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TO GET A "GET": ENFORCEMENT OF CONTRACTS REQUIRING SPOUSES TO SECURE OR ACCEPT RELIGIOUS DIVORCES
1994 National Legal Research Group, Inc.

I. INTRODUCTION

Most religious denominations are content to accept the judgment of civil authorities that a marriage has ended. A few denominations, however, believe that a marriage does not end for religious purposes unless an independent religious court concludes that a recognized basis for divorce exists. The most common example is found in some branches of Judaism, where a wife is prevented from remarrying unless she is given a religious divorce (a "Get") from a rabbinical tribunal.

Since the Get and other religious divorces require the cooperation of both spouses, separation agreements between Jewish spouses often provide that such cooperation will be granted upon request. After such an agreement is signed, however, one spouse sometimes fails to perform, often in order to extort a more favorable settlement. This article will discuss the question of whether state courts can enforce a promise to cooperate in obtaining a Get without violating the freedom-of-religion clauses of the federal or state constitutions.

II. JEWISH MARRIAGE PRACTICE: KETUBAHS AND GETS

When a Jewish man and wife who abide by the Orthodox or Conservative tenets of the religion decide to enter into the marital union, they most often will sign a ketubah, a marriage contract. In this document, the bridegroom promises to cherish and provide for his bride-to-be, and the bride expresses her willingness to carry out her marital obligations to her husband. Most importantly, the couple expresses their intentions to abide by the laws of Moses and Israel. The couple confirms their recognition of the Beth Din or some other rabbinical assembly as having the authority to counsel the couple with regard to any problems that might arise.

According to the laws of Moses and Israel, when a Jewish couple decides to divorce, the husband is to obtain a Get, a Jewish divorce that allows the parties to remarry. The husband is to initiate this action voluntarily, after he is satisfied with the financial and custodial arrangements of the divorce. The wife is then required to voluntarily accept the Get. According to Judaic law, if the husband will not procure a Get for his wife, or the wife will not accept one, the wife may not remarry, and any children she has by another man will be branded as illegitimate.

To obtain a Get, the husband must appear before a rabbinical assembly, which determines whether or not to grant a Jewish divorce to the parties. As suggested above, the onus of responsibility is on the husband; the wife cannot take a unilateral action to procure a Get. If the husband is unwilling to secure one for her, she is caught between a rock and a hard place: whether to remarry despite not obtaining a Get, in violation of the laws of Moses and Israel, or whether to forgo her heart and abide by the tenets of her faith. Jewish wives finding themselves in such a situation have sought the jurisdiction of civil courts to help them to compel their husbands to grant a Get. Occasionally, the situation is reversed, and the wife will not accept a Get from her husband. The consequences of this situation are not as harsh, however, as children of the husband's remarriage will not be branded as illegitimate.

Because of the stressful personal situation faced by the Jewish wife whose husband will not cooperate in obtaining a Get, many Jewish couples agree in an antenuptial or separation agreement that in the event of a civil divorce, both will cooperate in obtaining a Get. The issue for the civil court is then whether enforcing an obligation to secure a Get is within its equitable powers, or whether enforcing an obligation to secure a Get would be a violation of the edict that the state may not interfere with a person's freedom of religion.

III. NEW YORK LAW

The jurisdiction that most often has been called upon to address this question is New York. Perhaps because of the large number of members of the Jewish faith who live within that state, there is extensive New York case law on the enforceability of agreements to obtain a Get.

Separation Agreement Cases

The New York cases have routinely found no problem with compelling a husband to secure a Get for a wife where the parties had signed a separation agreement requiring that the parties obtain a Get as part of the terms of the settlement of their marriage. The civil courts found themselves in the role of doing no more than enforcing the terms of a contract, and thus they saw no constitutional impediment to enforcement of the obligation. The more difficult question arose, however, where a spouse was relying on the ketubah, the Jewish marriage contract, as grounds for compelling a husband to provide or a wife to accept a Get, as required by the laws of Moses and Israel.

