According to Jewish law, God prescribed both the way to unite souls in marriage and gave instructions how those souls can be severed. While Jewish law requires one to follow the law of the land, and thus a civil divorce is required, that civil divorce cannot serve as a substitute for a halachic (conforming to the strictures of Jewish law) divorce, the “get.” Without a get, no matter how long the couple is separated, and regardless of civil law documents, in the eyes of Jewish law the couple is still married. As reported at Chabad.org:
“According to biblical law, a married couple is released from the bonds of matrimony only through the transmission of a bill of divorce from the husband to the wife. This document, commonly known by its Aramaic name, “get,” serves not only as a proof of the dissolution of the marriage in the event that one or both wish to remarry, it actually effects the divorce.”
To appreciate the scope of the problem, note, for example, that in December, 2015 70-year old Rabbi Mendel Epstein of Brooklyn (pictured), dubbed “The Prodfather,” was sentenced to 10 years in jail after he was convicted of charging wives thousands of dollars to torture their husbands into delivering a get. See, NY Daily News.
In 1983, New York enacted Domestic Relations Law §253 to address husbands who withhold the get. That section, in combination with DRL §236(B)(5)(h), and DRL §236(B)(6)(d) empowers a court to direct specific performance of a Ketubah (the marriage contract) or other agreement by which a husband previously agreed to provide a get to his wife. Civil contempt sanctions are available for non-compliance. Additionally, for withholding a get, the court may deny a husband any right to equitable distribution of the marital estate and/or award the wife maintenance at a level designed to encourage compliance. If the husband is the plaintiff, the court may also deny him a civil divorce.
In its April 13, 2016 decision in Mizrahi-Srour v. Srour, the Appellate Division, Second Department, affirmed Kings County Supreme Court Justice Esther M. Morgenstern‘s award to the wife of maintenance of $100 per week for five years, which would be increased to $200 per week if the husband did not provide a get to the wife within 60 days, and also distributed to the wife 70% of the marital assets, and awarded counsel fees.
The parties had been married in 1996, and have four children, born between 1998 and 2008. In October, 2009, the wife commenced this divorce action on the ground of cruel and inhuman treatment (a pre-no-fault case).
During the marriage, the parties owned and operated a business together. When the husband failed to comply with discovery demands, the wife sought preclusion. An order for the appraisal of the business was entered, with the husband to pay its cost. He failed to do so, and continued to fail to comply with discovery demands. As a result, the husband was precluded from introducing certain evidence of business finances.
The Second Department upheld the preclusion order. The appellate court also upheld imputing $72,486 in annual earnings to the husband, based upon his prior income, and its determination that the husband’s account of his finances was incredible.
The wife was awarded durational maintenance of $100 per week for five years, which would be increased to $200 per week if the husband did not provide a get to the wife within 60 days, and child support of $401.21 per week, which would be reduced to $370 per week if the maintenance increased to $200 per week.
The provision increasing the durational maintenance award to the plaintiff by $100 per week to adjust for the adverse economic consequences which would result to her from the defendant’s refusal to grant her a Get was proper and was not an impermissible interference with religion.
Moreover, the Second Department upheld Justice Morganstern’s decision to award the wife 70% of the known marital estate, which consisted of the marital residence, two life insurance policies, and retirement funds, in consideration of the economic misconduct of the husband and his frustration of any attempt to value the family business, which he apparently abandoned. The record supported Justice Morganstern’s finding that the husband dissipated marital assets by choosing to abandon the business until the litigation concluded.