Church, State and Religious Divorce

Divorcing couples in New York often need a religious divorce—in addition to a traditional divorce—to truly move forward with their lives.  This is particularly true in the Jewish orthodox community, where divorcing parties need what is known as a “Get” in order to date, remarry or have children in a subsequent relationship.  Religious issues like these raise challenging issues for courts—and show how important it is for couples to plan in advance to allow courts to assist with issues relating to religious divorce.

For example, in Masri v. Masri, the wife requested a spousal maintenance award that would terminate only when her husband agreed to give her a Get.  The court held that it would violate the First Amendment to increase maintenance on the basis of the husband’s refusal to give his wife a Get, but noted that such an arrangement might be appropriate had there been evidence that his refusal was a scheme to extract economic concessions.  But, because the husband’s refusal stemmed from his religious beliefs, the court concluded that imposing additional maintenance on the basis of his refusal would be unconstitutional.

Yet, when it comes to religious divorce, courts are more willing to enforce agreements already in place.  That’s why, in Avitzur v. Avitzur, New York’s highest court enforced a provision in a prenuptial agreement requiring the parties to arbitrate before a named rabbinical tribunal.  The court reasoned that it could enforce the agreement because, by compelling him to appear before the agreed upon tribunal, the court was not forcing him to pursue any particular religious practice.  Instead, the Court likened the agreement to an arbitration clause, and since the parties chose the law and tradition that would apply, the court was in a position to require the husband to act as the contract required.

Following Avitzur’s logic, courts have enforced separation agreements requiring parties to cooperate in obtaining a religious divorce, sometimes going so far as to hold the noncompliant party in contempt for failing to abide by their agreement.  The courts’ willingness to do so makes it all the more important that individuals enter into agreements—whether prenuptial, postnuptial or separation agreements—stating their understandings about whether and how they will deal with religious issues in their divorce.  To learn more about these options, please email me at or call me at (646) 491-9008 to schedule an initial consultation.