In my last article for The Link, “GETting it Right: The Intersection Between Religious and Secular Divorce” (September 14, 2023), I explained the need for changes in the law and religious clergy roles to better address the need for a husband to give a GET (halachically valid divorce) to his wife under Jewish law. I made the point that secular courts in New York and New Jersey (as is the case for all states, for that matter) do not have the authority to enforce religious divorce decrees, including Jewish divorce decrees. The enforcement of religious divorce decrees remains a matter within the jurisdiction of religious authorities and community norms. Secular courts typically do not compel or enforce religious actions or obligations, as they are separate from the religious sphere.
Without a law allowing the courts to address the issue of a religious divorce or enforcement of religious premarital agreements, courts have no authority to force a recalcitrant husband to give the GET. The courts can only enforce financial sanctions provided in a premarital agreement. Is this enough?
A recent decision by New Jersey’s Appellate Division is making headlines. This case affirms a divorcing Jewish wife’s constitutional right to protected free speech to post facts about her husband’s refusal to give a GET on social media. However, I want to make it clear that no one should take this as an open invitation to post GET refusal videos on social media without first obtaining proper legal advice as to whether the post “crosses the line.” The case is not a blanket right and was based on the particular facts of that case. There will be cases where a post may not be afforded First Amendment protection and will constitute harassment. Extreme caution is needed.
S.B.B. VS. L.B.B. FV-20-1159-21 is a case (parties’ names were left as initials for privacy) in New Jersey involving the posting of a video by a divorcing wife in New Jersey. On her social media, L.B.B. posted a video asserting her estranged husband had refused to give her a get and asked anyone who could to “press”the plaintiff to give her a get. On March 19, 2021, after the video was made, the husband obtained a Temporary Restraining Order (TRO)against the wife based on a domestic violence complaint alleging harassment, including cyber harassment. He alleged that he had received a number of anonymous calls and subsequently worried he would be attacked by members of the community due to the plea in her video, now gone viral. He referred to his own father as having been a victim of attacks due to GET recalcitrance, which made the fear now very real to him.
The social media post took a life of its own and soon became a campaign with Hashtag #FREE[L.B.B.]” & photo image. The post that went viral stated: This man has refused to give his wife a get. His name is [S.B.B.]. He is holding his wife chained for over a year and a half. He lives in Elizabeth NJ. If you see him, tell him to free his wife. #FREE[L.B.B.].
The lower court had made a finding that the Jewish community was prone to violence against GETrefusers, and not only issued the TRO but also ordered the wife to pay counsel fees. On appeal, the decision of the lower court was reversed. The Appellate Court held that “without credible evidence that the video incited or produced imminent lawless action or was likely to do so, defendant’s speech does not fall within the narrow category of incitement exempted from First Amendment protection.” Speaking for the Court of Appeal, Judge Gooden Brown added: “Likewise, because the judge’s finding of a privacy violation relied upon the same factual finding, the record does not support the finding that the manner of defendant’s communication violated subsection (a) of the harassment statute. As our Supreme Court explained, N.J.S.A. 2C:33-4 criminalizes only those “private annoyances that are not entitled to constitutional protection.” (Hoffman, 149 N.J. at 576.) Defendant’s communication does not meet that criteria.”
Judge Gooden Brown felt the implicit holding that the defendant was aware of and intentionally availed herself of such violent tendencies was not supported by the record. The judge said that “the video posted by the wife in that case was intended to get a GET. The video did not threaten or menace[the] plaintiff, and nothing in the record suggests that [the] plaintiff’s safety or security was put at risk by the video.”
The Court drew the line in J.B.B. v. L.B.B. and allowed the social media post as a non-threatening and useful tool for the wife to help secure her GET. However, I recall a case I had last year in which my client was granted a final restraining order based on part of the offenders’ harassing social media posts. In summary, each situation of a recalcitrant GET issuer will vary greatly based on the facts of that particular case. Before diving into social media posting, I urge those facing GET resistance to consult with their rabbi, community leaders, and legal professionals who are well-versed in both secular and religious laws to understand their options and the potential consequences of their actions. The door to expanded recourse of an agunah may have been opened, but I suspect that we have not heard the end of this topic yet.
Robert Kornitzer Esq. is certified by the Supreme Court of New Jersey as a matrimonial law attorney. He has been ranked by Best Lawyers as one of New Jersey’s top family and divorce attorneys for the past five years. As a dual law and MBA degree holder from Boston University, with extensive business experience, Kornitzer brings unique expertise in both the legal and financial aspects of all issues related to divorce. Contact [email protected]
