A.W. v. I.N.

Decision Date02 January 2020
Docket NumberXXXXXX-2017
Citation117 N.Y.S.3d 527,66 Misc.3d 742
Parties A.W., Plaintiff, v. I.N., Defendant.
CourtNew York Supreme Court

Plaintiff is Pro-se

Attorney for the defendant is Nancy T. Sherman, P.C. (516) 773-3400

Edmund M. Dane, J.

PRELIMINARY STATEMENT

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 DRL § 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 $5,000.00 for Husband having to make the motion and for sanctions against the Wife; (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 Rabbi's of the Husband's choosing and accepts a GET.

BACKGROUND

The parties were married on May 30, 2002 in a civil ceremony.1 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 $100,000.00 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 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 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.

DISCUSSION

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 v. Hull Church, 393 U.S. 440, 449, 89 S.Ct. 601, 21 L.Ed.2d 658 [1969] ; Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 49 L.Ed.2d 151 [1976] ; Jones v. Wolf, 443 U.S. 595, 603, 99 S.Ct. 3020, 61 L.Ed.2d 775 [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, supra, 443 U.S. at p. 602, 99 S.Ct. at 3024 ; Avitzur v. Avitzur , 58 N.Y.2d 108, 114—15, 459 N.Y.S.2d 572, 446 N.E.2d 136 (1983) ; Golding v. Golding , 176 A.D.2d 20, 581 N.Y.S.2d 4 [1st Dept., 1992] ; Congregation Yetev Lev D'Satmar, Inc. v. Kahana , 31 A.D.3d 541, 820 N.Y.S.2d 62 [2nd 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 non-cooperation with same. (See, Fischer v. Fischer, 237 A.D.2d 559, 655 N.Y.S.2d 630 [2nd Dept.1997] ; Kaplinsky v. Kaplinsky, 198 A.D.2d 212, 603 N.Y.S.2d 574 [2nd Dept.1993] ; Waxstein v. Waxstein, 90 Misc. 2d 784, 395 N.Y.S.2d 877[Sup.Ct. Kings Co.1976], aff'd 57 A.D.2d 863, 394 N.Y.S.2d 253 [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 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 A.D.3d 801, 29 N.Y.S.3d 516 [2nd Dept.2016] ; Pinto v. Pinto, 260 A.D.2d 622, 688 N.Y.S.2d 701 [2nd Dept.1999] ; Schwartz v. Schwartz, 235 A.D.2d 468, 652 N.Y.S.2d 616 [2nd Dept. 1997] ). Under the unique circumstances of this case, it...

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