Imposing a higher maintenance obligation on an Orthodox Jewish husband who refused to give his wife a religious divorce (“Get”) would violate constitutional protections. So held Orange County Acting Supreme Court Justice Catherine M. Bartlett in the January 13, 2017 decision in Masri v. Masri.

The parties married in 2002, separated in 2007 and have lived separate and apart since that time. They have 14 and 11 year-old children, the older one being disabled. The wife commenced the present action for a no-fault divorce March 8, 2016.

Since the separation, the wife has attempted without success to secure from the husband a “Get”, which she requires under Jewish law in order for her to remarry. The husband refused to participate in proceedings in 2012 before a Rabbinical Court, asserting that the wife had waived her right to rabbinical arbitration by previously going to a secular court (the divorce judgment in which had been vacated). The Rabbinical Court advised the husband that he had no power to decide the issue of the wife’s alleged waiver on his own, and was required to arbitrate that issue before the Rabbinical Court. The husband refused to comply, whereupon the Rabbinical Court declared him to be a “Rabbinical Court evader.”

The wife is now 33 years of age and in good health. She is employed as a teacher’s aide with a gross income of $18,000.00 annually. The husband is 33 years of age, and although he claimed that he was unemployed, the husband did not respond to the wife’s discovery demands and trial subpoena, and credit card statements and rental car records evidenced undisclosed financial resources and employment on the husband’s part.

Justice Bartlett noted that the amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and that its overriding purpose is to give the spouse economic independence. It should be awarded for a duration that would provide the recipient with enough time to become self-supporting.

This matrimonial action, commenced on March 8, 2016, was governed by the amended Domestic Relations Law (“DRL”) §236B(6) effective January 23, 2016.

DRL §236B(6)(c), as amended, established a formula for determining “the guideline amount of post-divorce maintenance.” Section (f)(1) established an “advisory schedule” for determining the duration of post-divorce maintenance. Whether or not the court uses the advisory duration schedule, it must per Section (f)(2) consider the discretionary (e)(1) factors in determining the duration of post-divorce maintenance.

Moreover, DRL §236B(6)(o) provides that where appropriate, the court should consider the effect of a religious barrier to remarriage.

Here, the wife advised the Court that until such time as the husband gives the wife a Get, even if the wife has a secular judgment of divorce, she will still be considered married to the husband. She has no ability to remarry, nor can she have children from another relationship. If she violates this law, she is considered an adulteress, and a child born to such a “married” woman from a subsequent relationship is deemed to be a “mamzer.”

A “mamzer” is forbidden to marry another Jew, and the “mamzer” may also not marry a Gentile, as he/she is still considered to be a Jew — a “mamzer” is permitted to marry only another “mamzer.” Furthermore, progeny of “mamzerim” are also considered “mamzerin” for four subsequent generations, and they, too, are forbidden to marry anyone other than mamzerim. This stigma is imposed on all descendants of a woman who gives birth to the child of a man while still married to her previous husband, and all her offspring are condemned to live on the sidelines of Judaism. Thus, traditional observant Jewish women like the the wife cannot and will not remarry, or even date, without first having obtained a Get from their husband. A woman who is unable to obtain a Get is loosely termed an “Agunah,” which means a chained woman. See Jewish Divorce Basics.

The wife invoked DRL §236B(6)(o) to urge the Court to award non-taxable spousal support until such time as the husband gives the wife a Get.

Justice Bartlett concluded that by invoking DRL §236B(6)(o), the wife was asking, in essence, that the Court apply financial pressure on the husband to induce him to provide the desired Jewish religious divorce. Accordingly, the wife’s proposal raised unavoidable First Amendment concerns. The First Amendment to the United States Constitution provides inter alia that Congress “shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The Attorney General was given notice of the issue in this case, but declined to intervene.

Justice Bartlett reviewed New York’s caselaw on the issue. In Avitzur v. Avitzur, 58 N.Y.2d 108, cert. denied 464 U.S. 817 (1983), the Court of Appeals addressed “the question of the proper role of the civil courts in deciding a matter touching upon religious concerns.” In that case, the Court enforced the parties’ binding prenuptial agreement — entered into as part of a Jewish wedding ceremony — to arbitrate any post-marital religious obligations before a specified rabbinical tribunal. Justice Bartlett noted that there, the wife was not attempting to compel the husband to obtain a Get or to enforce a religious practice arising solely out of principles of religious law. She merely sought to enforce an agreement made by the husband to appear before and accept the decision of a designated tribunal.

On the logic of Avitzur, the Second Department has enforced separation agreements and stipulations of settlement in which the spouses have agreed to obtain or cooperate in obtaining a religious divorce, either by imposing contempt remedies or by withholding civil economic relief.

However, Justice Bartlett noted that in this case, unlike in Avitzur and its progeny, there was no agreement or stipulation concerning the obligations of the parties with respect to a Jewish religious divorce [although it is not then clear on why the religious tribunal found Mr. Masri to be a “Rabbinical Court evader”]. Thus, here, Justice Bartlett was required to consider the constitutionality of a court’s compelling a party to a civil divorce action to seek or obtain a religious divorce.

