Aflalo v. Aflalo

• Decision Date: 29 February 1996
• Citation: 295 N.J.Super. 527,685 A.2d 523
• Parties: , 65 USLW 2439 Sondra Faye AFLALO, Plaintiff, v. Henry Arik AFLALO, Defendant.
• Court: New Jersey Superior Court

Page 527

295 N.J.Super. 527

685 A.2d 523, 65 USLW 2439

Sondra Faye AFLALO, Plaintiff, v. Henry Arik AFLALO, Defendant.

Superior Court of New Jersey, Chancery Division,

Family Part, Monmouth County.

Decided Feb. 29, 1996.

Chen Kornreich, Freehold, for plaintiff (Kornreich & Harkov, attorneys)

Neil M. Pomper, for defendant.

FISHER, J.S.C.

I INTRODUCTION

This case requires the court to visit an issue that has previously troubled our courts in matrimonial actions involving Orthodox Jews--a husband's refusal to provide a "get". ¹

Here, the parties were married on October 13, 1983 in Ramle, Israel, and have one child, Samantha. Plaintiff Sondra Faye Aflalo ("Sondra") has filed a complaint seeking a dissolution of the marriage. Defendant Henry Arik Aflalo ("Henry") has answered the complaint. The matter is on the court's active trial list and should be reached for trial in the very near future. Henry does not want a divorce and has taken action with The Union of Orthodox Rabbis of the United States and Canada in New York City (the "Beth Din" ²) to have a hearing on his attempts at reconciliation.

The issues at hand came to critical mass when the parties engaged in a settlement conference on February 14, 1996, while awaiting trial in this court. At that time the court was advised by counsel that the matter was "98% settled" but that Henry had placed what Sondra viewed as an insurmountable obstacle to a complete resolution: he refused to provide a "get." Unlike what the court faced in Segal v. Segal, 278 N.J.Super. 218, 650 A.2d 996 (App.Div.1994) and Burns v. Burns, 223 N.J.Super. 219, 538 A.2d 438 (Ch.Div.1987), Henry was not using his refusal to consent to the "get" as a means of securing a more favorable resolution of the

                issues before this court.  That type of conduct the Burns court rightfully labelled "extortion".  223 N.J.Super. at 224, 538 A.2d 438.   On the contrary, Henry's position (as conveyed during the settlement conference) was that regardless of what occurs in this court he will not consent to a Jewish divorce
                

II COUNSEL'S MOTION TO BE RELIEVED

Henry's position spun off an unexpected problem; it caused his attorney to move to be relieved as counsel. Arguing that since he, too, is a practicing Orthodox Jew, Pomper Certification (February 19, 1996), p 4, Henry's counsel claims that he would "definitely have a religious problem representing a man who at the conclusion of a divorce proceeding refused, without reason, to give his wife a Get." Id., p 7.

This motion was heard on an expedited basis. At oral argument on February 20, 1996, Henry's counsel expanded on his position and indicated, upon questioning from the court, that his religious quandary comes not from Henry's use of his consent to a Jewish divorce as leverage in negotiations (which was not occurring), but in the blanket refusal of his client to give a "get" without reason.

Henry opposed his attorney's motion. He stated under oath that he seeks a reconciliation and that Sondra had been summoned to appear before the Beth Din for this purpose. The court was also advised during oral argument that should reconciliation fail the Beth Din could recommend that Henry give Sondra a "get"; Henry stated under oath that while he desires a reconciliation he would follow the recommendations of the Beth Din and give the "get" if that was the end result of those proceedings. The court finds Henry both credible and sincere in this regard; his position clearly eliminates his counsel's stated concerns ³.

III

PLAINTIFF'S ATTEMPTS IN THIS COURT TO OBTAIN A "GET"

The problem, however, festers since Sondra appears unwilling to settle this case without a "get". Accordingly, this court must now lay to rest whether any order may be entered which would impact on Sondra's securing of a Jewish divorce.

Sondra claims that this court, as part of the judgment of divorce which may eventually be entered in this matter, may and should order Henry to cooperate with the obtaining of a Jewish divorce upon pain of Henry having limited or supervised visitation of Samantha or by any other coercive means. She claims that Minkin v. Minkin, 180 N.J.Super. 260, 434 A.2d 665 (Ch.Div.1981) authorizes this court to order Henry to consent to the Jewish divorce. That trial court decision certainly supports her view. This court, however, believes that to enter such an order violates Henry's First Amendment rights and refuses to follow the course outlined in Minkin.

