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Mayer-Kolker v. Kolker

March 28, 2003


Before Judges Stern, Collester and Alley. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, FM-16-38-01.

The opinion of the court was delivered by: Alley, J.A.D.


Argued February 19, 2003

This is an accelerated appeal in which plaintiff appeals from portions of the Dual Final Judgment of Divorce entered March 20, 2002. *fn1

On August 9, 1996, plaintiff and defendant were married in a religious ceremony in Passaic, New Jersey. For both plaintiff (then 38) and defendant (then 41), this was their second marriage. Plaintiff has one daughter from a previous marriage, but the parties had no children from this marriage and as a result no disputes exist as to custody or child support. The disputes on appeal include whether defendant could be compelled to cooperate in giving plaintiff a get.

At the time of their marriage, the parties entered into a ketubah, a premarital document that within the Jewish tradition appears to have characteristics of a binding contract, at least in certain respects. Indeed, plaintiff alleges that the very act of executing a ketubah made their marriage subject to Mosaic law and obligated defendant to give her a get. According to defendant, however, the particular ketubah the parties signed did not have the effect of promising compliance with Mosaic law, lacked the requisite specificity for enforcement, and is silent on the issue of whether a get would be granted in the event of a divorce.

[At the court's direction, a preliminary discussion appearing at this point in the filed opinion has been omitted from the published opinion.]

Plaintiff requested that the court compel defendant to cooperate with those efforts. As we understand it, a husband must secure a release in order for his former wife to be free to remarry under Mosaic law. Minkin v. Minkin, 180 N.J. Super. 260, 261-62 & n.1 (Ch. Div. 1981), citing 6 Encyclopedia Judicia 132 (1971). The trial judge determined, "I'd like to order a get and see that [plaintiff is] free to remarry in [her] faith, however, I do not believe that I have the authority to do that." The judge based his decision on the reasoning in Aflalo v. Aflalo, 285 N.J. Super. 527 (Ch. Div. 1996).

Our trial courts have not been in complete accord on the issue of whether a civil court has authority to compel a husband to cooperate in obtaining a get. Minkin determined that, by signing a ketubah, the parties "agreed to conform to the provisions of the laws of Moses and Israel." Supra, at 262. Because in Minkin the parties' entry into the ketubah had been voluntary, and because the court found the ketubah itself did not violate public policy, Minkin held that a court could enforce the ketubah on neutral contract principles. Id. at 262- 63. Viewed in that light, a ketubah in a sense is a counterpart in religious law to the forum selection clauses and consents to suit that are given effect by temporal courts. See Paradise Enterprises Ltd. v. Sapir, 356 N.J. Super. 96 (App. Div. 2002), certif. denied, ____ N.J. ____ (2003), where we noted the general enforceability in New Jersey of forum selection clauses.

The court in Minkin went on to take testimony from at least five rabbis and relied upon "credible expert testimony [to find] that the acquisition of a get is not a religious act[.]" The court also found "that the entry of an order compelling defendant to secure a get would have the clear secular purpose of completing a dissolution of the marriage." Id. at 266. The court reasoned that compelling the husband to specifically perform the duties which he promised to undertake in the ketubah would thus not violate the Establishment Clause of the Constitution. Ibid. On facts different than those of the instant case, the court noted a ketubah required compliance with Mosaic law and that Mosaic law "require[s] the husband to give his wife a get when he alleges an act of adultery on his wife's part. In the instant case [Minkin] the husband counterclaimed for divorce on the ground of adultery, giving rise to the wife's claim to require her husband to secure a get." Id. at 262.

The holding in Minkin was followed in Burns v. Burns, 223 N.J. Super. 219, 224-25 (Ch. Div. 1987). Taking judicial notice of both the Bible and Encyclopedia Judaica, Burns stated that Mosaic law required a husband to obtain a get in at least five other circumstances in addition to alleged adultery by a wife. Id. at 225-26. Burns thus expanded the holding in Minkin to hold that a civil court confronted no constitutional problem in requiring a husband to cooperate in obtaining a get in the event of a dual judgment of divorce based upon eighteen months of separation with no prospect of reconciliation, commonly referred to as a "no fault" divorce. Ibid. Burns also noted the husband could cooperate by authorizing an agent to appear before the religious body to obtain the get rather than having to appear himself. Id. at 226.

In the present case, the trial court relied on Aflalo, supra, 295 N.J. Super. at 532, which declined to follow Minkin. In concluding he had no authority *fn2 to compel defendant to cooperate in obtaining a get, the judge in his opinion recited the following reasoning:

[Minkin] fails to recognize that coercing the husband to provide the "get" would not have the effect sought. The "get" must be phrased and formulated in strict compliance with tradition, according to the wording given in the Talmud. The precisely worded "get" states that the husband does "willingly consent, being under no restraint, to release, to set free, and put aside thee, my wife[.]" Accordingly, in giving his wife a "get" a husband must "act without constraint." Indeed, during the proceeding the husband is asked "whether he ordered [the "get"] of his own free will." What value then is a "get" when it is ordered by a civil court and when it places the husband at risk of being held in contempt should he follow his conscience and refuse to comply? Moreover, why should this court order such relief when that is something which the Beth Din will not do? If a "get" is something which can be coerced then it should be the Beth Din which does the coercing. In coercing the husband, the civil court is, in essence, overruling or superseding any judgment which the Beth Din can or will enter, contrary to accepted First Amendment principles. [Ibid.]

Alfalo determined that the Free Exercise clause (U.S. Const. amend. I) did not allow the court authority to compel either husband or wife to appear before the religious tribunal, whether to obtain a get or to discuss reconciliation. *fn3 Id. at 544. Our research has not disclosed any New Jersey court decisions other than at the trial ...

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