The Court did note that the Second Department had gone so far as to hold, in effect, that consideration of a Jewish husband’s providing his wife a Get — or not — in fashioning awards of maintenance or equitable distribution is not an impermissible interference with religion in circumstances where the husband has withheld the Get solely to extract economic concessions, or where an adjustment was needed to redress adverse economic consequences resulting from the wife’s failure to obtain the Get. See, Mizrahi-Srour v. Srour, 138 A.D.3d 801 (2d Dept. 2016); Pinto v. Pinto, 260 A.D.2d 622 (2d Dept. 1999); Schwartz v. Schwartz, 235 A.D.2d 468 (2d Dept. 1997).

Justice Bartlett stated that the Second Department’s ruling in Schwartz (and in Pinto, to the extent that it is truly founded on Schwartz) is “unexceptionable.” The withholding of a Get to extort financial concessions from one’s spouse constitutes simony, i.e., an exchange of supernatural things for temporal advantage. When the husband himself so unambiguously subordinates his religion to purely secular ends, he may properly be said to have forfeited the protective mantle of the First Amendment, and the court may, quite rightfully and without constitutional hindrance, impose the secular remedies authorized by the Domestic Relations Law.

Here, however, Justice Bartlett pointed out, there was not the slightest evidence that the husband has withheld a Get from the wife to extract concessions in matrimonial litigation or for other wrongful purposes.

Justice Bartlett felt the Second Department’s ruling in Mizrahi-Srour went beyond Schwartz. There was no intimation on the face of the Court’s opinion that the husband there was abusing his religiously grounded authority to withhold a Get. That his (presumably) legitimate exercise of this religious prerogative resulted in adverse economic consequences to his wife was evidently sufficient in that Court’s view to warrant the application of Domestic Relations Law remedies, in the face of a “free exercise” challenge, to adjust for said adverse economic consequences. However, the Mizrahi-Srour Court supplied no constitutional analysis in support of its conclusion that increasing maintenance on account of the husband’s failure to provide a Get “was not an impermissible interference with religion.”

Justice Bartlett noted that the First Amendment concerns implicated by DRL §236B(6)(o) and Mizrahi-Srour were considered in a New Jersey decision in Aflalo v. Aflalo, supra, 295 N.J. Super. 527 (Chancery 1996). The Aflalo court observed that to pass muster under the Free Exercise Clause, a law must have both a secular purpose and a secular effect. A law must not have a sectarian purpose; it must not be based upon a disagreement with a religious tenet or practice and must not be aimed at impeding religion. Moreover, the Aflalo court noted that it may seem “unfair” that [the husband] may ultimately refuse to provide a “get”. But the unfairness comes from [the wife’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 [the husband] does not provide her with a “get” she must remain an “agunah”. That was [the wife’s] choice and one which can hardly be remedied by this court.

It is clear from the legislative history that it was precisely this purported “unfairness” of a Jewish husband’s refusal to provide a Get that drove the enactment of the DRL §253 requirement of removal of barriers to remarriage.

Justice Bartlett held that in the circumstances presented here, increasing the amount or the duration of the husband’s post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give the wife a Jewish religious divorce or “Get” would violate the First and Fourteenth Amendments to the United States Constitution. There was no evidence that the husband has withheld a Get to extract concessions from the wife in matrimonial litigation or for other wrongful purposes.

The religious and social consequences of which the wife complains flow not from any impropriety in the husband’s withholding a “Get”, but from religious beliefs to which the wife no less than the husband subscribes. Justice Bartrlett held that to apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce the husband to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment.

The court accordingly declined the wife’s invitation to apply DRL §236B(6)(o) in determining the husband’s maintenance obligation.

The Court imputed to the husband gross income in the amount of $75,000.00 per annum. Applying the statutory guideline for post-divorce spousal maintenance to the parties’ income, spousal maintenance owing from the husband to the wife would be $9,696.00 per annum for a minium of 2.1 years and a maximum of 4.2 years. In accordance with the post-divorce maintenance guidelines, the Court fixed the husband’s maintenance obligation at $9,696.00 per annum, taxable to the wife and tax-deductible by the husband, for a period of four (4) years, and finds that this guideline obligation is neither unjust nor inappropriate in light of the factors set forth in DRL §236B(6)(e)(1).

Comment: Inasmuch that the Rabbinical Court already determined that he failed to honor his religious or ketubah (marriage contract) obligations, it is unclear why Justice Barnett did not apply the Avitzur rationale.

Moreover, it appears that the husband has taken the position that despite the civil divorce decree, he and his wife remain married. Should he not be estopped from complaining that a civil court mandate that he support his wife until they are divorced and she is free to remarry?

Still further, perhaps of greater concern would be any attempt by a civil court to determine whether a religious tenet is being asserted in good faith or to obtain an economic advantages. For a civil court to determine a party’s religious state of mind or the bona fides of belief would appear a significant constitutional offense.

For a court to adjust maintenance to be consistent with the practical effects of the positions being taken before the court should not be constitutionally infirm. Just as Ms. Masri may not be heard to complain that she may be married forever in the eyes of God according to her beliefs, Mr. Masri should not be heard to complain that his civil support obligations reflect his position that he remains married.

So what might the orthodox Jewish wife do when faced with this fact pattern? If Ms. Masri will not, in fact, remarry if not granted a Get, then why obtain the civil divorce? Perhaps Ms. Masri should obtain a decree of separation, and while doing so obtain spousal and child support and title or possession of the property of the parties (D.R.L. §234).

Eric Ole Thorsen, of New City, represented the wife.