In a Jewish divorce, a husband’s attempt to enforce the dower amount in the Ketubah in lieu of a wife’s property interests or spousal support/alimony will probably not be met with success. However, the far greater problem is the wife who gets her property rights, support, custody, and divorce in civil courts, but who is forced to remain married to a man who refuses to give her a Get.
By Alexandra Leichter, Family Lawyer
Enforcement of the Ketubah Dower Amount in a Jewish Divorce
Very little litigation has revolved around the dower amount in the Ketubah, as it is the traditional amount dating back over 2,000 years. Most ketubot have a pre-printed amount of dower that is the ancient Hebraic amount of 200 zuz (equivalent to 2.2 pounds of silver – currently about $400), which was supposed to be enough for the wife to support herself for a year. A husband’s attempt to enforce this amount in lieu of a wife’s property interests or spousal support/alimony will probably not be met with success in civil family law courts. It is not considered to be the true value of what a woman is to receive upon her divorce or upon her husband’s death. Not only is the ketubah amount minuscule, it is in pre-printed format, and usually has not been subject to any negotiation. (In fact, the Ketubah is written in the Aramaic language which is not spoken or understood by the average bride and groom.) Any attempts to enforce the ketubah amount would probably fail the test of most prenuptial agreement laws in the U.S., and will fail the test of standard contract law. In fact, there is no record of a single case in the U.S. where such a ketubah dower was enforced in lieu of property division or spousal support.
There are exceptions to the standardized amounts in the ketubah, especially in some Persian and Middle Eastern Jewish communities where the dower amount may be a meaningful negotiated sum. (The Cairo Geniza, which contained over 200,000 Jewish manuscripts dating between 870 C.E. and 1880,1 for example, is replete with ancient ketubot promising hefty sums to the bride in case of divorce or death.) In such cases, the wife might succeed in enforcing her ketubah as long as it can be interpreted under neutral principles of contract law, and does not entangle courts in matters of religion.2 However, if the parties seek to enforce the ketubah as a premarital agreement to make it the sole remedy of support and property, courts would have to examine it and the conditions under which it was negotiated, signed, etc. to determine if it complies with premarital agreement statutes.3 Most likely, it will not.
Enforcement of the Ketubah as a Tool for Ordering a Get
The far greater problem is the wife who gets her property rights, support, custody, and divorce in civil courts, but who is forced to remain married to the man who refuses to give her a Get. There have been some attempts in civil courts to force a husband to give a Get via a “specific performance” action. In such cases, litigants attempted to enforce the ketubah as a contract whose terms, they maintain, require the husband to abide by the laws of “Moses and Israel” to give his wife a Get – in other words, to have the ketubah be “specifically performed” by ordering the husband to abide by its terms. The problem with such suits is proving that the ketubah mandates the giving of the Get, without having the court resort to religious law interpretations of that marriage contract.
Civil enforcement of a Jewish marriage contract in this manner has met with variable degrees of success. In Re Marriage of Goldman4, Avitzur v. Avitzur5, and Minkin v. Minkin6 resulted in successful civil enforcement of the Ketubah to order the husband to give a Get. (However, many Rabbinical authorities claim that a civil order compelling the giving of a Get is coercive, and thus invalidates the subsequent Get the husband gives. This provides the wife with a Pyrrhic victory.)
More recent cases in several states rejected requests to compel a husband to give a Get, and held that enforcement of a ketubah to order a husband to give a Get was an unauthorized civil entanglement into religion, and that the ketubah was not specific enough (at least without interpretation by religious authorities) to be construed as mandating the husband give his wife a Get. In Aflalo v. Aflalo7, the New Jersey court disapproved of Minkin, supra, on Constitutional grounds, refusing to order the husband to give a Get. Similarly, in Victor v. Victor,8 the Arizona court refused to grant specific performance of the ketubah, claiming the Jewish marriage contract had no specific terms regarding the granting of the Get. Similarly, a trial court in Los Angeles refused to grant specific performance of the Ketubah, or to order the husband to give a Get, or even to impose penalties for intentional infliction of emotional distress upon the husband who demanded a hefty price in exchange for the Get; the court reasoned that this was strictly a religious document involving religious law, and it would require too much entanglement by a civil court in religious matters.9
Statutory Aids for Women Seeking a Jewish Divorce
Given the vagaries of the judicial system, and the likelihood that civil courts will not deem the ketubah to be an enforceable agreement that would allow them to order the husband to give a Get, New York State adopted what is commonly referred to as the “Get law”10 in 1983, which prohibited the granting of a divorce to a party requesting it, if that party failed to “remove barriers to the other party’s ability to remarry.”
However, that New York statute required only that the plaintiff seeking the divorce remove all impediments to the other party’s ability to remarry; it did not help a plaintiff wife seeking divorce who was ready to remove the impediments (i.e., accept a Get), but whose husband (defendant) was unwilling to do so (i.e., give the Get).
