My recent blog post, Appellate Division Rules That A Court Cannot Compel Arbitration on Get Issue Absent Agreement, discussed the constraints faced by secular courts in the context of Get refusal. The article identified the significant difficulties faced by courts when asked to intervene in aid of agunot – women chained to a dead marriage by their recalcitrant husbands who refuse to give them a Get – due to the state’s prohibition against entanglement with religious doctrine under the First Amendment of the United States Constitution.
In New Jersey, this issue has been undecided for several decades, with the courts remaining divided as to whether a recalcitrant husband can be compelled to give a Get and/or into arbitration proceedings Bais Din (Rabbinical Court) proceedings to adjudicate the matter under religious doctrine. Under emerging case law, however, a trial likely is prohibited from compelling parties to a Bais Din arbitration proceeding on the Get issue absent their clear agreement to do so.
While that insight certainly illustrates the ways in which a secular court may be hamstrung in its ability to compel a husband to provide a Get, it still does not resolve the ultimate issue of how a court can adequately address this issue without implicating First Amendment concerns.
As a post-script to that discussion, a bill was recently passed in the New Jersey Assembly that may offer some answers to the outstanding questions faced by the courts in these unfortunate situations.
A1475, passed unanimously by the Assembly on March 30, 2023, added the following bolded language to New Jersey’s existing domestic violence statute that could prove useful in the context of Get refusal:
In considering the necessity of ordering a restraining order, the court shall consider but not be limited to the following factors:
(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;
(2) The existence of immediate danger to person or property;
(3) The financial circumstances of the plaintiff and defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the protection of the victim’s safety;
(6) The existence of a verifiable order of protection from another jurisdiction; and
(7) Any pattern of coercive control against a person that in purpose or effect unreasonably interferes with, threatens, or exploits a person’s liberty, freedom, bodily integrity, or human rights with the court specifically considering evidence of the need for protection from immediate danger or the prevention of further abuse. If the court finds that one or more factors of coercive control are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. Coercive control may include, but shall not be limited to:
(a) isolating the person from friends, relatives,
transportation, medical care, or other source of support;
(b) depriving the person of basic necessities;
(c) monitoring the person’s movements, communications, daily behavior, finances, economic resources, or access to services;
(d) compelling the person by force, threat, or intimidation, including, but not limited to, threats based on actual or suspected immigration status;
(e) threatening to make or making baseless reports to the police, courts, the Division of Child Protection and Permanency (DCPP) within the Department of Children and
Families, the Board of Social Services, Immigration and Customs Enforcement (ICE), or other parties;
(f) threatening to harm or kill the individual’s relative or pet;
(g) threatening to deny or interfere with an individual’s custody or parenting time, other than through enforcement of a valid custody arrangement or court order pursuant to
current law including, but not limited to, an order issued pursuant to Title 9 of the Revised Statutes; or
(h) any other factors or circumstances that the court deems relevant or material.
In the event the bill is signed into law, its language may offer an avenue for agunot in obtaining some legal relief from secular courts.
Indeed, duress has long been considered by New Jersey courts as a form of religious coercion, albeit in other contexts, such as contract defense (see blog post Religious Coercion is Legal Duress).
Under the proposed amended domestic violence statute, lawyers and litigants may be able to argue that Get refusal is likewise the type of coercion that would give rise to an actionable claim by an agunah against her recalcitrant husband.
The bill also gives rise to potential identification of other types of religious extortion that could exist in the context of a Jewish divorce.
Religiously-based of overt and covert pressures – while perhaps invoked in accordance with Jewish law – could prompt an individual to act in a milieu of religious coercion that impugns their legal rights and give rise to claims of religious extortion/coercion.
It is not often that a piece of legislation has the ability to impact what is elementally a religious-based issue. However, this particular bill is poised to potentially give agunot at least some tools to address an issue that has long been seen as an unsolvable scourge on the Jewish community. I will provide updates as the bill makes its way through the New Jersey legislature.
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.