Showing posts with label GET Law to Punish Men for Not Giving the Wife a GET is Unconstitutional. Show all posts
Showing posts with label GET Law to Punish Men for Not Giving the Wife a GET is Unconstitutional. Show all posts

Wednesday, January 25, 2017

From My Brother's Blog daattorah.blogspot.com - GET Law punishing husbands for not giving their wives a GET is unconstitional

Friday, January 20, 2017


Masri vs Masri - New York court finds Get Law unconstitutional

In view of the foregoing, this court holds that in the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments to the United States Constitution. There is no evidence that the Defendant has withheld a Get to extract concessions from Plaintiff in matrimonial litigation or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant 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 declines Plaintiff's invitation to apply DRL §236B(6)(o) in determining Defendant's maintenance obligation.


In view of the foregoing, this court holds that in the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments to the United States Constitution. There is no evidence that the Defendant has withheld a Get to extract concessions from Plaintiff in matrimonial litigation or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant 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 declines Plaintiff's invitation to apply DRL §236B(6)(o) in determining Defendant's maintenance obligation.

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It was of the view that "the relief [the wife] seeks from this court so obviously runs afoul of the threshold tests of the Free Exercise Clause that the court need never reach the delicate balancing normally required in such cases." Id., at 534. It wrote:

The court is not unsympathetic to [the wife's] desire to have [the husband's] cooperation in the obtaining of a "get". She, too, is sincere in her religious beliefs. Her religion, at least in terms of divorce, does not profess gender equality. But does that mean that she can obtain the aid of this court of equity to alter this doctrine of her faith? ....


Id., at 535. After extended analysis, the court answered:

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. 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. Those who founded this Nation knew too well the tyranny of religious persecution and the need for religious freedom. To engage even in "well-intentioned' resolution of a religious dispute requires the making of a choice which accommodates one view and suppresses another. If that is permitted, it readily follows that less "well-intentioned" choices may be made in the future . . . .
The tenets of [the wife's] religion would be debased by this court's crafting of a short-cut or loophole through the religious doctrines she adheres to; and the dignity and integrity of the court and its processes would be irreparably injured by such misuse...


Id., at 542-543.
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:

....Although the statute is phrased in ostensibly neutral language, its avowed purpose is to curb what has been described as the withholding of Jewish religious divorces, despite the entry of civil divorce judgments, by spouses acting out of vindictiveness or applying economic coercion. See Governor's Memorandum of Approval, McKinney's 1983 Session Laws of New York, pp. 2818, 2819. The statute seeks to provide a remedy for the "tragically unfair" situation presented where a Jewish husband refuses to sign [*6]religious documents needed for a religious divorce. Id.

Though this is the purpose of the statute, the statute makes no express reference to Jewish religious divorces or Jewish religious tribunals. The absence of references to Jewish religious practices was hardly unintentional. The statute represents an obvious encroach-ment by the civil authorities into religious matters, particularly with respect to perceived unfairness in the religious divorce doctrines of one particular religion. In an attempt to skirt some of the difficult constitutional questions raised in the context of the relationship between church and state, the drafters of the statute wrote in neutral language and avoided any express singling out of Jewish practices. However, even approached with linguistic backhand, the contention has been raised that the entire statute is unconstitutional. The existence of constitutional questions was noted by the Governor when the original legislation was presented for signature. However, he was determined to sign the legislation because of the absence of "impelling precedent" and confidence in the courts to resolve the constitutional questions. See Governor's Memorandum of Approval, McKinney's 1983 Session Laws of New York, pp. 2818, 2819.


McKinney's Cons. Laws of New York Annotated, DRL §253, Practice Commentaries (Scheinkman) C253:1 (2016).
Noting the potential constitutional infirmity of DRL §253 in terms directly applicable to Plaintiff's request that maintenance be so calibrated per DRL §236B(6)(o) as to apply financial pressure on Defendant to induce him to provide a Jewish religious divorce, the Hon. Alan D. Scheinkman wrote:

DRL §253 is really designed to induce or compel Jewish spouses, especially men, to "voluntarily" accede to religious divorces or else be precluded from obtaining a civil divorce decree. Viewed as such, it is questionable whether the statute can withstand constitutional challenge.

It cannot be doubted that marriage is a personal relation and the state may fix the rights, duties, and obligations which arise out of the relationship, including the terms on which the relationship may be terminated. Maynard v. Hill, 125 U.S. 190...(1888). The state may allow civil divorce, even though one spouse object to the decree on the basis of religious conviction and even though a religious divorce cannot be or has not been obtained. See Williams v. Williams, 543 P.2d 1401 (Okla. Sup. Ct. 1976), appeal dismissed, cert. denied ...426 U.S. 901.... Religious practices, even those relating to religious marriage practice, may be regulated, if offensive to overriding public policy. See Reynolds v. United States, 8 Otto 145, 98 U.S. 145...(1878)(criminal prosecution for bigamy).[FN4]

This statute does not purport to prohibit a religious practice on public policy grounds. Instead, it is intended to coerce parties to seek religious relief on pain of being deprived of civil relief. While it may perhaps be permissible for secular courts to compel a party to perform a contractual obligation, though imposed in a religious writing (as allowed by the Avitzur decision), it seems doubtful that a civil statute can compel, by mandating the withholding of relief, a party to a civil action to undertake religious proceedings or submit [*7]to religious authorities and practices. The statute may be susceptible to the conclusion that it interferes with the free practice of religion and transgresses the separation of church and state.


McKinney's Cons. Laws of New York Annotated, DRL §253, Practice Commentaries (Scheinkman) C253:1 (2016) (emphasis added).

In view of the foregoing, this court holds that in the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments to the United States Constitution. There is no evidence that the Defendant has withheld a Get to extract concessions from Plaintiff in matrimonial litigation or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant 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 declines Plaintiff's invitation to apply DRL §236B(6)(o) in determining Defendant's maintenance obligation.


5. Findings

Defendant is a young, well educated man in good health with an earning capacity far in excess of the very meager income reflected on his 2015 tax return. Moreover, evidence of record indicates that his earnings and financial resources exceed the amounts stated on his tax return and net worth statement, and, in addition, that Defendant has willfully failed to comply with his financial disclosure obligations in this case. In view of the foregoing, the court imputes to Defendant gross income in the amount of $75,000.00 per annum. Applying the statutory guideline for post-divorce spousal maintenance to the parties' income as determined hereinabove, spousal maintenance owing from Defendant to Plaintiff would be $9,696.00 per annum (or $808.00 per month, $186.46 per week) for a minium of 2.1 years and a maximum of 4.2 years.

In accordance with the post-divorce maintenance guidelines, the court fixes Defendant's maintenance obligation at $9,696.00 per annum ($808.00 per month, $186.46 per week), taxable to Plaintiff and tax-deductible by Defendant, 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).

Child Support

At this time, Plaintiff is the custodial parent. Unless and until Family Court alters her status as the custodial parent, Defendant's child support obligation is $843.83 per month (or $194.73 per week), calculated as follows: [...]

The foregoing constitutes the decision of the court. Plaintiff's counsel is directed to submit revised Findings of Fact and Conclusions of Law, and a revised Judgment of Divorce, consistent with this Decision, for settlement on ten (10) days notice to Defendant.