New York State Enacts a Second Get Law for those Seeking a Jewish Divorce
Therefore, in 1992, a second “Get law”11 was enacted in New York State, which enables the judge in a divorce case to award a larger interest in the marital property and/or increase the spousal support award to the wife whose husband refuses to give her a Get (or to the husband if the wife refuses to accept the Get). Again, this statute does not mention the word Get. It is couched in civil legal language which allows the court to consider, when awarding property or support, whether one party has refused to “remove the impediments to the other party’s ability to remarry.” Indeed, this statute applies to Jewish as well as Islamic divorces.12 Although this New York statute has been under Constitutional attack in several cases, no appellate decision rendered to date has held it unconstitutional. (No other country or U.S. state is known to have a similar statute).
The most vocal opponents of the second Get law have been ultra-orthodox rabbis. They claim that the specter of a penalty to be imposed by the courts, of loss of property or payment of additional spousal support, creates an atmosphere of “coercion” on the husband, so that the Get is rendered invalid just by the mere existence of such a law in New York. (There are ultra-Orthodox rabbis who maintain that no Get granted in New York since the enactment of the second Get law is valid, as there is a cloud of “coercion” that taints every Get that has been given in N.Y. since 1992).
Notwithstanding the legal and religious attacks on the Get statute, it is undisputed that the number of cases of possible Agunot in New York has decreased – probably as a result of the Get law. (The term Agunah [singular] or Agunot [plural] are almost universally used to denote women who are chained to a marriage because of Get-refusal.)
The first and second New York Get laws, however, have not been emulated by a single other state in the U.S. Statutes similar to the first New York Get law were enacted in Scotland, Ontario (Canada), England, and South Africa, but an attempt to enact such a statute in Maryland failed. No other state in the U.S. has a Get law, and no country or state is known to have any statute similar to the second New York Get law. Indeed, the second New York Get law is workable in New York primarily because New York is an “equitable property division” state; in other words, property acquired during a marriage will be “equitably” divided by the court, not – as in California, for example – “equally” divided. Thus, New York trial courts have far more latitude in determining what is “equitable” in the property division, and its rulings are highly unlikely to be overturned on appeal.
2 U.S. Const. amend. I.
3 Two California cases predating the Premarital Agreement Act held that enforcement of a dower in a religious marriage contract violates the prohibition against contracts encouraging divorce by delineating amounts to be paid upon divorce. In re Marriage of Noghrey, 169 Cal App. 3d 326 (1985); Dajani v. Dajani, 204 Cal. App. 3d 1387 (1988). Both involved Islamic marriage contracts with a specified dower (mahr) to be paid to the wife upon divorce. Islamic marriage contracts (nikkah) are similar to the ketubah, although many nikkah have negotiated terms, amount of mahr, conditions under which the wife may obtain a divorce, etc., while the ketubah is generally not negotiated, but more often pre-printed with ancient dower amounts that have no monetary relevance today. In theory, a ketubah can be crafted as to amounts and to satisfy Premarital Agreement statutes to allow for enforcement. For example, In re Marriage of Bellio, 105 Cal. App. 4th 630 (2003) held that a prenuptial agreement providing payments on divorce is no longer void in California on the ground that parties may not contract provisions in case of divorce, so long as the requirements of the Premarital Agreement Act are met.
4 In re Marriage of Goldman, 554 N.E.2d 1016 (Ill. App. Ct. 1990).
5 Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983).
6 Minkin v. Minkin, 434 A.2d 665 (N.J. Super. Ct. Ch. Div. 1981).
7 Aflalo v. Aflalo, 685 A.2d 523 (N.J. Super. Ct. Ch. Div. 1996).
8 Victor v. Victor, 866 P.2d 899 (Ariz. Ct. App. 1993).
9 Indeed, husband successfully argued that his refusal to give the wife a Get should not be penalized or questioned by a civil court, because the civil court would become excessively and unconstitutionally entangled in religion by the mere analysis of which religious court – to wit, Orthodox, ultra-Orthodox, or Conservative – should be involved in the Get process.
10 N.Y. Dom. Rel. Law § 253.
11 N.Y. Dom. Rel. Law § 236B.
12 In Islamic cases, shari’a courts are empowered to grant the wife a divorce at her request, even if the husband refuses. However, shari’a courts may also refuse to give the wife a divorce if she is not deemed worthy of obtaining the divorce against her husband’s will. In other words, the husband may throw up all sorts of impediments to the wife’s request to obtain a divorce. Orthodox Jewish women do not even have the option of obtaining a rabbinic court order to be divorced – only the husband can give his wife the Get.
Alexandra Leichter is a California State Bar Certified Family Law Specialist, a fellow of the American Academy of Matrimonial Lawyers (AAML), a fellow of the International Academy of Family Lawyers (IAFL), and an AAML Certified Family Law Arbitrator. A partner in the Beverly Hills family law firm of Leichter Leichter-Maroko, LLP, she has written and lectured widely on Jewish and Islamic divorce laws affecting civil divorces. www.llmfamilylaw.com
Jewish Divorce and Family Law: The Ketubah and the Get
Under Jewish law, marriage is a contract willingly entered into by a man and a woman, with the marriage contract (“Ketubah“) defining each one’s rights and obligations. Jewish divorce, however, is accomplished only unilaterally: by the man writing a Get. If her husband refuses to write a Get, the consequences for a woman can be life-altering.
A previous version of this article was published in the IAML Law Journal, Vol. 2 (Summer 2009). Copyright © 2009-2020 Alexandra Leichter. All rights reserved.