The following column was published in the Jacksonville Jewish News September issue.
Jews who marry are less likely to divorce than the current Florida average for all divorces, according to the National Center for Health Statistics. Still, divorces are fairly common in both Jewish and interfaith marriages. Although these divorces are largely like any other, some observances of Jewish law, culture and tradition can collide with secular society and its law.
Perhaps the first thing that comes to mind when Jews divorce is a religious divorce, symbolized by a “get” or “gett.” A get is a contract given by a husband to his wife terminating their earlier contract of marriage, or katubah. While a get does not affect a husband’s remarriage, it can impede his wife’s ability to remarry.
As one might expect, obtaining a get has varying significance among the Orthodox, Conservative and Reform movements of Judaism. Nevertheless, since a get holds greater significance for a wife, she undoubtedly would like some assurance that her husband will cooperate in obtaining one – especially because, in some extreme cases, a husband’s lack of cooperation may be used as a form of extortion against her.
So what happens to matters of religious significance like this in Florida dissolution of marriage actions? Can one be ordered to cooperate with obtaining a get? In an interfaith marriage, can one be ordered to raise children in a particular religion? And what about a divorcing spouse being ordered to pay for tuition for a religious school?
In Florida, the First Amendment to the U.S. Constitution and its religious companion provision in the Florida Constitution not only ensure freedom of religion, but also separate “church and state.” This means the government – the judicial branch in this context – cannot compel someone to adhere to a religious practice, but may prohibit a particular religious observance if it is “harmful to the child.” This means courts cannot compel someone to cooperate in obtaining a get, much less enforce agreements to raise a child in a particular religion.
However, courts do have the authority to determine legal issues, such as timesharing plans for children and payment of certain expenses as an incident of child support. For example, a court may order timesharing consistent with religious observances such as for Rosh Hashanah, Yom Kippur and Pesach. If the parties enrolled their child in a religious school for secular and non-secular education, the court could order continued enrollment in that school and payment of its costs.
In divorce, religious freedom can be a proverbial “double-edged sword.” On the one hand, we are guaranteed the right to practice the religion of our choice, a compelling reason many of our ancestors immigrated to this country. That same religious freedom, however, is the reason why our courts are prohibited from issuing orders endorsing the observance of a specific religion. If religious observance is important to someone who is divorcing, he or she should ask an attorney about what can be accomplished with an agreement and what a court can and cannot order.