A Rabbinical Divorce Ordered By The Civil Court

Amicus Curiae Briefs

Rebuttal of Amicus Curiae Brief, Submitted by the Attorney General, Pursuant to Executive Law #71 in Support of Domestic Relation Law #236 Docket No. 97-03205, King County Clerk's Index No. 20427/93

Being submitted by Rabbi David Shure, a practicing Rabbi and director of the Institute of Research for Biblical Talmudical Law, and who is affiliated with and is well known by the Rabbinical Courts of North America and Israel.

The Attorney General of New York State, claims, that the said contested laws were designed to monetarily compensate the spouse who desires to remarry but who cannot do so, because of a religious barrier that remains, which is the religious divorce. The A.G. further claims, that the economic situation of the said spouse will also be considered, so that if the said spouse is financially independent and does not require any extra financial consideration, then there will be no special considerations for the said spouse as far as Equitable Distribution is concerned. This means that the spouse cannot make a claim for compensation later, if his/her financial situation worsens. There must be a provision in the law to allow money or property to be held in escrow, pending the future financial circumstances of the said spouse.

The A.G. was not informed of the facts on what actually transpires at Rabbinical Courts. There are spouses who come to a Rabbinical Court requesting a religious divorce out of courtesy to their family and friends. These spouses are not of the same persuasion of their family members or friends, who requested them to get a religious divorce, and in fact, they do remarry without a religious divorce when one of the spouses refuses to cooperate. However, at the time of their divorce proceedings, they regard their inability to be granted a religious divorce as a social barrier to remarriage but not a religious barrier. The difference between the two is, that a social barrier is temporary and when necessary they will remarry without the religious divorce. The contested amendments were enacted for the purpose of helping a spouse who has a religious barrier to remarriage, as claimed by the A.G., not a spouse who will remarry when she cannot obtain the religious divorce. Yet, the spouse who regards her barrier to remarriage as a social barrier, will still file in court that the barriers to his/her remarriage has not been removed.

The A.G. admits in his brief that it would be unconstitutional for the judge to ask the spouse if the barrier is social or religious. The A.G. may claim, that the judge may ask the spouse if the barrier is permanent or temporary. However, the law does not differentiate between temporary or permanent barriers to remarriage. One can argue, that a temporary barrier is not a hardship to be taken into account when deciding Equitable Distribution. However, the law does not state that the judge must clarify if the barrier is permanent or temporary. If the law would state that this must be clarified, then the law may be challenged as unconstitutional, because that question clearly means, do you believe in the religious precept of a religious divorce or not.

The contested N.Y. State laws now known as D.R.L. (632) (B)(6)(d), and D.R.L. (632) (B)(5)(h), bind these laws to cases, where there are barriers to remarriage and then only can the spouse request relief under these laws. It is quite clear from the original papers of the sponsors of these said laws and by this test case of Becher against Becher, that the term barrier to remarriage in these said laws refers to a religious Orthodox Jewish divorce called "get". The term barrier to remarriage does not differentiate between husband or wife, and either husband or wife can demand relief under these said laws if either spouse claims that he or she cannot remarry without a "get".

Whether a "get" is or is not a barrier to remarriage, as far as the wife is concerned, depends on the religious beliefs of the individual. There are a significant number of women who demand a "get" but who do not believe that it is a barrier to remarriage. These women are theoretically, not supposed to be granted relief under this law. As far as the husband is concerned, the husband must first go before a Rabbinical Court, and request a ruling whether they will grant him relief without needing a "get" and consequently the "get" is not a barrier to his remarriage in this case, or not, and the "get" is a barrier to his remarriage in this case. Therefore, the husbands barrier to remarriage is dependent either on the ruling of a religious body, the Rabbinical Court, or in his religious persuasion.

If a spouse were monetarily compensated under the said laws, and thereafter remarries without a "get", this spouse should be charged with fraud, and compelled to return the additional property received under these said laws. The spouse can now claim, either that he or she found a more lenient Rabbinical Court which permitted him or her to remarry, or that he or she is now of the persuasion that a "get" is not a barrier to his or hers remarriage. Therefore, the term "barrier to remarriage" binds the said laws to religious beliefs and to decisions by religious courts. It is excessive entanglement of church and state, and is in violation of the first amendment of separation of church and state.

