Supreme Court, Nassau County, January 2, 2020

Nancy T. Sherman, P.C. for defendant.

A.W., plaintiff pro se.

Defendant (husband) moves by order to show cause dated October 31, 2019, for an order (1) staying the entry of a final judgment of divorce until the plaintiff (wife) takes all steps solely within her power to remove all barriers to the husband's remarriage pursuant to Domestic Relations Law § 253 (3); (2) conditioning the wife's receipt of a $100,000 distribution from the husband's individual retirement account (IRA) upon her taking all steps within her power to remove all barriers to the husband's remarriage following the divorce; (3) directing the wife to appear before an Orthodox beth din of husband's choice and accept an Orthodox Jewish divorce (get) from the husband; (4) directing the wife pay counsel fees of $5,000 for husband having to make the motion and for sanctions against the wife; and (5) modifying the proposed judgment of divorce to provide that the wife shall not receive the $100,000 from the husband's IRA until she appears before a tribunal of Orthodox rabbis of the husband's choosing and accepts a get.

The parties were married on May 30, 2002, in a civil ceremony.^[FN1] There are two unemancipated children of the marriage. The wife commenced the underlying action for divorce on May 30, 2017. The parties resolved issues of custody and parenting time pursuant to stipulation dated November 9, 2018. A trial on the financial issues commenced on February 14, 2019, at which time an inquest was held. Prior to the conclusion of the trial, the parties resolved the outstanding issues of this action by stipulation dated May 9, 2019 (financial stipulation). As part of the financial stipulation, the parties agreed that $100,000 from the husband's IRA would be transferred to the wife.

Following the execution of the financial stipulation, the wife's counsel prepared a proposed judgment of divorce and ancillary{**66 Misc 3d at 744} documents for submission to the court. According to the husband, his attorney then contacted wife's attorney to request the proposed judgment include a provision requiring cooperation with a get. The husband states that he was led to believe that the wife was willing to accept a get, but she has since ignored his requests to cooperate with same. The husband argues that because he is an Orthodox Jew, he cannot remarry under Jewish law unless the wife accepts a get. He attaches an affirmation from a rabbi in support of his request wherein the rabbi states that a get must be given by the husband and accepted by the wife for either party to remarry under Jewish law. According to the rabbi's affirmation, the wife's refusal to appear before an Orthodox beth din and accept the get will prevent the husband from remarrying. The husband asks that the court stay his obligation to transfer the $100,000 to the wife pursuant to the financial stipulation until such time as she accepts a get. The husband argues that the wife swore to remove all barriers to his remarriage but her refusal to cooperate with the get is a refusal to remove all barriers to his remarriage. The husband argues that there is precedent for the court to intervene and fashion an award of equitable distribution in this instance and he also seeks an award of legal fees.

In opposition, the wife asserts that the parties were not married religiously nor was there any religious ceremony. Therefore, she argues, since there was no marriage according to Jewish law, there is no religious divorce to be had. The wife states that she refused the husband's offers for a religious wedding ceremony because she wanted to avoid any religious divorce rituals. The wife argues that in any event, the husband is not a practicing Orthodox Jew. She states that he regularly communicates with others during both Shabbat and Sukkot, and socializes in a manner contrary to his alleged faith. The wife asserts that the rabbi who offers an affirmation in support of the husband is from a "fanatic" and "extreme" faction of Orthodox Jews which discriminates against women. Furthermore, she argues that even if the parties were religiously married, a religious divorce is never a barrier to the husband's remarriage. Finally, the wife argues that the $100,000 due to her under the financial stipulation was without condition and that forcing her to accept a get violates her civil rights.

The husband offers no personal affidavit to refute her claims in reply. However, his attorney argues that the wife fails to provide any "admissible evidence" that the husband does not {**66 Misc 3d at 745}need a get to remarry. She argues that the wife's sworn statement that she would remove all barriers to the husband's remarriage was a fraud.

The issue before the court is whether, based upon the wife's statement that she would remove all barriers to the husband's remarriage, the wife should be directed to cooperate with the acceptance of a get from the husband, and/or whether the court may condition her receipt of funds under the financial stipulation upon her cooperation with same.

The constitutional limitations on the court's ability to intervene on religious issues are deeply rooted in law and it is well established that the court may not consider religious doctrine in rendering a decision (see e.g. Presbyterian Church in U. S. v Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440, 449 [1969]; Serbian Eastern Orthodox Diocese for United States and Canada v Milivojevich, 426 US 696, 709 [1976]; Jones v Wolf, 443 US 595, 603 [1979]).

