What is a Ketubah? What is a Get? Are they legally enforceable? A Ketubah, also known as the “Jewish marriage contract” is a ritualistic agreement between a bride and groom, rooted in the Jewish religion (it can actually be traced back to Biblical times). This “agreement” is more of a religious ritual nowadays than anything else, but it basically says the ways that the man will take care of the woman and sometimes includes details of a dowry. It’s usually a beautifully decorated document that is executed by a Jewish couple on their wedding day. But are they legally enforceable in the United States?
Then, there’s a Get which is essentially another term for a Jewish bill of divorce. However, it’s more complicated than that. It is important to note that only the husband has the authority to grant the Get to his wife. The woman does not have the ability to initiate or grant the Get to the man, but she does need to accept it. As you can see, this unique religious law can sometimes lead to challenges for some Jewish couples. The question remains: is a Get enforceable in a U.S. court? If you get the Get, can you remarry without the civil divorce legally in the U.S.? The simple answer is no.
Then, there’s prenups. Prenups are non-religious contracts between a couple that plans to marry. Prenups define financial obligations in the event of a divorce and sometimes death. They can also include some non-financial terms, such as pet ownership and insurance. However, can you include religious clauses, such as a Get in your prenup? Let’s dive in and explore the differences between Ketubahs, Gets, and prenups!
The background of Ketubahs, Gets, and prenups
Before we get into the legal intricacies, let’s explore the fascinating historical background of Ketubahs and Gets. This will provide valuable insight into the origins of these significant religious concepts.
Ketubah
In a Ketubah, the groom promises to make the bride the beneficiary of his estate should he pass and makes sure to take care of her during and after the marriage. It may also take note of the money given to the bride’s family from the groom.
The text of the Ketubah usually includes the date and location of the wedding, the names of the bride and groom, the promises from the groom to the bride, and more. The bride may also include her dowry and her acceptance of the groom’s proposal.
The ritual surrounding a Ketubah may include reading it out loud at the wedding and displaying it for all to see. Different Jewish communities embrace different styles of Ketubah. Some people choose to decorate it which gives it an aesthetically pleasing touch.
Traditionally, the Ketubah is not signed by the bride, groom, or Rabbi; instead, it is signed by witnesses. These witnesses are traditionally chosen by the groom, of the Jewish faith, not related to the bride and groom, and male. People typically choose their witnesses based on people they can trust and are close to (but not familially related).
Gets and Get-refusal
A Jewish Get is a religious divorce document, specifically used to dissolve a marriage under Jewish law. It is a physical, written document that is given by the husband to his wife, effectively ending the marriage from a religious standpoint. Without a Get, the spouse may be prevented from being able to remarry within the Jewish community. Women who are civilly divorced but who don’t receive a Get are known as “chained women” because they are essentially tied to a “dead” marriage.
The procedure for a Get is performed in front of a Beth Din (a Jewish court of law, consisting of Rabbis) with two kosher witnesses in attendance. This process of effectuating the divorce (i.e., the Get) is very complex and must be followed exactly to be approved.
You can imagine the issue here: if a spouse doesn’t receive a Get from their spouse, but wants to end the marriage, they may not be able to remarry another person of the Jewish faith. This is isolating and detrimental to people in the Jewish community. Keep in mind, that Jewish couples can still receive a regular, civil divorce without a Get if they so choose, but they are not able to divorce under Jewish law without a Get.
A “Get-refusal” is the phenomenon when a man refuses to give a Get to his wife. What sometimes ends up happening is men use giving the Get as leverage for financial gain, as Lisa Zeiderman puts it in her New York Law Journal article. These men may utilize the “Get-refusal” to negotiate with their wives to receive money in exchange for the Get, get better monetary settlements in terms of child support and maintenance, and even leverage custodial rights.
Prenups
A prenup (short for “prenuptial agreement) is a legal document between two future spouses. The contract is only effective if executed before the wedding, not after. It lays out the financial responsibilities of both parties during the marriage, in the event of a divorce, and sometimes death. Prenups typically include clauses about property division and alimony as well as estate rights. In New York, a prenup is required to be recorded in the same way as a deed, which basically means it requires certain language and specific types of acknowledgments to be included in the contract to be considered valid.
Here are some other requirements for a valid and enforceable prenuptial agreement in New York:
- The agreement must be in writing and signed by both spouses before the wedding takes place
- The prenup must be notarized in the form required to file a deed in New York
- Both parties must provide financial disclosure
- Both parties must enter into the agreement voluntarily (and not under some type of force)
- The terms included in the agreement must be lawful
- The agreement must not be unconscionable (meaning extremely unfair)
New York law: The enforceability of Ketubahs and Gets
Now that you understand the basics of these important contracts, let’s dive into whether or not they are actually enforceable in the United States and how they intersect with each other.
Ketubah enforceability
Remember, a Ketubah is a religious contract in the Jewish faith signed on or before the wedding day as part of a religious ceremony. Some people may wonder–is a Ketubah technically a prenuptial agreement? As mentioned in the previous section, specific criteria distinguish a prenup from any other contract in the state of New York. This includes putting the contract in writing, signing it before the wedding day, notarizing it in the same way as a deed, entering the agreement voluntarily, and not including unlawful or unconscionable terms. Ketubahs traditionally do not include these things (the correct language and notarization, for example), meaning they cannot be considered a prenup.