In an early case, Koeppel v. Koeppel, 138 N.Y.S.2d 366 (Sup. Ct. 1954), the parties were married in August 1951. In December 1953, the wife commenced an action to have the marriage annulled because of fraud in the inducement. In January 1954, while separated, the parties entered into an agreement settling property and monetary matters. Pursuant to Paragraph Five of that agreement, the parties stipulated that if either requested the other to appear before a rabbinical assembly selected by the party so requesting and to execute the necessary documents to effect dissolution of the marriage in accordance with the Jewish faith, the other party would comply.

The parties were granted a final judgment of annulment in July 1954. The wife demanded that the husband execute documents to obtain a Get. He refused. Two rabbis, a scribe, and a witness called upon the husband at his place of business to compel him to sign the necessary documents, but he nevertheless refused. In August 1954, the wife brought an action to obtain specific performance of the agreement.

The husband alleged that the action was academic because the wife had already remarried. The court rejected this answer, explaining that she might have been remarried in a civil ceremony but not in a religious ceremony, and that it could not be said that a religious ceremony was of little importance. The husband also alleged that an order compelling him to obtain a Get would be an impermissible interference with his freedom of religion. The court similarly rejected this answer:

Koeppel v. Koeppel, 138 N.Y.S.2d 366, 373 (Sup. Ct. 1954). Finally, the court rejected the husband's claim that the ceremony would take too much time:

Id. at 373. The court thus ordered the husband to abide by the terms of the separation agreement and secure for his wife the Get.

In Waxstein v. Waxstein, 90 Misc. 2d 784, 395 N.Y.S.2d 877 (Sup. Ct. 1976), aff'd, 57 A.D.2d 863, 394 N.Y.S.2d 253 (1977), the court followed suit. The parties to that action were married in 1953. They bore three children, all of whom were over the age of 18 at the time of the divorce.

In May 1973, the parties entered into a separation agreement. Pursuant to the agreement, the wife moved out of the marital residence. She executed a deed conveying her interest in the residence, but this was held in her attorney's escrow account pending the husband's compliance with another provision of the separation agreement requiring him to give the wife a Get.

The court granted the wife a divorce. It also issued an injunction, directing the husband to give the wife a Get. It rejected the husband's defense that by moving out of the marital residence the wife had waived her right. The court noted that she was merely performing her part of the agreement. The court also rejected the husband's argument that the agreement was void as against public policy. The court found that the agreement neither required dissolution nor tended to promote divorce. See also In re Marriage of Rubin v. Rubin, 75 Misc. 2d 776, 348 N.Y.S.2d 61 (Fam. Ct. 1973) (court upheld separation agreement that provided, inter alia, that in order to be entitled to support, wife would have to accept a Get from the husband; case provides good background discussion of the Get).

In two interim cases in New York, the reviewing court enforced the obligation of a husband to secure a Get but imposed some limitations on the sanctions that could be placed on a husband for refusing to do so. In Margulies v. Margulies, 42 A.D.2d 517, 344 N.Y.S.2d 482, appeal dismissed, 33 N.Y.2d 894, 307 N.E.2d 562, 352 N.Y.S.2d 447 (1973), in the parties' divorce proceedings the husband stipulated in open court that he would appear before the rabbinical council to obtain a Get. Subsequently, he would not comply with that agreement. The court twice held him in contempt and fined him for his refusal, explaining that he could purge himself by securing the Get and paying the fine. He still refused. In a third action to compel compliance, the court ordered the husband committed to jail for 15 days, again with the opportunity to purge himself. On appeal, the appellate division held that the court could not order the husband imprisoned but it could require him to pay the fine and to comply with the terms of the stipulation.

In Pal v. Pal, 45 A.D.2d 738, 356 N.Y.S.2d 672 (1974), the court also recognized some limits to its powers. As in Margulies, the parties agreed in open court to obtain a Get. The stipulation included a provision that the court would choose a third rabbi to serve on the rabbinical assembly hearing the matter if the two rabbis, one each selected by the parties, failed to appoint a third. The wife sought court appointment of a third rabbi to appear on the tribunal, and the court selected one. The appellate division reversed this part of the decision, holding that it was impermissible for the court to convene a religious tribunal. The appeals court nevertheless implied it would acknowledge the validity of the order compelling the husband to secure a Get. It refused to hold the wife in contempt for violating a visitation order when the husband was not complying with the agreement to obtain the Get, and the court further held that stock and a deed to the marital residence were not to be turned over to the husband until he gave the wife a Get.

