Recently, several decisions have been released by the Appellate Division concerning when, where, how, and when a Court compel parties to submit to the authority of the Bais Din on Get-related issues.
My February, 2023 blog entitled “Appellate Division Rules That A Court Cannot Compel Arbitration on Get Issue Absent Agreement” described the case of Bierig-Kiejdan v. Kiejdan, where the higher court overturned a decision of the lower court after the judge ordered the parties to return to arbitration in Bais Din on the issue of the Get, post-judgment, without a clear, mutual agreement that they consented to additional arbitration proceedings on that issue.
On August 18, 2023, the Appellate Division came out with a decision, Satz v. Satz, that is effectively the inverse of Bierig-Kiejdan v. Kiejdan, ruling that where the parties agree to submit to the Bais Din’s authority on the issue of the Get, that agreement must be enforced.
In Satz, the parties were involved in 2 years of contentious litigation between 2018 and 2020. A critical area of dispute between the parties centered on Wife’s desire to obtain a Get, which the Husband opposed.
The parties were ultimately able to settle their disputes in the midst of an ongoing trial in September, 2020, whereupon the Court took testimony from the Husband to confirm his agreement to submit to the Bais Din for a proceeding to determine whether the Wife could obtain the Get. The Husband testified that he would respond to any summons, hazmanah, received by the Bais Din, and would be bound by any decision made by the Bais Din concerning the Get, which he agreed would be decided in accordance with Jewish Law.
Thereafter, a Marital Settlement Agreement was drafted. Article IX of the MSA is titled, “Beis Din Proceedings/Get Issue.” That article provides in its entirety:
Both parties agree to respond to any summons from a [b]eis [d]in regarding the [g]et which shall be decided in accordance with Jewish [l]aw. By virtue of this agreement the parties are not waiving any religious beliefs, rights or remedies they each may have under Jewish law in the [b]eis [d]in process (except with respect to the process of identifying a choice of [b]eis [d]in by the [defendant] now, as provided in the next to last sentence of this paragraph). The parties have freely and voluntarily entered into the custodial and financial terms of their legal settlement. Neither party shall seek to alter any provisions of the custody and financial aspects of their legal settlement before the [b]eis [d]in. Nothing herein, however, shall prevent either party from seeking whatever other relief that may be available to either party including damages. By way of example, neither party may seek to change a term of the agreement however, they both have the right to assert any financial claims for relief that they may have before the [b]eis [d]in. Both parties shall timely participate in the [b]eis [d]in proceeding. Both parties will answer any summons in a prompt manner. [Defendant] represents that he may be opposing the [plaintiff]’s request for a [g]et. The parties agree that their submission to the [b]eis [d]in shall constitute an agreement to be bound by the [b]eis [d]in [d]ecision on any issue the [b]eis [d]in addresses, and the [b]eis [d]in shall have the authority to order monetary awards relating to the Jewish law matters before it, which awards may be confirmed in a court of law. Both parties shall participate in this process freely and voluntarily. Both parties shall abide by the recommendations of the [b]eis [d]in. Any violation of this section will result in sanctions to be ordered by the court, including but not limited to monetary sanctions, arrest and the [parties] shall be permitted to seek any relief available to her/him in the [c]ourt with regard to this issue. The [defendant] agrees that he has freely and voluntarily chosen to select as a [b]eis [d]in for this process, which selection he makes shall be at his sole option, which will be either the Rabbinical Court of New City or Mechon Lihoyra’ah. This paragraph was an essential term of this Agreement, without which this term sheet would not have been agreed upon.
At the uncontested divorce hearing following the parties’ execution of their MSA, the Husband specifically testified that he agreed to inclusion of the Get/Bais Din provisions and that he was not forced or coerced into them. He also testified that he would cooperate with the Bais Din proceedings, respond to summons issued by that tribunal, and abide by the decisions of the Bais Din. He also acknowledge that his failure to comply would result in sanctions by the civil court.
Following the entry of the Final Judgment of Divorce, incorporating the MSA, the Husband failed to comply with the Get provisions. The Court directed the Husband to comply during a Case Management Conference and entered an Order providing that “[d]efendant Allen Satz shall participate in the [b]eis [d]in proceedings pursuant to Article IX of the [p]arties’ MSA.”
In January, 2022, the Wife requested that the Court enforce the Get/Bais Din provisions of the MSA. The Husband opposed the application. In March, 2022, the trial court granted the Wife’s application, and further assessed counsel fees against the Husband.
The Bais Din hearing occurred on May 11, 2022, and on July 6, 2022, the Bais Din issued a 15 page ruling finding that the Husband had not properly responded to summonses from the rabbinical courts, and that he was obligated to divorce the Wife “forthright and immediately.” The Bais Din further determined that the Husband’s failure to deliver the Wife a Get under these circumstances “is a form of abuse.”
In the Husband’s ensuing appeal, he argued, most notably, that the trial court had no authority to order him to arbitrate in the Bais Din; that the trial court erred by relying on a “religious document” and by requiring defendant’s participation in Bais Din proceedings; and the trial court violated the First Amendment by ruling on a religious agreement.
In denying the Husband’s appeal, the Court noted the policies underlying consensual settlements in the State of New Jersey, and reinforced the notion that consensual and voluntary Marital Settlement Agreements are to be enforced.
The Court agreed with the trial court in almost all respects, noting that there was nothing in the MSA that rendered it unconscionable, contrary to public policy, or otherwise unenforceable. The Court found that, in accordance with a plain reading of the MSA, not only did the Husband agree to respond to summonses issued by the Bais Din, but also to participate in proceedings.
Most interestingly, the Court then addressed the Husband’s First Amendment arguments; an issue that has plagued the Courts of the State of New Jersey for decades, and stymied any clear guidance on the issue by this state’s higher courts.
Nothing that the Courts have not been in complete accord on the issue of whether a civil court has authority to enforce the Ketubah to compel the issuance of a Get, the Appellate Division distinguished that type of fact pattern from this situation wherein the trial court was asked to enforce a civil contract, not a religious one.
The Court further noted that the trial court did not substantively review or affirm the Bais Din’s ruling; rather, the Bais Din’s ruling was essentially a report confirming plaintiff’s assertion that defendant failed to participate in the Bais Din’s proceeding in violation of his obligations under the MSA.
The cited case law in support of the Appellate Division’s decision regarding this issue is a good roadmap for litigants and practitioners who seek to have religious disputes adjudicated in civil court:
As our Supreme Court has recognized, “civil courts may resolve controversies involving religious groups if resolution can be achieved by reference to neutral principles of law, but that they may not resolve such controversies if resolution requires the interpretation of religious doctrine.”…Court specifically noted that “[n]eutral principles may be particularly suited for adjudications of . . . civil contract actions,” so long as the dispute does not “involve interpretations of religious doctrine itself.”
The United States Supreme Court has recognized that the Establishment Clause is violated where there is clearly no secular purpose for the state action being challenged and the “activity was motivated wholly by religious considerations.”
[Internal citations omitted].
With the above in mind, the Court stated that the orders entered in this case “scrupulously avoid entanglement with religion because the trial court applied well-established principles of civil contract law, not rabbinical law.” The Court opined that latter body of law remained solely within the province of the Bais Din and was not interpreted or applied by the Family Part judge, nor by the Appellate Division.
The takeaway from both this case and the February, 2023 decision of Bierig-Kiejdan v. Kiejdan: Settlement Agreements and proposed Orders should be tailored to serve the secular purpose of enforcing contractual obligations, which in turn serves the secular purpose of encouraging divorce litigants to resolve their disputes by negotiating and entering an MSA.