It seems that every decision after trial rendered by Kings County Supreme Court Justice Jeffrey S. Sunshine is a divorce law treatise. His July 4, 2012 decision in Mojdeh M. v. Jamshid A. is no exception.
In addition to issues of property division, spousal maintenance for the husband, child support, and insurance, Justice Sunshine also considered the husband’s refusal to provide his wife with an Islamic divorce.
The parties were born in Iran and married in the Islamic faith. After 11 years of marriage, with one child, the wife commenced this action for divorce in 2007. In 2008, the wife was granted a divorce on the grounds of constructive abandonment after a grounds trial.
At the current trial before Justice Sunshine to determine the issues ancillary to the secular divorce, the wife testified that she had repeatedly asked her husband, both in person and by email, to accompany her to a mosque to obtain a religious divorce. The wife advised the Court that in accordance with the parties’ religious practices in the Islamic faith, the only way the parties can obtain a religious divorce is for he husband to accompany the wife to a mosque where “… there is a gentleman or lady that will read some part of the Koran that we are divorced. So it’s going to be transported to [her] birth certificate” thereby officially divorcing the parties.
The wife also testified that in the Islamic faith, until her birth certificate reflects her religious divorce, she will be unable to remarry. In addition, without a religious divorce, the wife testified that were she to travel to Iran, the husband could legally withhold his permission for her to leave Iran indefinitely. The wife asserted that she would have no remedy; a civil judgment of divorce would bear no impact in this situation.
Despite the wife’s efforts, the husband would not participate in this process. He simply stated “no comment. I have to talk to my lawyer.”
The wife requested that in consideration of the husband’s failure to provide the wife a religious divorce, the husband be barred from equitable distribution and maintenance. The husband contended that the issue of the religious divorce should have no impact on his award of maintenance or equitable distribution.
The Court held that the misuse of the unequal allocation of power between spouses to terminate a religious marriage can be taken into consideration when determining equitable distribution. Justice Sunshine noted that Domestic Relations Law §236[B][h] authorizes the court to consider the effects of a barrier to remarriage of one of the spouses when determining equitable distribution.
[The subdivision] was enacted … to codify and to prevent one spouse from using the requirement of voluntarily removing barriers to remarriage as financial leverage against the other spouse and conceding them to secure an agreement that barriers will be removed.
The section, added in 1992, codified the then seminal Supreme Court decision which characterized the husband’s refusal to give a “Get,” a Jewish divorce, as another “factor” to take into consideration when determining the distribution of assets between parties (Schwartz v. Schwartz, 153 Misc.2d 789, 583 N.Y.S.2d 716 [Kings Co. Supreme Ct. 1992 (Rigler, J.)]). In 1997, the Appellate Division affirmed the decision and held that the former husband forfeited any right to distributive awards due to his initial refusal to give his wife a Get (Schwartz v. Schwartz, 235 A.D.2d 468, 652 N.Y.S.2d 616 [2 Dept. 1997]).
D.R.L. §253 defines barrier to remarriage as including, without limitation, any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party’s commission or withholding of any voluntary act.
Justice Sunshine credited the wife’s testimony that she had made arrangements for the parties to meet at a local mosque to address the religious divorce, but that the husband simply did not respond. The Court found that the husband had his own agenda.
This led Justice Sunshine to find that the husband’s refusal to give the wife a religious divorce was a basis for the Court to exercise its discretion under Domestic Relations Law 236[B][h] to disproportionately distribute marital assets. Justice Sunshine gave the husband 45 days from the date of this decision to take any necessary steps to remove any barriers to the wife’s remarriage. In the event that the husband failed to comply, the husband forfeited the (very limited) maintenance and equitable distribution awards which the Court also made in the decision.