As the cases above suggest, the New York courts have found no impermissible interference with freedom of religion and no excessive entanglement between state and religion where they were simply called on to force a party to comply with the terms of a separation agreement wherein the parties agreed to secure a Get. The courts have limited themselves, however, by refusing to order jail sentences for noncompliance and by refusing to engage in actions that would force them to become involved in religious aspects of the Get, such as appointing a rabbi to serve on a tribunal or interpreting whether a Get was acceptable to a specific branch of Judaism.

Ketubah Cases

As noted above, a much harder question is presented when the claiming spouse relies upon the ketubah, the Jewish marriage contract. The first major case to present this issue was Avitzur v. Avitzur, 58 N.Y.2d 108, 446 N.E.2d 136, 459 N.Y.S.2d 572 (1983) cert. denied, 464 U.S. 817 (1983). In Avitzur, the parties were married in 1966. They signed a ketubah shortly before the marriage ceremony. In May 1978, the husband was granted a divorce on the grounds of cruel and inhuman treatment. The wife sought to summon the husband before the Beth Din, the Orthodox rabbinical tribunal, to secure the Get. The husband refused.

The wife thereafter filed an action to compel the husband to appear before the Beth Din. She contended that the ketubah was a marital contract and that the husband had breached it by refusing to obey the laws of Moses and Israel. Specifically, she sought an order compelling his specific performance of appearing before the Beth Din. The husband moved to dismiss her action, alleging that any relief would result in an impermissible consideration by a civil court of a purely religious matter. The wife moved for summary judgment.

The trial court denied the husband's motion to dismiss, but the Appellate Division granted it. It held that the State, having granted a civil divorce, had no further interest in the matter. On further appeal, the New York Court of Appeals reversed. It held that the wife was not attempting to have the husband perform a religious practice but merely honor an agreement. The court compared the ketubah to an antenuptial agreement wherein parties agreed to arbitrate a dispute in accordance with a certain law or tradition. Noting that an antenuptial agreement, duly executed, is valid and enforceable, the court held that a ketubah should be afforded no less dignity than any other civil contract calling on parties to submit a dispute to a nonjudicial forum, as long as enforcement of the contract would not violate public policy or the law.

The court rejected the husband's argument that the court's enforcement would violate the constitutional prohibition against excessive entanglement between church and state. It cited the United States Supreme Court's decision in Jones v. Wolf, 443 U.S. 595 (1979), for the proposition that a state may adopt any approach to resolving religious disputes that does not entail consideration of doctrinal matters; in other words, courts may apply neutral or secular principles of law to a dispute. In this case the court held that the issue could be decided solely on the application of neutral principles of contract law.

The court also rejected the husband's argument that the ketubah could not be enforced because it was entered into as part of a religious ceremony.

Avitzur v. Avitzur, 58 N.Y.2d 108, 446 N.E.2d 136, 459 N.Y.S.2d 572, 575, cert. denied, 464 U.S. 817 (1983). The court further held that it was no matter that the ketubah was grounded in religious belief, citing that any action taken by the Beth Din would not affect the civil divorce already granted by the New York courts. In sum, holding that it was merely compelling specific performance of a secular obligation, the court ordered the husband to secure the Get.

Avitzur led the New York legislature to enact N.Y. Dom. Rel. Law 253 (McKinney 1986), which took effect on August 8, 1983. That provision is designed to remove all barriers to remarriage. Pursuant to that statute, the court may not enter a final judgment of annulment or divorce unless the plaintiff has filed a sworn statement that, to the best of his or her knowledge, he or she has removed all barriers to remarriage or that the defendant has waived, in writing, the requirement for such. Where the defendant enters a general appearance and does not contest the requested relief, both parties must swear to removal of any barriers or that the other party has waived the requirement. Additionally, if the clergyman or minister who solemnized the marriage provides a sworn statement that, to his or her knowledge, the plaintiff has failed to remove all barriers to remarriage, the court may not enter a judgment of annulment or divorce.

