appeal, the beis din ruling is essentially a report confirming plaintiff's assertion that defendant failed to participate in the beis din proceeding in violation of his obligations under the MSA.

As our Supreme Court has recognized, "civil courts may resolve controversies involving religious groups if resolution can be achieved by reference to neutral principles of law, but that they may not resolve such controversies if resolution requires the interpretation of religious doctrine." Ran-Dav's Cnty. Kosher v. State. The Court specifically noted that "neutral principles may be particularly suited for adjudications of . . . civil contract actions," so long as the dispute does not "involve interpretations of religious doctrine itself."

Defendant agreed in the MSA to abide by the beis din ruling, whatever that might be. In enforcing that agreement (to go to beis din), the trial court in no way interpreted religious doctrine. The orders entered in this case scrupulously avoid entanglement with religion because the trial court applied well-established principles of civil contract law, not rabbinical law. The latter body of law remained solely within the province of the beis din and was not interpreted or applied by the Family Part judge, nor by us.

The United States Supreme Court has recognized that the Establishment Clause is violated where there is clearly no secular purpose for the state action being challenged and the "activity was motivated wholly by religious considerations." Lynch v. Donnelly. In this instance, the orders defendant challenges served the secular purpose of enforcing the parties' contractual obligations under the MSA, which in turn serves the secular purpose of encouraging divorce litigants to resolve their disputes by negotiating and entering an MSA. Accordingly, the trial court did not violate defendant's constitutional rights by ordering him to fulfill his contractual obligation under the MSA to sign an arbitration agreement implementing the results of the independent beis din proceedings.

Lastly, we address defendant's contention the trial court abused its discretion by awarding counsel fees to plaintiff. The record makes clear the trial court awarded counsel fees based on defendant's noncompliance with the MSA. We have no basis upon which to overturn or modify the trial court's decision to grant plaintiff's request for counsel fees.

This case ruling is "published," which means that it sets a legal precedent and can be cited in future cases. 

The legal precedent that this case establishes is that the Family Part judge did not violate the husband's First Amendment rights by ordering him to sign an arbitration agreement with the beis din, to participate in beis din proceedings, and to abide by the beis din ruling, whatever that might be, because the Family Part judge was asked to enforce the MSA which the parties entered into knowingly and voluntarily and is a civil contract, not a religious one.

The court concluded that the orders defendant challenges served the secular purpose of enforcing the parties' contractual obligations under the MSA, which in turn serves the secular purpose of encouraging divorce litigants to resolve their disputes by negotiating and entering an MSA.

Importantly, the Court did not make any determination as to the legal standing of Beis Din's psak, as they were not specifically asked to do so.

The psak "remained solely within the province of the beis din and was not interpreted or applied by the Family Part judge."

As the Court did not actually affirm Beis Din's psak, it appears that the decades-long standing rulings that seeking to order a man to go to Beis Din to give a get (when he never agreed to go to Beis Din on his own free will) can not actually be enforced in court because that would be "contrary to accepted First Amendment principles."

Additionally, because the Court did not actually affirm Beis Din's psak, it is not clear from this ruling whether, even in a case where the man did enter into a MSA agreeing to go to Beis Din, and then the Beis Din issued a psak saying that he needs to give a get, if such a ruling could then be enforced in court or if the court might agree that such enforcement of a "religious order" could be "contrary to accepted First Amendment principles" and "entanglement with religion." (I.e. One could still present legal challenges against the validity of the actual psak).

The only legal conclusion that this case does establish is that in an instance where the parties freely enter into a MSA which includes a provision of agreeing to submit to the jurisdiction of Beis Din "and to abide by the beis din ruling, whatever that might be," the Court does have standing to enforce such an agreement, irrespective of First Amendment arguments or arguments of entanglement with religion.

Either way, this story is yet another reminder how imperative it is to seek out professional help from experienced Toanim and Lawyers prior to entering into any agreements including arbitration provisions.

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