What is a Get?
Under Jewish law, a divorce between a husband a wife is not complete without a get. A get is a document given by a husband to a wife, which formalizes the divorce. Technically, Jewish law only permits a husband to give a get to his wife, which can create a significant obstacle if a husband refuses to give one to his wife. This raises the question of whether a New Jersey court can order a husband to give his wife a get without encroaching on the religious freedoms protected by the First Amendment of the United States Constitution.
What the Case Law Says
The first New Jersey case to address the issue of whether a court can order a husband to give his wife a get was the Bergen County Family Court case of Minkin v. Minkin. In Minkin, a wife sought a get from her husband based on the terms of their ketubah, a Jewish marriage contract, in which the spouses agreed to follow Mosaic law. Under Mosaic law, a husband is obligated to give his wife a get if he alleges she committed adultery, which the husband had alleged in his counterclaim.
The Court explained that as a court of equity, it could enforce a contract between parties, in this case the ketubah. The Court then had to determine whether enforcing the ketubah would violate the husband’s First Amendment rights. Finding no New Jersey law on point, the Court looked to two New York cases that upheld agreements between spouses to cooperate in obtaining a get upon the dissolution of their marriage.
In addition, the Court requested testimony from several distinguished rabbis, one of whom was a practicing matrimonial attorney. In essence, the rabbis testified that a get was a civil issue, as opposed to a religious issue. Based on this testimony the Court concluded that a get has a “clear secular purpose of completing a dissolution of the marriage” and therefore would not violate the husband’s First Amendment rights because the get “neither advances nor inhibits religion.” As a result, the Court held that ordering the husband to comply with the ketubah and give his wife a get did not infringe on the husband’s constitutional rights.
Several years after Minkin, the Camden County Family Court in Burns v. Burns expanded the ruling in Minkin beyond merely adultery, and explained that under Jewish law, there are other grounds for requiring a husband to give his wife a get, such as where the husband mistreats or abuses his wife. In Segal v. Segal, the Appellate Division overturned a one-sided settlement agreement between spouses, where a wife gave up alimony and a large portion of the marital property on the condition that the husband would give her a get. The Court likened this to “extortion” and held that the agreement was invalid because it was the product of duress.
Differing Court Opinions
Nevertheless, in Aflalo v. Aflalo, the Monmouth County Family Court held that the ruling in Minkin was not persuasive, and refused to compel a husband to give a get to his wife. The Court explained that Minkin was wrong in holding that a get was not a religious act, because in making this finding, the Court had to inject itself into the religious affairs of the parties. As a result, the Court concluded that any attempt to resolve such a dispute required “the making of a choice which accommodates one view and suppresses another”, which violates the First Amendment.
Where Things Stand Now
Since Aflalo, only one decision has addressed the issue of a get. In Mayer-Kolker v. Kolker, the Appellate Division acknowledged the disagreement between Minkin and Aflalo, but then skirted the issue entirely and explained that since the decision in Minkin was based on the validity of the ketubah, a court could not rule on the issue until it made a finding as to the particular requirements of the ketubah in question. Arguably, the Court in Mayer-Kolker tacitly sided with the holding in Minkin, because if it believed that Aflalo had it right, then there would have been no need for findings related to the ketubah, since no court could compel a husband to give his wife a get.
Of these cases, Aflalo is the outlier. Moreover, even Aflalo acknowledged that using a get as a bargaining chip is not permitted. Nevertheless, absent clear instruction from the Appellate Division or New Jersey Supreme Court, the issue arguably still remains unresolved. Steven M, Cytryn, Esq., is well versed in the legal aspects of this sensitive religious issue, and would welcome the opportunity to provide a consultation to anyone who believes a get may be an issue in their pending divorce. Contact an experienced Central New Jersey divorce lawyer today at (732) 214-1103 for more information.
Disclaimer – The information provided herein is for informational purposes only. None of the information provided herein should be considered legal advice and does not create a lawyer-client relationship. The information provided herein is not a replacement or substitute for independent legal advice and counsel, and should not be relied on for any purpose. The law is subject to change and interpretation, and every case presents its own unique set of facts and circumstances that must be considered and weighed before any legal action is taken.