Significantly, subsection (6) of the statute provides as follows:

N.Y. Dom. Rel. Law 253(6) (McKinney 1986) (emphasis added). Although framed in neutral language, the provision was a legislative response to Avitzur, with the avowed purpose of curbing any withholding of Jewish religious divorces. See Governor's Memorandum of Approval, 1983 N.Y. Laws 2818, 2819.

To address any contention that the civil courts would be involving themselves in religious matters, the statute provides that "[n]othing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue." N.Y. Dom. Rel. Law 253(9) (McKinney 1986). The enactment of this provision seems to have been successful in achieving its goals, as New York cases wherein parties have sought the aid of civil courts to compel a party to provide or accept a Get seem to have been on the decline.

Appellate review has been sought in only a few cases since the law's enactment. In Chambers v. Chambers, 122 Misc. 2d 671, 471 N.Y.S.2d 958 (Sup. Ct. 1983), the parties had agreed to a conversion divorce in a separation agreement entered into before the law became effective. Pursuant to the law, the wife alleged that she had taken all steps within her power to remove any barriers to her husband's remarriage. The husband would not submit an affidavit similarly attesting that he had taken all steps to remove any barriers to his wife's remarriage. Despite the new law, the referee refused to withhold the decree. Pursuant to the separation agreement, the parties had a contractual right to the divorce. A refusal to grant the divorce because the husband failed to comply with the law, effective after the date the parties entered the separation agreement, would be in violation of the constitutional proscription against impairment of contracts. See also Pinkesz v. Pinkesz, N.Y.L.J. Dec. 4, 1984, at 13, col. 3 (although the law, upon its date of effect, applied to all pending annulment and divorce actions, it was held not necessary to amend a complaint to include the required assertions, as long as the other statutory steps were taken; in Pinkesz the complaint was submitted prior to effective date of law).

In another case decided after the law's enactment, Shapiro v. Shapiro, 168 A.D.2d 491, 562 N.Y.S.2d 733, appeal dismissed, 78 N.Y.2d 908, 577 N.E.2d 1061, 573 N.Y.S.2d 469 (1990), the court held that the wife was not relieved of her obligation to pay her husband a distributive award pursuant to an obligation of the par ties' divorce decree where the husband had allegedly failed to obtain a Get acceptable to the Orthodox rabbinical authority. The wife failed to support her allegations that the Get was not acceptable to the Orthodoxy.

IV. OTHER JURISDICTIONS

Divorcing spouses have sought the equitable powers of civil courts in several other jurisdictions outside New York to enforce an obligation to procure a Get. Most of these courts, like those of New York, have found no constitutional impediment to compelling a spouse to obtain or accept a Get, generally holding that the court is enforcing the terms of a contract rather than forcing a religious practice upon a party. A few courts, however, have refused to compel a divorcing spouse to obtain a Get.

A. PROPER TO FORCE COMPLIANCE

Perhaps because it is adjacent to New York, courts in New Jersey have been called upon to address the issue more than once. In Minkin v. Minkin, 180 N.J. Super. 260 434 A.2d 665 (Ch. Div. 1981), the wife moved for a postjudgment order requiring the husband to obtain and pay for the costs of obtaining a Get. The Chancery Division granted her motion. It found that the parties had entered into a contract, a ketubah, wherein the parties agreed that the husband would give the wife a Get if he alleged that she violated a law of Israel, of which the commission of adultery is one such violation. It further found that no provision of the ketubah violated public policy or the laws of the state.

434 A.2d at 666. Most significantly, the court found that requiring the husband specifically to perform would constitute no first amendment violation. The court solicited the testimony of several rabbis. Two testified that the Get is a civil document. They emphasized that it contains no reference to God's name. They additionally said that it does not affect the religious beliefs of people but is merely concerned with a wife's right to remarry. Two other rabbis testified that Jewish law does not simply entail religious law. Rather, it is comprised of two components, one regulating the relations between man and God, which is religious in nature, and one regulating the relations between man and man, which is civil in nature. The Get involves the latter and thus is not religious. Based on this testimony, the court found no conflict with the three-part test announced by the Supreme Court in Lemon v. Kurtz, 403 U.S. 602 (1971): (1) compelling the husband to secure a Get would have the secular purpose of completely dissolving the parties' marriage; (2) compelling the obtainment of a Get neither advances nor prohibits religion; and (3) compelling the securing of a Get is not an excessive entanglement of church and state. As did the New York courts, the Minkin court noted that the New Jersey legislature has authorized clergy to perform marriages, and that has never been considered an excessive entanglement of church and state.

