Under Jewish law, a married person must first receive a “Get” (Jewish divorce) before remarriage. The process of giving and accepting a Get is typically coordinated and managed by a Rabbi or Rabbinical court (Beth Din). The practice by some husbands to withhold a Get is frowned upon, but nevertheless exists. The result of such refusal is that the wife cannot remarry under Jewish law, and she is then characterized as an “Agunah”. Beyond the emotional and social ramifications of being an Agunah (“Agunot” plural), there are foreseeable adverse financial consequences resulting from the continued inability to remarry. The financial consequences of preventing remarriage and pooling of financial resources, include forced dependency on public assistance of a non-moneyed spouse.
The creation of Agunot in New York State and hardships that resulted, contributed to the passing of a Get law. The underlying principle is that it is fundamentally unfair to allow one spouse, usually the husband, to withhold a Get from his wife for spite or negotiating leverage within the context of a secular divorce. In 1983, the New York Domestic Relations Law (DRL) section 253 was enacted to remedy the inequity and social burden described. The law is entitled “removal of barriers to remarriage.”
DRL section 253 provides among other things, that a person suing for divorce in New York must take all necessary steps to remove all barriers to their spouse’s remarriage. If the divorce case is uncontested (both parties agree to the divorce), then both parties must remove all barriers to the other’s remarriage. The inability of a Jewish spouse to remarry as a result of the other spouse’s refusal to effectuate a Get, is considered a barrier to remarriage. This means that the husband must give the Get and his wife must accept it, so that either of the parties may marry again in the future. HOWEVER, the provisions of DRL section 253 are not effective when a party opposes the divorce. If a party does not ask for a divorce, then he (or she) is not required under the law to remove the other spouse’s barriers to remarriage (obtain a Get).
One remedy to this problem is for couples to enter into a prenuptial or postnuptial agreement. Such an agreement will require each spouse to authorize and accept a religious divorce. The courts of the State of New York will enforce these types of agreements and compel parties to obtain a Get. Absent such an agreement, the courts may not compel a recalcitrant spouse to effectuate a religious divorce, and many Jewish couples do not have these types of agreements. However, the courts can compensate a person who is left an Agunah by effectively punishing the party that has failed to remove that spouse’s barrier to remarriage.
In 1992, the New York State legislature addressed this issue by amending the DRL to include section 236(B)(5)(h) which states that "[i]n any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of barrier to remarriage. . .” This provision codified a prior court decision which characterized a husband's refusal to give a Get as another "factor" under DRL section 236 (B)(5)(d)(13) to take into consideration when determining the distribution of assets between parties. Schwartz v. Schwartz, 235 A.D.2d. 468 (2d. Dep’t 1997).
In a trial court decision in Kings County, the court decided that the husband was entitled to maintenance as well as a portion of his wife’s pension. At that trial, it was established that the husband refused to give a Get. The court’s award of maintenance and a portion of the wife’s pension were made contingent on the husband giving a Get within 45 days of the entry of the Judgment of Divorce; otherwise, he would not receive those benefits. S.A. v. K.F., 880 N.Y.S.2d 226 (Sup. Ct. Kings Co. 2009)
In another case, the Appellate Division found as proper an award of one hundred percent of the marital property to the wife in the event the husband did not deliver a Get within a specified period of time. Pinto v. Pinto, 260 A.D.2d. 622 (2d. Dep’t 2001).
Of course, the courts of the State of New York are aware of the Get law(s) and the applicable laws that may be employed to assist the spouse who is not receiving a Get. A recalcitrant spouse would be wise to proceed with an abundance of caution.
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