For decades, halachic and legal authorities have grappled with the age-old problem that arises when recalcitrant husbands refuse to provide a get, leaving their wives chained to a dead religious marriage with no path to exit. That is because it was almost impossible for an agunah, chained woman, to find any legal remedies that could assist her due to the state’s prohibition against entanglement with religious doctrine under the First Amendment, which prohibits a judge from even addressing the question of whether a husband should or should not be compelled to give a get to his wife under halachic dictates. And, unless a husband agrees to submit to arbitration in the Beit Din on the get issue, there is almost nothing that can be done, either legally or halachically, to force the husband’s hand.
However, the recent passage of A-1475/S-1809 (Lopez, Speight, Haider/Ruiz, Cunningham), signed into law by Governor Murphy on January 8, 2024, offers a glimmer of hope that the law can address this issue in a way that you may not have expected: by amending the Prevention of Domestic Violence Act to provide an avenue of relief for victims of coercive control.
Coercive control as a form of domestic violence is not an unfamiliar term to agunot, and oftentimes describes their lived experiences both during a marriage and after its legal termination. While physical abuse is not always present, victims of domestic violence may experience subtle yet insidious forms of control: isolation from family and friends, financial coercion, emotional manipulation and constant threats of religious repercussions. These tactics, as recognized with New Jersey’s recent passage of the coercive control legislation, can effectively imprison a woman within the confines of her own marriage.
New Jersey’s landmark legislation offers a powerful tool to combat this silent abuse. By recognizing how psychological control manifests as a form of domestic violence, the law empowers agunot seeking protective remedies to present a stronger case. Judges can now consider evidence of isolation, financial dependence and emotional manipulation when ruling on these cases, giving them grounds to intervene and potentially force the husband’s hand.
A-1475/S-1809 adds 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:
(20) Coercive control. As used in this paragraph, “coercive control” means a pattern of behavior against a person protected under this act that in purpose or effect unreasonably interferes with a person’s free will and personal liberty. “Coercive control” includes, but is not limited to, unreasonably engaging in any of the following:
(a) (a) Isolating the person from friends, relatives, or other sources of support;
(b) Depriving the person of basic necessities;
(c) Controlling, regulating or 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, to (i) engage in conduct from which such person has a right to abstain, or (ii) abstain from conduct that such person has a right to pursue;
(e) Name-calling, degradation, and demeaning the person frequently;
(f) Threatening to harm or kill the individual or a child or relative of the individual;
(g) Threatening to make public information or make reports to the police or to the authorities;
(h) Damaging property or household goods; or
(i) Forcing the person to take part in criminal activity or child abuse.
This language may offer an avenue for agunot in obtaining some legal relief from secular courts, as duress has long been considered by New Jersey courts a form of religious coercion, albeit in other contexts, such as contract defense. For example, in the 1994 Appellate Division case Segal v. Segal, the court invalidated a Marital Settlement Agreement where the husband withheld a get until the wife conveyed a Lakewood property to him in the divorce.
The court noted:
[E]ven if the document(s) signed by plaintiff had, in fact, been the product of rabbinical arbitration, as defendant alleges, this still does not preclude the court from examining its substance and the procedure by which it was adopted so as to ascertain that there was no fraud, duress or overreaching. The judiciary must merely refrain from delving into matters concerning religious doctrine. At any rate, the Supreme Court properly found that there was no indication of rabbinical arbitration, simply that the rabbis had acted as go-betweens for the parties.
According to the Segal court, conditioning an agreement on obtaining a get is “akin to extortion.”
Under the amended domestic violence statute, and relying on Segal and other similar cases, 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, particularly because get refusal often arises after a marriage oftentimes characterized by the patterns of abuse also addressed in the amended statute.
The new law also gives rise to potential identification of other types of religious extortion that could exist in the context of a Jewish divorce. For example, overarching and palpable sentiments are sometimes expressed in Beit Din that if one proceeds to civil court, he or she is transgressing Jewish law and will be ostracized from the community. Furthermore, sometimes undertones exist in Beit Din that custody would surely be lost for one party or anther in civil court.
These types of overt and covert pressures – while perhaps rightfully religiously based – could prompt an individual to act under a threat 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 new law 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.
Eliana T. Baer is a partner in the Family Law Practice Group of Fox Rothschild LLP, representing clients statewide in divorce, asset distribution, support, custody, domestic violence, premarital agreements, and Appellate Practice. Eliana has been selected to the Best Lawyers in America (2024), Super Lawyers – Rising Stars (2014-2023), New Leaders to the Bar by the New Jersey Law Journal (2018), “Top 10 Under 40” list by the National Academy of Family Law Attorneys (2017), and “Trailblazers” list in Divorce Law (2016)*. Eliana appears in both civil and rabbinical courts. You can reach Eliana at (609) 895-3344, or [email protected].
*Award methodology available at https://www.foxrothschild.com/eliana-baer/honors-awards.