Minkin v. Minkin, supra, 434 A.2d at 668. The court thus ordered the husband's compliance with the wife's request.

More recently, in Burns v. Burns, 223 N.J. Super. 219, 538 A.2d 438 (Ch. Div. 1987), a New Jersey court ordered a husband to submit to the jurisdiction of the rabbinical tribunal to secure a Get. There the parties were married in 1969. This was the second marriage for both, and each had secured a Get from the respective former spouse. The parties entered into a ketubah. They divorced in 1982, although the husband did not provide the wife with a Get.

Subsequently, the husband remarried. The wife wished to remarry as well, but she felt compelled to obtain a Get before doing so. The former husband said that if the wife would invest $25,000 in an irrevocable trust for the benefit of their daughter, he would secure for her a Get. Otherwise, he said that his current religious beliefs did not require him to grant his wife a Get, and that his first amendment rights would be abridged if the court ordered him to secure one.

The court rejected his argument. It said his compromise of securing for the wife a Get in return for $25,000 made this action an issue regarding money, not religion. The court took judicial notice of the Bible and the Encyclopedia Judaica to decipher the meaning of the Get. In doing so, the court expanded the holding of Minkin v. Minkin, 180 N.J. Super. 260, 434 A.2d 665 (Ch. Div. 1981), determining that there were other grounds for requiring a party to secure or accept a Get other than the husband's allegations that his wife had violated a law of Israel.

Burns v. Burns, 223 N.J. Super. 219, 538 A.2d 438, 441 (Ch. Div. 1987). The court held that it had the power to compel the husband to submit to the jurisdiction of the Jewish eclesiastical court, the Beth Din. Whether or not to grant the Get was a decision of the Beth Din.

The Illinois Appellate Court held that a ketubah was a contract, enforceable by a civil court, in In re Marriage of Goldman, 196 Ill. App. 3d 785, 554 N.E.2d 1016 (1990). The parties were married in 1979 in a Reconstructionist Jewish ceremony. They signed a ketubah at the husband's insistence. The wife later decided to adhere to the principles of Orthodox Judaism.

In 1984, the husband petitioned for dissolution. The parties engaged in a bitter custody battle over two children born of the marriage. In a trial in 1986, the wife was awarded custody. The husband had told the wife that he would refuse to secure a Get if she would not agree to joint custody.

At a subsequent trial in 1988, the wife sought the court to compel the husband to grant her a Get. She testified that she signed the ketubah at his urging, after he told her he had obtained a Get for his previous wife, it being necessary for recognition of the divorce. She further testified that the parties went to a store and asked the clerk for an Orthodox ketubah and, as she understood it, their marriage would be governed by the laws of Orthodoxy.

The wife presented two rabbis, who testified that marriage and divorce are secular and that a ketubah is merely a contract. They further explained that the ceremony wherein a Get is obtained is secular in nature, although it does require certain formalities. A rabbi is ordinarily present but is not required. The husband need not profess any religious belief or engage in any religious act. He merely must appoint a scribe to draft a document with certain formal recitations, must sign in the presence of two Orthodox male witnesses, and then must give the document to the wife, saying she is released from the marriage.

In rebuttal, the husband contended that he considered the ketubah poetry or art, not a contract. He presented the deposition of a rabbi who said the ketubah served only a symbolic purpose. The husband also contended that, if a contract, a ketubah is too vague to support specific enforcement. Finally, he alleged that forcing him to obtain a Get would be a constitutional violation.