If the law was intended to financially compensate the said spouse and not to coerce a religious divorce, why did they create a new concept of monetary compensation where one spouse is given a lump sum, without taking into consideration the fact that there are women who demand a religious divorce but when there is difficulty in obtaining one, they remarry without the religious divorce. Why did they not enact a law based on the provisions of alimony, pay as you go, pay as you need. Surely that is the proper way and fair way to deal with such a situation. This would also allow compensation if the said spouses financial situation would worsen.

Taken these facts into consideration, and the letters of those who sponsored the said amendments, it is quite obvious that the purpose of the contested amendments are to monetarily coerce a religious divorce. Although, some may call it an incentive and not coercion, it is still interference with the orthodox jewish religion who regard monetary coercion as coercion, to invalidate the religious divorce.

Even Rabbi Schwartz of the R.C.A. agrees that monetary coercion by the civil court invalidates a religious divorce. The disagreement between him and the rest of the authorities is that he feels that he can live with the law because everyone who comes to his Rabbinical Court will tell the truth if they are under coercion of the court or not.

Page 20, lines 10-12. If the appellant can file "that it is not within his power to give a valid get" and therefore he has done all within his power to remove the barriers to remarriage. If so, then for whom was this law made. As explained before, all authorities agree that civil court coercion due to the contested amendments invalidate the religious divorce.

Rebuttal of Amicus Curiae Brief, Submitted for Assemblyman S. Silver, by N. Lewin Docket No. 97-03205, King County Clerk's Index No. 20427/93

Page 5, line 11. The figure of 15,000 "agunos" is not true. According to the Rabbinical Courts there may be no more than, from 10 to 20 agunos at any one time, and that these cases are solved faster than a contested divorce case is completed in court.

Page 6, lines 14-16; and page 10, lines 15- 18. The spouses are free to remarry by law and some do without a religious divorce. There is no barrier to their remarriage by law, it is only by their own choosing do they choose to participate in a religious divorce.

Page 8, paragraph 2; and page 11 footnote 1. The court regards the clergyman as a justice of the peace to perform a civil marriage, not a religious one. The religious ceremony is recognized by law as a civil marriage, the religious divorce has no such status and is therefore to be regarded as a religious ceremony in order to perform a commandment that is found in the Bible. The Rabbis did not assign blessings to all commandments of the Bible for various reasons, and not because these commandments are not considered a religious ceremony. Each religion has its own definition of a religious ceremony, standards of other religions cannot be used for the orthodox jewish religion.

Page 11, paragraph 2; and page 14 12-16. Taking away ones equitable distribution or ones wealth in one lump sum, and giving it to his spouse, and not requiring him to pay the spouse in the form of alimony, as you go and as you need, in respect to the said amendments, is tantamount to coercing a religious divorce, and not "to insure that his spouse be left with sufficient resources to maintain herself etc.". The spouse may remarry soon afterwards, as does happen, or may be personally wealthy. The religious divorce ceremony is a religious ceremony as explained before, therefore, the said amendments do coerce a religious ceremony and invalidate the religious divorce.

Page 15, lines 1-4. The writer of this brief is not an expert in Rabbinical divorce law and has stated incorrectly that, "Couples who have been married secularly are not subjected to any requirements whatever." The Rabbinate of Israel are by law empowered to perform religious divorces that are recognized by the government, there decisions on marriage and divorce laws, are also binding on the Rabbinical courts out of Israel who are in the minority as opposed to the majority of Israeli Rabbinical courts. It is a well known fact that couples who had lived together as man and wife, even though they did not undergo a religious ceremony, are still considered by the Israeli Rabbinate, to be married by jewish law, to the extent of needing a religious divorce in order to remarry. It is only in the case of a women who left her first husband without participating in a Religious divorce ceremony, and then went to live with another man and had a son from the second man, that some authorities do not declare this child a bastard, because at this point the matter cannot be corrected by giving a religious divorce, and therefore, they rely on some authorities who do not regard a non religious marriage by non observant couples as a religious bond.