Nonetheless, courts have resolved issues of religion by relying upon secular and neutral principles of law, primarily in the context of contract law (see e.g. Jones v Wolf, 443 US at 602; Avitzur v Avitzur, 58 NY2d 108, 114-115 [1983]; Golding v Golding, 176 AD2d 20 [1st Dept 1992]; Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana, 31 AD3d 541 [2d Dept 2006]). Where there is a contractual agreement to cooperate with a religious divorce, courts have routinely enforced the agreement by imposing financial sanctions and/or withholding economic relief in the event of a party's noncooperation with same (see Fischer v Fischer, 237 AD2d 559 [2d Dept 1997]; Kaplinsky v Kaplinsky, 198 AD2d 212 [2d Dept 1993]; Waxstein v Waxstein, 90 Misc 2d 784 [Sup Ct, Kings County 1976], affd 57 AD2d 863 [2d Dept 1977]).

In this case, however, there is no agreement or contract between the parties regarding the get. In fact, there exists a fully executed financial stipulation which is silent as to the need, or even the desire, for either party to obtain a get. There is no contract that obligates either party to cooperate with any religious divorce, ritual or ceremony. Accordingly, this is not an instance where the court can rely upon contract law to intervene on this religious issue.

Outside the context of contract law, the Second Department has determined that it is not an improper interference with{**66 Misc 3d at 746} religion for the lower court to fashion maintenance and equitable distribution awards to address a husband's withholding of a get solely to extract economic concessions from the wife (see e.g. Mizrahi-Srour v Srour, 138 AD3d 801 [2d Dept 2016]; Pinto v Pinto, 260 AD2d 622 [2d Dept 1999]; Schwartz v Schwartz, 235 AD2d 468 [2d Dept 1997]). Under the unique circumstances of this case, it is the wife who is refusing to cooperate with the get, and there is already a fully executed financial stipulation resolving the economic issues of the marriage.^[FN2] There is nothing in the record to suggest that the wife's refusal to accept a get had any impact on the terms of the financial stipulation or that her noncooperation is for the purpose of extracting further economic concessions. Therefore, there is no basis for the court to interfere with the economic settlement reached by the parties.

It would be a violation of the First Amendment of the United States Constitution for the court to order the wife to participate in a religious ritual when she did not agree to do so; nor may the court impose a financial penalty against her. One party's decision to follow a certain faith and/or faction of that faith cannot be the basis for the court's decision. As articulated in the recently decided Masri v Masri (55 Misc 3d 487, 499 [Sup Ct, Orange County 2017]): "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 husband further argues that the court may interfere in this instance because the wife swore that she removed all barriers to the husband's remarriage, a claim the husband asserts was false. Whether or not the wife removed religious barriers to the husband's remarriage is an issue of religion, not within the court's purview.

While Domestic Relations Law § 253 requires a plaintiff to swear that she has, to the best of her knowledge, taken all steps solely within her power to remove all barriers to defendant's{**66 Misc 3d at 747} remarriage following the divorce, subdivision (9) of Domestic Relations Law § 253 states that "[n]othing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue. The truth of any statement submitted pursuant to this section shall not be the subject of any judicial inquiry, except as provided in subdivision eight of this section."^[FN3]

The wife asserts that because she was married in a civil ceremony her refusal to accept a get is not a barrier to the husband's remarriage, either religious or otherwise. Because the wife maintains that she is in compliance with Domestic Relations Law § 253, the court cannot grant the husband the relief he seeks (cf. Kaplinsky v Kaplinsky, 198 AD2d 212, 213 [2d Dept 1993] [husband properly held in contempt for his refusal to deliver a get where he agreed in stipulation, incorporated into judgment of divorce, to remove all barriers to the wife's remarriage in light of the fact that he "continually acknowledged" that a get was the only way the wife could remarry]).

Here, the court may not inquire beyond the wife's sworn statement that she has, to the best of her knowledge, removed all barriers to the husband's remarriage as same would constitute an impermissible decision on a religious issue (see e.g. Sieger v Sieger, 37 AD3d 585, 586-587 [2d Dept 2007]; Domestic Relations Law § 253 [9]). The parties are at liberty to follow whatever faith and religious beliefs they choose, but that does not mean the court can or will interfere by imposing one party's beliefs upon the other.

For all of the above reasons, the husband's motion is denied in its entirety.

"The legislative intent of Domestic Relations Law § 253 (3) was principally to prevent the husband in the case of a Jewish divorce from using the denial of a 'get' as a form of economic coercion in a civil divorce action (see Perl v Perl, 126 AD2d 91, 94-95 [1987]; Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, CPLR C253:1 . . . )" (Sieger v Sieger, 37 AD3d 585, 586-587 [2007]).