The lower court found for the wife, ordering the husband to give the wife an Orthodox Get as recognized by the Beth Din. The appellate court affirmed. It held that the lower court's finding that the ketubah was a contract was not against the manifest weight of the evidence. It also held that there was enough evidence that the parties intended the ketubah to be a contract providing that the status and validity of their marriage would be governed by Orthodoxy. The court applied the three-part test of Lemon v. Kurtz, 403 U.S. 602 (1971), and found the test satisfied in its order that the husband obtain the Get. Finally, the court held that its order of specific performance would not violate the husband's free exercise of religion, his dislike of Orthodoxy not rising to the level of a religious belief.

In In re Scholl, 621 A.2d 808 (Del. Fam. Ct. 1992), a Delaware court ordered a husband to grant his wife a Get, as the parties had stipulated in a separation agreement. The parties to that action were married in accordance with the tenets of Orthodox Judaism. In June 1990, they entered into a Stipulation of Settlement. Paragraph one of that stipulation provided for the husband's cooperating with the wife in obtaining a Get.

In August 1990, the husband obtained a Get from the Rabbinical Court of Philadelphia. The wife said this was insufficient since the rabbinical court was a conservative rather than an Orthodox court. Being an Orthodox Jew, a conservative Get would not allow her to remarry under the Orthodox faith.

The court first determined that it had jurisdiction to settle the dispute. The court then determined that compelling the husband to secure an Orthodox Get would not be an impermissible infringe ment of first amendment rights in that the court was not requiring the husband to participate in a religious ceremony or to perform an act contrary to his beliefs. The court further held that even though the stipulation agreement did not specify that the husband would have to obtain an Orthodox Get, it did require him to cooperate with the wife. The husband's subsequent actions suggested he had no intention of cooperating. In fact, a Delaware rabbi testified that he had made arrangements for an Orthodox Get. He had written letters to the Beth Din in Philadelphia and made an appointment for the husband to appear before that rabbinical court. The husband refused to honor the appointment, telling the rabbi he would secure a conservative Get. Even though the rabbi told the husband that the conservative Get would not be acceptable to the Orthodox faith, the husband secured a conservative one anyway. The court, then, finding the husband had breached his agreement to cooperate with the wife and secure an Orthodox Get, ordered him to obtain one within 60 days.

B. IMPROPER EXERCISE OF POWER

A few courts have determined that they do not have the power to require a party to obtain or accept a Get. Despite the foregoing decisions, these courts have usually cited as their reason that forcing a party to obtain a Get would be a violation of a party's first amendment rights. These courts seem to view the obtaining of a Get as a religious, not a secular, action. Most recently, however, a court refused to force a party to obtain a Get, holding that provisions in a ketubah are too vague for enforcement of a contractual obligation.

A Florida court, in Turner v. Turner, 192 So. 2d 787 (Fla. Dist. Ct. App. 1966), affirmed in part and reversed in part a final decree of divorce, wherein the wife had appealed from the financial provisions of a divorce decree and the husband had cross-appealed the part of the order requiring him to "submit to a religious ceremony in which he will be required to take an active part," (id. at 788, that is, to obtain a Get for his wife. The lower court had ruled that the husband would be subject to contempt proceedings and a possible jail sentence if he did not comply. The appellate court affirmed the decree regarding financial provisions. It reversed, however, the lower court's order that the husband obtain a Get, holding that the lower court had no authority to order the husband to participate in a religious ceremony.

In an unreported decision, Steinberg v. Steinberg, No. 44125, (Ohio. Ct. App. 8th Dist. 1982), the court held that a provision of a separation agreement requiring that the parties cooperate with one another in obtaining a Get was unenforceable. In the separation agreement, which was incorporated into the divorce decree, the parties had also agreed that the husband was to provide the wife with alimony. The trial court initially had found that the wife's entitlement to alimony was dependent on her cooperating with the husband in obtaining a Get. The trial court vacated that ruling and ordered the husband to pay alimony and arrearages without compelling the wife to obtain a Get. The appellate court affirmed the subsequent order. It held that forcing the wife to accept the Get would be a violation of the Ohio constitutional provision that no person should be compelled to maintain any religious practice or attend any worship. It further said that a court of law should not enforce an obligation regarding a religious practice, no matter if it was a contractual provision agreed to by the parties.

