Can you arbitrate a Get?


There are very few cases, published or unpublished, in New Jersey that deal with religious marriages. An often-asked question or issue is whether a court can order a Husband to give a Wife a “Get” as a part of the civil divorce proceeding. A get is a document that completes a divorce between a Jewish couple. An observant Orthodox Jewish woman is not free to marry again, under Jewish law, unless given a Get by her husband.

In the case of S.I. v. M.I., an unpublished decision from the Appellate Division on March 22, 2024. The parties entered into an agreement to cooperate an attend the Beit Din (a rabbinical court) to specifically decide the issue of a Get. After a series of post-judgment motions to enforce the agreement. Ultimately the parties attended binding arbitration with a Rabbi and an arbitration decision was entered in August 2022. The decision specifically required the defendant/Husband to give the plaintiff/Wife a Get. The defendant refused to comply.

The plaintiff moved to confirm the arbitration award; the defendant cross-motion to vacate the award. The trial court decided that it would be wrong for the State of NJ to tell someone that ‘they should have to do something in their religion.’ In what seems like an endless cycle of trial courts imposing their personal opinions in the place of the law, the appellate division heard the case and reversed.

After reminding us that the court favors the private resolution of family disputes and that well… a contract is a contract is a contract and we should uphold contracts except in very limited situations, the appeals court turned to note the scope of review of arbitration awards. The scope is very limited.

Notably, the parties’ decision was to submit to either the religious court or a Rabbi as an arbitrator their dispute. It is the law in NJ that people have this right. Just last year the court in Satz v. Satz, 476 N.J.Super.552 (App.Div.2023), affirmed the trial court’s determination that an agreement to be bound by a religious tribunal was an enforceable contract under the laws of this state.

In Satz, the parties agreed to submit their case to the Beit Din. The parties entered into an agreement, testified with regard to the agreement, they both agreed to be bound by the agreement, and the trial court accepted this agreement. Again, the parties specifically agreed that the issue of the Get would be submitted to the Beit Din. The defendant/Husband did not comply. Notably, there was substantial motion practice surrounding the enforcement of the agreement.

Facts sound familiar? They are. Indeed, these cases are more common than most attorneys or litigants realize and it is critical to understand the law that applies.

In both this decision and in Satz, the appeals courts focused on the fact that the courts of this state were being asked to enforce a civil contract – not a religious one. Specifically, the parties decided to enter into a civil agreement to submit their disputes to binding arbitration. The Beit Din, for our purposes, served as the equivalent of an arbitration tribunal. As such, the review by the trial court of the arbitration award was limited. In fact, arbitration awards can only be vacated for fraud, corruption, or other similar wrongdoings. While the courts have some specific requirements that must be met for the arbitration of child custody matters, there is no restriction on spouses submitting any issues that they might otherwise submit to the superior court or any issues that they cannot resolve on their own – to an arbitrator.

In fact, as both of the cases noted here reaffirm, the parties can even agree to submit a question of religious law to binding arbitration and the agreement to arbitrate that issue must be upheld. There is no legal bar in NJ to the courts deciding issues that involve religious organizations per se. "[C]ivil 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." Ran-Dav's Cnty. Kosher v. State, 129 N.J. 141, 162 (1992)

In other words, the court was not being asked to decide anything religious at all. Rather, the court was merely being asked to enforce an agreement to arbitrate and then confirm and enforce the arbitration decision.

The issue presented here is that there is a longstanding line of cases in NJ that specifically address the legal question in both Satz and S.I. So why did two trial court judges decide the issue so differently?

Trial court judges come from different backgrounds and often times never had a family law case prior to becoming a judge. Often, they do not recognize the nuances between deciding a purely legal issue and dealing with the factual disputes unique to family law matters. In both of these cases, you had an obstreperous litigant. Judges are humans and are often frustrated by the pettiness they see in family part cases.

This is why it is critical to have an experienced attorney who knows how to present the information to the court in a manner that provides the court a proper legal basis for the relief sought. In both cases, the husbands were self-represented during the appeal and what appears to be the motions at the trial court. The wives were represented by law firms. In Satz, they had experienced matrimonial counsel. They won at the trial court and they won on appeal. It speaks volumes as to what the difference in the presentation to the trial court must have been in the two cases.

Second, it takes two people to get married and one to get a divorce. Litigants who behave in an obstreperous manner, are hostile to the process, and otherwise refuse to abide their own agreements, need to have harsher consequences than a mere order enforcing a prior order. Sanctions such as counsel fees or monetary sanctions must be sought and should absolutely be awarded by the trial court.  Both of these cases involved husbands who refused to participate in good faith and then after being ordered to do the right thing, refused.

Finally, our judges need to have a better understanding of what is being asked by them in enforcing agreements. Here it was clear that one judge understood the task to enforce a civil order and another felt that it was beyond his ability to enforce anything religious. When parties agree to submit an issue to arbitration the court must confirm and enforce the decision of that arbitration tribunal. There is a large Jewish population in NJ and this is a recurring issue. It is hard to cut through the noise in these cases, but a clear and dispassionate approach is often best.

If you have a case involving arbitration of a divorce or relating issues, contact the experienced attorneys at LaBletta & Walters for a consultation.

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