However, a court cannot meddle in religious affairs, meaning if you bring your Ketubah that has all the elements of a prenup to a court, but it requires a court to analyze the contract based on religious principles, then it won’t be enforced. On the other hand, if your Ketubah has only secular clauses (which is unlikely given the nature of the document), then a court may be able to enforce some aspects of it by using contract law.
The bottom line? Your Ketubah is not a prenup, you will need to get a regular, civil prenuptial agreement to protect yourself in the state of New York. There may be some clauses that are enforceable such as arbitration provisions, as you will read in the case law below, but it’s a narrow exception that shouldn’t be relied on.
New York Ketubah case law
In re White’s Estate: When a NY court does not enforce a Ketubah
This case discusses the distribution of the deceased husband’s estate. Husband and wife signed a prenup in 1965 saying that she waived her right to a share in his estate (meaning, she wouldn’t get any money when he passes away). After that, in 1966, they participated in a religious Jewish ceremony, whereby a Ketubah was signed between the couple and the Ketubah said that the wife would be taken care of in widowhood. The wife then argued that this Ketubah should be enforced and override the previous prenuptial agreement signed the year before.
The court disagreed with the wife and stated, “It is the opinion of this court, after giving particular consideration to the above quote from Rabbi Derby’s affidavit, that the ‘Ketubah’, or Jewish Marriage Contract, has no binding effect on the property rights of the signers under the laws of the State of New York.” (See the case In re White’s Estate). It further explained that, “The Ketubah in our times serves to make the marriage a ‘religious’ ceremony rather than a mere ‘civil’ contract.” (See the case In re White’s Estate)
The takeaway? The Ketubah was not an enforceable contract here because the court said it’s not a civil contract in the eyes of New York law.
Avitzur v. Avitzur: When a NY court enforces only one aspect of a Ketubah
In 1966, a Jewish couple signed a Ketubah before getting married. This document said they wanted their marriage to follow Jewish laws. It also included an arbitration clause that said, if needed, a Jewish court (Beth Din) should resolve certain matters.
In 1978, the couple got divorced in a regular U.S. court. After the divorce, the wife wanted a Jewish divorce too, but the Jewish court (i.e., the Beth Din) said both of them needed to come to the court to get it. The husband refused to go. The wife then filed a claim with a U.S. court to enforce the Ketubah as a valid contract and force the husband to go.
The result? The court held that it could enforce only the non-religious aspects of the Ketubah (which, in this case, was a pre-marriage contract). Essentially, the court only upheld the arbitration agreement of the Ketubah (the requirement to use the Beth Din). The court made sure to state that it cannot enforce the religious aspects of the Ketubah. The takeaway? Although the Ketubah is a religious document, that doesn’t stop the U.S. courts from enforcing arbitration.
Get enforceability in a prenup
Remember, a Get is a bill of divorce under Jewish law, separate from a civil divorce under U.S. law. A Get-refusal is when a man refuses to give the Get to his wife, thereby leaving her “chained” to the marriage and isolated from her religious community. The question becomes: can you put a requirement to give a Get (i.e., no Get-refusal clause) in a prenup and enforce that clause in a U.S. court? The answer appears to be yes as you will see below: if you have a valid contract such as a stipulation of settlement in a divorce or a prenuptial agreement that requires the Get, you have provided the Court with a civil mechanism (not religious) to enforce your right to a Get. The lesson here is to be sure that you include the Get in your prenup and/or your divorce settlement agreement to increase your opportunity to receive the Get.
As Lisa Zeiderman put it in her New York Law Journal article, there may be consequences for a spouse who withholds a Get if it’s being used as leverage for financial gain. For example, If a man refuses to provide the Get to his wife unless he is paid $500,000 in return for it, a NY court may impose penalties on the man in that situation. In other words, if you can’t show that the Get is being used to get money or causing financial problems, then a NY court can’t force someone to give the Get or punish the person who’s refusing it. This is because it goes against the First and Fourteenth Amendments of the U.S. Constitution which separates church and state.
New York case law on Gets
Let’s dive into the world of Gets in New York case law. Below, you will find three cases that explain when a New York court will and will not enforce the requirement of a spouse to give a Get.
A.W. v. I.N.: When there is no civil contract, a court may not force a spouse to give a Get
In this case, although the wife promised to let her husband remarry according to their religious customs, she didn’t actually give him the formal Get to make it official. And while they had a fully executed financial stipulation, it didn’t mention anything about the Get.
The husband wanted the court to force the wife to keep her promise and accept the Get. However, the court said it couldn’t do that because it’s a religious matter, not a legal one. Specifically, the court stated, “It would be a violation of the First Amendment of the United States Constitution for the Court to order the Wife to participate in a religious ritual when she did not agree to do so nor may the Court impose a financial penalty against her.” (See the case A.W. v. I.N.). Based on Domestic Relations Law § 253[9]), the court couldn’t investigate whether the wife actually removed the religious barriers (she claimed she did) because it would involve investigating religious issues. The court did not have a contract to rely on here (the financial stipulation in this case said nothing about a Get).