A. An Overview Of First Amendment Jurisprudence

Prior to the adoption of our Nation's constitution, attempts were made in some colonies to legislate on matters of religion, including the governmental establishment of religion and the raising of taxes for the support of certain religions. Punishments were prescribed for the failure to attend religious services and for entertaining heretical opinions. See Reynolds v. United States, 98 U.S. 145, 162-163, 25 L.Ed. 244 (1878). In 1784 the Virginia legislature attempted to enact a bill "establishing provision for teachers of the Christian religion." This brought to bear the determined and eloquent opposition of Thomas Jefferson and Not long after the adoption of the Constitution and the Bill of Rights, Jefferson made clear the meaning and intent of the First Amendment in his famous "reply" to the Danbury Baptist Association:

James Madison. Madison responded in his "Memorial and Remonstrance" that "religion, or the duty we owe the Creator" was not within the cognizance of civil authority. The next session of the Virginia legislature led to the defeat of the aforementioned bill and the passage of a bill drafted by Jefferson which established "religious freedom" and declared that "to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty."

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the Government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should "make no law respecting an establishment of religion or prohibiting the free exercise thereof," thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the Nation in behalf of the rights of conscience, I shall see, with sincere satisfaction, the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.

Since then the dimensions of this "wall of separation between Church and State" have been robustly debated and described frequently by our Nation's highest court.

The "Free Exercise Clause" of the First Amendment applies to the states through the Fourteenth Amendment's Due Process Clause. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Not only does it bar a state's legislature from making a law which prohibits the free exercise of religion but it likewise inhibits a state's judiciary. In re Adoption of E., 59 N.J. 36, 51, 279 A.2d 785 (1971).

In the first instance, the Free Exercise Clause prohibits governmental regulation of religious beliefs but does not absolutely prohibit religious conduct. Braunfeld v. Brown, 366 U.S. 599 Only when state action passes these threshold tests is there a need to balance the competing state and religious interests. The court is to engage in such balancing when the conduct or action sought to be regulated has "invariably posed some substantial threat to public safety, peace or order." Sherbert, supra, 374 U.S. at 403, 83 S.Ct. at 1793. Here, the relief Sondra 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.

                603, 81 S.Ct. 1144, 1145, 6 L.Ed.2d 563 (1961);  Cantwell, supra, 310 U.S. at 303-304, 60 S.Ct. at 903-904.   Second, to pass constitutional muster, a law must have both a secular purpose and a secular effect.  That is, a law must not have a sectarian purpose;  it must not be based upon a disagreement with a religious tenet or practice and must not be aimed at impeding religion.  Braunfeld, supra, 366 U.S. at 607, 81 S.Ct. at 1148;  Sherbert v. Verner, 374 U.S. 398, 402-403, 83 S.Ct. 1790, 1793-1794, 10 L.Ed.2d 965 (1963)
                

The court will first endeavor to describe precisely what it is that Sondra seeks. And, while it seems beyond doubt, the court will then indicate why it cannot and certainly will not provide that relief.

B. The Jewish Divorce

"When a man takes a wife and possesses her, if she fails to please him because he finds something obnoxious about her, then he writes her a bill of divorcement, hands it to her, and sends her away from his house." Deuteronomy 24:1-4. From this biblical verse, the Jewish law and tradition that the "power of divorce rests exclusively with the husband" has its genesis. Wigoder, The Encyclopedia of Judaism (1989) 210.

The "get" is written almost entirely in Aramaic on parchment, id. at 211, and is drawn up by a "sofer" (a scribe), upon the husband's instruction to write "for him, for her, and for the purpose of a divorce," 6 The Encyclopedia Judaica (1971) 131. The materials used in the creation of the "get" must belong to the Without such a divorce, the wife remains an "agunah" (a "tied" woman) and may not remarry in the eyes of Jewish law. Wigoder, supra at 211. If she remarries without a "get" she is considered to be an adulteress because she is still halakhically married to her first husband; any subsequent children are considered to be "mamzerim" (illegitimate) and may not marry other Jews. Himelstein,...