Get refusal is an issue to which secular courts have yet to find an adequate solution because of constraints implicating freedom of religion and the state’s prohibition against entanglement with religious doctrine. In New Jersey, the issue has been undecided for several decades, with the trial courts remaining divided on the issue of whether a recalcitrant husband can be compelled to give a get and/or go into arbitration proceedings or beit din proceedings to adjudicate the matter under religious doctrine.

Neither the New Jersey Appellate Division nor the New Jersey Supreme Court has issued a definitive decision either, leaving attorneys and litigants without clear guidance on the limits of a Court’s involvement on the religious aspects of Jewish Divorce.

Cases addressing this issue are few and far between. However, a case was recently decided by the Appellate Division on February 16, 2023, touching on the limits of a trial court’s ability to expand the reach of arbitration on the get issue absent parties’ clear agreement to do so.

The parties in the recently decided case of Bierig-Kiejdan v. Kiejdan were married in 1992 in a Jewish ceremony, wherein a ketubah was executed.

On November 24, 2015, the parties agreed to arbitrate the issues in their divorce, stating in their arbitration agreement that they would: “arbitrate any issue arising out of the marriage that could be raised in Superior Court … both pendente lite and final.”

Their agreement to arbitrate further provided that “the arbitrator shall determine whether an issue or dispute is within the scope of his jurisdiction,” and that all post-judgment applications had to be made to the court unless the parties executed another arbitration agreement.

During the divorce arbitration proceedings, the wife requested that the arbitrator compel husband to provide her with a get. The parties disagreed about the interpretation of the get provision in the ketubah during the course of the arbitration proceedings, but neither party had introduced a copy into evidence.

The husband asserted the wife had to pay him to receive a get, but the wife testified the ketubah did not contain any provision relevant to a get. Despite the disagreement, the husband agreed that the process to provide the wife a get would voluntarily be commenced in a beit din following the final judgment.

The arbitrator entered a decision in December 2018, addressing the get issue as follows:

By way of background, when a Jewish couple marries, they sign a marriage contract called a ketubah. When a Jewish couple divorces, they need a Jewish divorce decree, known as a get, in order to dissolve the religious marriage contract, the ketubah. “Any man or woman who does not obtain a get cannot remarry, and any subsequent children born to an individual without a get are considered bastards who cannot partake in certain religious practices and rituals.” Absent contractual language in the ketubah providing specific provisions and requirements for the granting of a get, a husband in the Jewish religion solely dictates whether the get will be granted.

Recognizing the lack of a translated ketubah, the arbitrator concluded the beit din should adjudicate the get issue. “Based upon [husband’s] assurances that” he would begin seeking a get after entry of the FJOD [final judgment of divorce], the arbitrator refused to compel the husband to give the wife a get. However, the wife retained “the right to seek judicial intervention in the future if … unable to obtain a get through the Bet Din.”

The Superior Court judge thereafter confirmed the arbitration award and entered a Final Judgment of Divorce, which provided:

Based on… defendant’s assurance at trial before the arbitrator that… defendant will voluntarily commence the process of obtaining a Jewish get from the Jewish Rabbinical Council, the Bet Din, immediately following the entry of a FJOD so that the rabbinical court could resolve the parties’ respective rights and obligations under the ketubah, the arbitrator denied… plaintiff’s request that… defendant be compelled to provide her with a get without prejudice. Because the arbitrator denied… plaintiff’s request without prejudice,… plaintiff reserves the right to seek post-judgment judicial intervention in the future if she is unable to obtain a get through the Bet Din.

A dispute between the parties thereafter ensued in court, wherein they disagreed about the selection of rabbinic authority that would oversee the get process. The wife asserted that, pursuant to the terms of the ketubah, the husband was not entitled to select the rabbi, and provided the court with a translation on the letterhead of the Orthodox Beth Din of Philadelphia, which she claimed supported her position.

In response, the husband pointed out that the ketubah was never introduced at arbitration, and in any event, he was complying with the beit din of his choosing to provide a get. Moreover, he objected to the court addressing the issue, as the matter was a religious undertaking, not appropriate for a secular court’s adjudication.

The trial court entered an Order instructing the husband to commence the get proceedings within 45 days, using “a Bet Din of the Rabbinical Assembly and of the Jewish Theological Seminary of America or a designate or successor” as prescribed in the wife’s translation of the ketubah.

The husband, thereafter, filed a Motion for Reconsideration, providing his own translation of the ketubah, supporting his position. The wife opposed the motion.

The trial court entered an order directing the parties to return to arbitration so the arbitrator could “continue [his] analysis of the relevant issues and provide a written opinion.” In his supplemental memorandum of decision (MOD), the judge wrote:

As noted in a previous MOD…, it is clear that the arbitrator did not order defendant to obtain a get based upon defendant’s representation that he would do so. However, the court cannot enforce an obligation that was not ordered by the arbitrator despite defendant’s statement. Therefore, that MOD confirmed that defendant was ordered to begin the process of obtaining a get.

…

Clearly, the parties are outside the twenty-day period. However, the issue was clearly addressed by the arbitrator but simply not decided based on defendant’s representation that he would go through with giving plaintiff a get. The court cannot simply find that it does not have the authority to decide an issue without providing a remedy. Therefore, this court finds that it is within its equitable powers to extend the twenty-day period to the date that the original applications were filed. If the court does not do this, it will cause an endless stalemate that could not be overcome by either party. Therefore, the parties are ordered to go back to the arbitrator and submit to binding arbitration …

However, there was a glaring issue with this directive. The judge had ordered the parties to return to arbitration, post-judgment, without a clear mutual agreement that they consented to additional arbitration proceedings. Instead, the judge concluded he had the “equitable power” to extend the 20-day deadline in the parties’ arbitration agreement, which extinguished the jurisdiction of the arbitrator after the arbitrator rendered his decision.

The husband appealed, contending that the parties had been improperly compelled to arbitration to resolve the issue of the get and to interpret their ketubah. The husband further argued the arbitrator’s authority terminated upon confirmation of the arbitration award pursuant to the terms of the arbitration agreement and interpretation of the ketubah is a religious issue beyond the scope of the court and arbitrator’s authority.

The Appellate Division agreed with the husband and reversed the trial court’s decision compelling the parties to arbitration, stating: “Here, at no time post-judgment did the parties provide written consent to return to arbitration and they did not enter into a new arbitration agreement to address the get.”

In so finding, the Appellate Division noted that arbitration was a creature of contract, and parties cannot be ordered to arbitration absent their mutual agreement. It cited Paragraph 41 of the parties’ arbitration agreement, which explicitly states: “There shall be no further jurisdiction of the arbitrator to consider any further applications of either party, absent written consent of the parties to expand the scope of arbitration.”

Since the parties did not explicitly agree in writing to arbitrate the get issue post-judgment, reversal was warranted in the Appellate Division.

While this case provides insight into the ways in which secular courts are hamstrung in their 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.

There is still no clear direction; however, this case does reinforce the fact that a court cannot compel parties to arbitrate absent their agreement to do so, which is a helpful caveat for practitioners and litigants alike.

Eliana T. Baer is a partner in the Family Law Practice Group of Fox Rothschild LLP. Baer 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 Baer at (609) 895-3344, or [email protected].