Page 18, line 14. "Some authorities in jewish law disapprove etc." We have proved by the submitted signature list that it is the vast majority of the Rabbinical courts plus the government of Israel that disapprove of the said amendments.

Page 18, paragraph 2. This matter is not an internal religious dispute. It is recognized organizations that are not legally affiliated with each other, and who represent communities and a country and a government that oppose the said amendments and who are petitioning for their right to practice their religious freedoms without government interference. Anyone divorced due to the said amendments will cause many problems for the Rabbinate of Israel, since they will invalidate any divorce that is a result of the said amendments.

Page 21, footnote 2. The writer of this brief is not an expert in Rabbinical divorce law and has incorrectly compared the Israeli law to the New York Sate law. The reason why the said amendments invalidate a religious divorce is that coercion is only permitted by a Rabbinical court, directly or through one who is an instrument of the Rabbinical court. A judge of a civil court cannot be an instrument of the Rabbinical court because he must obey civil law and cannot state that the sole basis of his decision is due to the decision of the Rabbinical court. In Israel however, the Rabbinical court is empowered by the government to give and to coerce a religious divorce. Consequently, a civil court judge in Israel who writes that his decision to coerce a religious divorce is based on the decision of the Rabbinical court, is considered an instrument of the Rabbinical court.

Rebuttal of Amicus Curiae Brief, of the Institute for Public Affairs of the Union of Orthodox Jewish Congregation of America. Docket No. 97-03205, King County Clerk's Index No. 20427/93.

Page 1, paragraph 1. The "UOJCA" financial base is through giving Kosher certifications and their Rabbinical staff as a whole and a large part of their synagogues oppose their filing of the said amicus curie brief which is to support the said amendments.

Page 17, lines 7-11; and page 21, paragraphs 2 and 3. Taking away ones equitable distribution or ones wealth in one lump sum, and giving it to his spouse, and not requiring him to pay the spouse in the form of alimony, as you go and as you need, in respect to the said amendments, is tantamount to coercing a religious divorce and not to "simply allow a judge to make equitable distribution on the basis of non- religious principles etc.". The spouse may remarry soon afterwards, as does happen, or may be personally wealthy. The religious divorce ceremony is a religious ceremony, since he is doing it to fulfill a commandment stated in the Bible, as explained in the next paragraph, therefore the said amendments do coerce a religious ceremony and invalidate the religious divorce.

Page 22, paragraph 2. The court regards the clergyman as a justice of the peace to perform a civil marriage, not a religious one. The religious ceremony is recognized by law as a civil marriage, the religious divorce has no such status and is therefore to be regarded as a religious ceremony in order to perform a commandment that is found in the Bible. The Rabbis did not assign blessings to all commandments of the Bible for various reasons, and not because these commandments are not considered a religious ceremony. Each religion has its own definition of a religious ceremony and standards of other religions cannot be used for the orthodox jewish religion.

Rebuttal of Amicus Curiae Brief, on behalf of Getting Equitable Treatment Inc. Docket No. 97-03205, King County Clerk's Index No. 20427/93.

Page 4, paragraph 3. The appellants's expert quotes the opinion of the Rabbinate of Israel who have many Rabbinical courts all over Israel and are recognized by the Israeli government as the sole authority for divorces for all jewish citizens. This expert also quotes all the major Rabbinical institutes and orthodox Rabbinical courts as being opposed to the said amendments.

Page 7, paragraph 2. It is well known that Rabbi Feinstein opposed the law and his learned grandson Rabbi Mordechai Tendler, who studied by Rabbi Feinstein, and telephoned assemblyman Sheldon Silver before these said amendments were passed telling him that his grandfather was opposed to this law.

Page 8, paragraphs 2 and 3. Taking away ones equitable distribution or ones wealth in one lump sum, and giving it to his spouse, and not requiring him to pay the spouse in the form of alimony, as you go and as you need, in respect to the said amendments, is tantamount to coercing a religious divorce, and not to "maintain the same, or similar standard of living, as before the civil divorce, etc.". The spouse may remarry soon afterwards, as does happen, or may be personally wealthy. The religious divorce ceremony is a religious ceremony as explained before, therefore the said amendments do coerce a religious ceremony and invalidate the religious divorce.

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