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Confronted with a request to apply the colloquially dubbed “Second Get Law” (DRL 236B6(o)) in a matrimonial matter, Judge Bartlett, an Orange County, New York judge, reviewed the statute and declared that she found it unconstitutional as applied to the case at hand, and possibly unconstitutional on its face. Judge Bartlett is the first judge to do so since the law was passed in 1992.

The case, Masri v. Masri, is an Orange County matrimonial action wherein the husband refused to grant an Orthodox Jewish divorce to his wife, thus failing to fulfill New York State’s legal requirement to “remove barriers to remarriage.”

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Due to the husband’s refusal, the wife, who was the plaintiff in the action, requested that the court apply New York State law DRL §236B(6)(o) in awarding non-durational maintenance. Pursuant to that section of the Domestic Relations Law, a court may consider a party’s failure to remove barriers to remarriage as a factor in making an economic determination for the purposes of equitable distribution, and awarding non-durational maintenance.

In Masri, the plaintiff-wife showed that her husband’s refusal to grant her a Get would preclude her from dating or remarrying within her Orthodox Jewish community. Due to Jewish law’s proscription against remarrying without a Get, a husband’s refusal to grant a religious divorce detrimentally affects the economic status of a woman in the Orthodox community, as marriage is an economic partnership and she is precluded from engaging in such a partnership.

Despite the clear economic impact of the husband’s refusal to give a Get in Masri, the court found that constitutional concerns prevented it from applying the Second Get Law. In its decision, the court stated:

This court holds that in the circumstances presented here, increasing the amount or the duration of Defendant’s post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or “Get” would violate the First and Fourteenth Amendments to the United States Constitution. There is no evidence that the Defendant has withheld a Get to extract concessions from Plaintiff in matrimonial litigation or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant’s withholding a “Get” but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment.

It is unclear whether there was an application before the court with regard to the constitutionality of the plaintiff’s request to apply the Second Get Law or whether the court addressed the issue of constitutionality sua sponte.

Statutes are passed by the legislature, and the process of passing a bill into law includes a consideration of the proposed law’s constitutionality. In order to maintain a system of checks and balances, the founding fathers empowered the legislature with the power to pass laws and the judiciary with the power to interpret the laws enacted by the legislature. The democratic and practical success of our government system depends on the judiciary and the legislature exercising, but not exceeding, their powers.

The Second Get Law is one of a system of laws that Judge Bartlett swore to uphold upon becoming a member of the judiciary. Therefore, she is just as obligated to apply the Second Get Law as she is to apply the basic equitable distribution, child support, and maintenance laws. In other words, the judge is tasked and empowered with the ability to apply and interpret laws. A Supreme Court judge may decide the constitutionality of a law but in this case that law has been around for fifteen years and has been upheld by appellate courts.

Two cases in particular provided through analyses of the Second Get Law in their applications. First, the case of S.A. vs. K.F 88-NYS2226 (2nd Dept. 2009), in which the wife was required to pay maintenance to the husband, states “it would be unjust and inappropriate to have a Wife pay spousal support for the Husband’s benefit while she is still “chained” to him.”

In the case of Pinto v. Pinto 260 AD 2nd, before the Appellate Division (the court that hears appeals from the Supreme Court cases), the husband appealed a Supreme Court decision granting the wife 100 person of the marital property in the event the husband failed to provide a Get. The Appellate Division stated that doing so was not an improvident use of the Supreme Court and judges’ discretion. Appellate Courts within the jurisdiction of Orange County have enforced the Second Get Law, clearly having no question about the law’s constitutionality.

The Court in Masri took on a legislative role. DRL 236(b)(6)(o) has not been repealed, nor has it been held unconstitutional by any Appellate Court in the state. It has been applied in numerous cases in the Second Department of New York State and beyond. On the same point, the Appellate Division held in Avitzur v. Avitzur that it is not unconstitutional for a court to direct that parties exit their marriage in the same way they voluntarily entered into it, even if that includes religious ceremony.

The idea that the judiciary may not legislate is entrenched in legal precedent. In Kupferman v. Katz, 41 misc. 2d 124 (1963), the court cited Herlands v. Surpless 258 App. Div. 275, on this issue: “it seems clear from the authorities that the courts will not interfere with legislative action…” Later on, the court in Kupferman cited the Court of Appeals decision in Matter of the City of New York (Ely Ave.) 217 N.Y. 45: “the presumption that the legislative action has been devised and adopted on adequate information and under the influence of correct motives will be applied…” It is well settled that neither the wisdom nor the basic constitutionality of legislation is intended to be the subject of judiciary inquiries.

The court in Masri seems to have taken upon itself to address the constitutionality of DRL 236B(6)(o) and to use this as a basis on which to refuse to apply law that it is mandated to apply by the state of New York. Exceeding the jurisdiction of the judiciary is unlawful and flies in the face of legal precedent. Doing so goes against the deeply entrenched legal tradition that disallows courts from acting as renegade legislatures. The issue of the constitutionality of the statue was addressed during its passage through New York’s Assembly and Senate.

This author recently represented a woman in a case in which the husband refused to give a Get. In the unpublished decision, the court took into consideration the fact that in the Orthodox community withholding a Get places an economic burden on the aggrieved party. The ability to remarry has adverse economic effects on the party that remains chained and the court issued an order with a different economic component if the person did not grant a Get within ninety days. Thus, one questions why the judge in Orange County took a position that the Second Get Law is unconstitutional. After fifteen years and many cases, this statute has been applied and appointed and found to be in compliance with the law.

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Martin E. Friedlander, Esq., is the principal of Martin Friedlander, PC, a boutique New York City law firm specializing in matrimonial and family law with offices in Midtown Manhattan and Brooklyn. A member of the New York State Bar Association, he has lectured on matrimonial matters and been consulted by practitioners throughout the world as well as by rabbinical courts. He has appeared before rabbinical courts throughout New York as well as provided CLE lectures on this topic. He is also the founder of the Yashar Coalition and can be contacted at mef@mflawyer.com.