Recently, the Arizona Court of Appeals refused to order a husband to obtain a Get. The court held that provisions of a ketubah are too vague to be enforced, a defense that had been rejected by the Illinois appellate court in In re Marriage of Goldman, 196 Ill. App. 3d 785, 554 N.E.2d 1016 (1990). In Victor v. Victor, 19 Fam. L. Rep. (BNA) 1589 (Ariz. Ct. App. 1993), the parties were married in 1976, in an Orthodox ceremony in Florida. They signed a ketubah just prior to the marriage. Upon their divorce, the husband refused to grant the wife's request that he obtain a Get. Thus, she sought a court order compelling him to do so. The husband defended, contending that an order for specific performance would be an unconstitutional religious interference and that the ketubah lacked the specificity to be enforced as a con tract.

The lower court had refused to order specific performance, finding that to do so would be impermissible interference with a religious practice. The court of appeals affirmed but on other grounds. It noted that the only specific provision in the ketubah relates to financial obligations. It said that the phrase that a party would "[comply] with the laws of Moses and Israel" was too vague to be enforced. Thus, the court held that the ketubah was not an enforceable antenuptial agreement that would require the husband to obtain a Get.

Despite the Arizona court's recent holding and the other holdings that have refused to order that a party obtain or accept a Get, the overwhelming majority of cases have recognized that ordering specific performance of an obligation to secure or accept a Get does not require the court to become entangled in a religious issue but merely involves compelling a party to honor a secular contractual obligation.

V. MISCELLANEOUS ISSUES

A few other issues have arisen with regard to the legal status of the Get. An early case considered its validity as a divorce. More recent cases have addressed the issue of a party's using the Get as a means of coercion to acquire favorable terms upon divorce.

In an early case, Machransky v. Machransky, 31 Ohio App. 482, 166 N.E. 423 (1927), the former husband filed a declaratory action to have the parties' Get, obtained in Russia, declared a valid and absolute divorce. The parties in Machransky were married in Russia in 1901. Shortly thereafter, they were divorced in Russia, obtaining a Get. The husband subsequently remarried, and he and his new wife immigrated to the United States. The ex-wife pursued them. The husband then filed this action in the Court of Common Pleas to have the Get declared as a valid divorce. The court agreed that the Get was valid, but it went further to grant the parties a civil divorce as well.

The appellate court affirmed. It held that the Get, the Jewish divorce in Russia, did not violate any Russian law. Additionally, the court said that the husband's subsequent remarriage in Russia suggested that the Get was valid, that the parties' marriage had been terminated, and that they were free to remarry. The court said that this system of divorce did not conform to the system of divorce in the United States. Nevertheless, the divorce's validity was to be determined by the laws of the issuing country unless those laws offended this country's own. The court thus held that the Court of Common Pleas was correct in finding that the parties were divorced in Russia. It further held that the lower court's action in divorcing them again was surplusage, but harmless.

A more recent influx of cases has been concerned with a party's use of the Get to manipulate his or her spouse. Specifically, these cases present the pattern where one spouse refuses to obtain or accept a Get unless he or she is able to secure favorable terms in a civil divorce.

For example, in Perl v. Perl, 126 A.D.2d 91, 512 N.Y.S.2d 372 (1987), the husband brought suit to enforce the property settlement provisions of the parties' divorce decree. The parties in Perlwere married in January 1967 and separated one and one-half years later. They entered into a "stipulation agreement," wherein the wife gave to the husband the parties' remaining securities, pledged to him $35,000 for securities she had sold, pledged to him an additional sum of $30,000 payable in monthly installments of $2,000, gave him a deed conveying her one-half interest in the marital home, gave him title to her automobile, and pledged to return to him an engagement ring. In return, the husband quitclaimed any interest he might have in two corporations. One of these corporations was defunct due to the husband's stealing $170,000 from it. The other corporation was the wife's separate property. The husband also agreed to grant the wife a Get.

When the wife refused to carry out certain provisions of the agreement, the husband filed an action for specific enforcement. The wife answered that the agreement was invalid, having been procured by coercion and duress. She also raised three counterclaims (1) recovery for tort damages due to the intentional in fliction of emotional distress; (2) an order to vacate the stipulation agreement; and (3) imposition of a constructive trust on the property given to her husband under the terms of the stipulation agreement.