The takeaway? The court here could not force the wife to accept the Get because it explained that there was no civil agreement or secular aspect of the request to rely on. The court could not interfere with this couple’s argument because there was no contract law to apply and enforcing a Get here would be diving into religious matters. However, if the parties had signed a prenuptial agreement whereby the spouses agreed that the Husband would give and the Wife would accept the Get, then there would be a contract to enforce.
Mizrahi-Srour v. Srour: When there is economic misconduct, a NY court may force a spouse to give a Get
In the case of Mizrahi-Srour v. Srour, a NY court ruled that if the husband didn’t give his wife a Get, he would have to pay her more spousal support. This was because the wife would face financial problems due to the divorce, and the court wanted to make sure she was financially supported.
The court’s decision to increase spousal support was not considered to interfere with religion because the decision was based on the wife’s negative economic consequences, not on religious reasons. The court also mentioned the husband engaged in “economic misconduct” which led the court to award the wife more of the marital estate (70%).
The takeaway here is that the court was able to force the husband to give a Get not for religious reasons, but for economic reasons. Without the Get, the wife would have suffered financial consequences, with the Get, she would have a better financial outcome.
Masri v. Masri: Without economic concessions and without a contract, a NY court may not enforce a Get
In this 2017 case, a husband refused to give a Get, for religious reasons (the religious reason being that by the wife going to a civil court for divorce, she has waived her right to a Get under a Jewish court of law). The wife asked the New York court to award her more alimony in the divorce because she was facing economic impacts due to not receiving a Get and becoming a “chained woman” in her religious society. In the Jewish religion, she cannot remarry to another man without the Get, so she was requesting more alimony from her husband to make up for this impact.
What did the court say here? The New York court ruled that there was no evidence to show that the husband was refusing to give a Get to force his wife for any wrongful reasons. The cases that came before this have relied on economic concessions or wrongful economic conduct when enforcing a Get.
The court further explained that if they were to pressure the husband to provide the Get by using financial incentives, it would violate the First and Fourteenth Amendments of the United States Constitution. These amendments protect the freedom of religion, and the court stated that forcing someone to perform a religious act against their will would interfere with their right to practice their religion freely.
Can you put a requirement to give a Get in your prenup in New York?
The answer to this question is complex because there is no case law addressing this exact situation where a Get was in a prenup and a couple is arguing over its enforceability in front of a NY court. However, we can take context clues from other cases such as in the case where the parties contracted for a Get in their divorce settlement agreement and it was enforceable.
- The Get clause in question must be written down in a civil contract, such as a prenuptial agreement. Without a secular contract, the court has nothing to apply contractual law to and would be forced to delve into religious matters, which it will not do except under very specific circumstances. (See A.W. v. I.N.)
- The refusal to give the Get may be required to cause economic hardship on the person seeking the Get. (See Mizrahi-Srour v. Srour; Masri v. Masri)
Thus, a possible solution to allowing for religious and financial freedom in the event of a divorce in the Jewish community may be to include a written requirement in a prenuptial agreement that both parties shall provide a Get if the request by the other spouse is made.
Can you enforce a Ketubah in New York?
The short answer is likely no. While it may be possible to have certain secular aspects of a Ketubah enforced, such as an arbitration agreement for a hearing in front of a Beth Din, as occurred in the Avitzur case above, we don’t recommend using a Ketubah as your prenup. Why? Because a court may not interfere with religious matters, and that includes enforcing religious agreements, such as those in a Ketubah. Further, the Ketubah is not signed in the form required to file a deed with the proper acknowledgments so it will constitute a valid prenup in New York. It is a better idea to execute both a Ketubah and a prenuptial agreement in order to have the highest possible chances of enforcement in New York.
Lisa Zeiderman is Managing Partner at Miller Zeiderman LLP, based in New York. A matrimonial attorney, CFL and Certified Divorce Financial Analyst, she regularly handles complex financial and custody divorce matters, as well as pre- and post-nuptial agreements. Named to the Crain’s New York list of Notable Woman Attorneys for 2022, as well as a Crain’s New York Notable Diverse Lawyer for 2022, a Hudson Valley Best Lawyer in 2022, a 2021 Best Family Law Attorney for Client Satisfaction by the American Institute of Family Law Attorneys, among many other awards, Lisa is a founding member of the American Academy of Certified Financial Litigators and a member of the panel for Attorneys for Children. Lisa is also a member of the Forbes Business Council.
In addition to authoring a well-read blog on Psychology Today, “Legal Matters: Understanding Mental Health Issues as They Apply to Divorce and Child Custody,” Ms. Zeiderman is regularly published in Financial Advisor Magazine, the New York Law Journal, and by the Forbes Business Council. She is also interviewed on issues ranging from financial empowerment to tax issues to child custody in a host of media. Ms. Zeiderman, a Fordham University of Law graduate, also serves as the Vice President of the Board of Savvy Ladies, Inc., and on the board of LIFT, Legal Information for Families Today.
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