The lower court granted the husband's motion for summary judgment and dismissed the wife's counterclaims. The appellate court affirmed the dismissal of the tort claim. It explained that expanding tort recovery to cover this type of issue would entangle the courts in an exploration of the validity and sincerity of a position grounded in ecclesiastical law. The court otherwise reversed the lower court's findings. The appeals court held that in a civil action the oppressive misuse of religious veto power by one spouse subjects any economic bargain reached by divorcing parties to review and potential reversal. It found such oppressive misuse in this case.

In Golding v. Golding, 176 A.D.2d 20, 581 N.Y.S.2d 4 (1992), the scenario was much the same. The parties were married in May 1988. Approximately one year later the wife told her husband she wanted a divorce. He told her he would not secure for her a Get unless she consented to his terms. The parties each chose rabbis who drew up three documents in Hebrew containing the husband's demands. The wife later testified that she could not understand the terms but she signed the documents due to the husband's threats of not granting her a Get. He secured for her a Get after she signed the third document.

Subsequently the wife instituted a civil action for divorce on the grounds of cruel and inhuman treatment. The husband answered, raising as defenses that the wife failed to state a cause of action and that the parties' differences had been resolved in a separation agreement, the three documents procured through rabbinical arbitration. The wife moved to dismiss the husband's defenses.

The supreme court ruled that the separation agreement was void, finding the wife to be coerced into signing. The appeals division affirmed, holding that the wife did not freely and voluntarily enter into the agreement. It said that in reaching its determination it was not impermissibly delving into matters concerning religious doctrine. Rather, it was examining the circumstances surrounding the parties entering into a contractual agreement.

In Burns v. Burns, 223 N.J. Super. 219, 538 A.2d 438 (Ch. Div. 1987), the wife brought an action to compel her former husband to grant her a Get because she wanted to remarry. The husband offered to grant the wife a Get only if she would invest $25,000 in an irrevocable trust for the benefit of their daughter. The court held that it had the equitable power to compel the husband to submit to the jurisdiction of a rabbinical court. It said the husband's "offer" was akin to extortion. Thus, the court's taking jurisdiction was not entangling it in a religious matter because the issue in the case was not one of religion but one regarding money.

The recent line of cases shows a pattern of one spouse using the Get as a means of bargaining for favorable terms in a divorce action. The courts have summarily refused to honor agreements where a spouse was coerced into entering an agreement where he or she surrendered valuable rights in order to be granted a Get.

VI. CONCLUSION

Civil courts are occasionally called on to resolve matters regarding divorce laws and customs embraced by certain religious or philosophical groups. One of the most frequent of these types of actions has involved the civil court's ability to compel divorcing parties to procure, in the case of a husband, or accept, in the case of a wife, a Get, a Jewish divorce. A few courts have refused to compel a spouse to obtain or accept a Get, determining that to do so would unnecessarily entangle the court in a religious matter. Most recently, an Arizona appeals court refused to compel compliance with a ketubah, the Jewish marriage contract, which implies that upon divorce a couple will secure a Get. That court found the terms of the ketubah too vague to force a spouse to obtain a Get for his wife.

As the majority of actions suggest, however, the issue is not one of vagueness and not one of infringement on first amendment rights. Indeed, securing or accepting a Get does not call on a party to engage in any religious practice or accept any doctrine. It merely asks a party to comply with certain formalities, formalities not much different from those found in the marriage ceremony itself, whether a Jewish ceremony or some other type. The parties to these actions involving a Get almost invariably entered into a ketubah, a Jewish marriage contract, before taking wedding vows. At that time, the parties did not protest or cry that they were being forced to submit to a religious practice to which they did not adhere. Thus, most typically, where a party refuses to agree to a Get it is usually due to a stubborn insistence. Additionally, as recent cases confirm, some spouses even use the Get as a bargaining means to secure favorable terms upon divorce. Thus, civil courts should not be hesitant to force a party to secure or accept a Get, whether it is because the parties signed a ketubah upon marriage or whether they agreed to procure a Get upon divorce. To force a party to get a Get is a proper exercise of a civil court's equitable powers.

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