Prenuptial agreements based on religious traditions pose unique First Amendment challenges for secular American courts. Ann Laquer Estin, writing for the American Bar Association in 2019, explained that when religious marital contracts, such as a Jewish ketubah or a Muslim niikah “satisfy the secular rules governing martial agreements, courts give them legal effect, but many cases reflect the wide gap between the requirements of religious and civil law.” For example, Estin noted that in some states, a court will give a “second look” to religious marital contracts “to determine its fairness at the time of divorce, particularly with respect to any waiver of support rights.”

Judge Declines to Enforce Jewish Law Prenuptial Agreement

The Supreme Court of Connecticut recently considered this subject in a divorce case, Tilsen v. Benson, arising from the disputed interpretation of a Jewishketubah. The husband and wife in this case met in Israel but married in a religious ceremony held in Pennsylvania in 1989. Just before the ceremony, the parties signed a ketubah. The husband subsequently worked as a rabbi for a conservative Jewish synagogue in Connecticut. The wife worked for many years as an attorney and nonprofit executive while also supporting her husband’s religious work.

The husband filed for divorce in Connecticut in 2018. He sought enforcement of the ketubah and asked the court to divide property and award financial support according to Jewish law. The wife objected.

Both sides submitted expert affidavits from rabbis that supported their interpretation of Jewish law as applied to this case. Not surprisingly, the rabbis offered conflicting views. As a result, the trial court decide which interpretation of religious law was correct and instead declined to enforce the ketubah. The court then conducted a standard divorce trial under Connecticut law. The final divorce order required the ex-husband to pay $5,000 per month in alimony to the ex-wife for 15 years. The husband appealed.

The key question before the Connecticut Supreme Court was whether enforcement of the parties' ketubah violated the First Amendment’s Establishment Clause. Under the First Amendment, the government cannot make or enforce any law “respecting an establishment of religion.” In broad terms, this means that Congress cannot establish a national religion or church. Nor can any arm of the government unduly favor one religion over another.

The husband argued the ketubah did not implicate the Establishment Clause at all. Rather, he said the parties had simply signed a contract agreeing to resolve any potential divorce under Jewish law. Such “choice of law” provisions are common in secular contracts. For example, a business contract might specify any litigation must be heard under New York law.

But the United States Supreme Court has long held that secular civil courts cannot become embroiled in disputes over religious doctrine. In a 1979 decision, Jones v. Wolf, the Court explained that state courts can apply what is known as a “neutral principles of law” approach to resolve these kind of disputed. The Jones case involved the disputed ownership of property belonging to a church whose members had split into two competing factions. The federal Supreme Court upheld the Georgia Supreme Court’s decision to apply neutral principles of law, which allowed the trial court to “examine certain religious documents” in purely secular terms to resolve the underlying secular legal dispute. But the trial court could not “rely on religious precepts” or attempt to “resolve a religious controversy” between the parties.

The Connecticut Supreme Court adopted this approach in resolving the Tilsen case. And in doing so, the Connecticut justices unanimously agreed that the Establishment Clause prevented a civil court for enforcing a ketubah with provisions similar to the one in this case. Essentially, enforcing the ketubah would require a civil court to act as a Jewish religious court in resolving certain ambiguities in the agreement. Notably, the parties' ketubah was silent on how to determine any award of spousal support in the event of a divorce. Deciding this issue under the ketubah would therefore have required the trial court to “determine those obligations from external sources as to Jewish law, namely, the parties' expert witnesses, whose proffered opinions differed in this case, instantly alerting the court as to the establishment clause dilemma.”

In the alternative, the ex-husband argued that refusing to enforce the ketubah violated his First Amendment right to enjoy the “free exercise” of his religion. But that argument worked both ways, the Connecticut Supreme Court noted. After all, enforcing the ketubah would arguably violate the ex-wife’s free exercise rights. And once again, for the courts to take a side on that issue would again create an Establishment Clause problem. More to the point, the court’s refusal to enforce the ketubah did not punish the ex-husband for his sincerely held religious beliefs.

Contact a Family Law Attorney Today

Even when religion is not at issue, the enforcement of prenuptial and post-nuptial agreements are often a hotly contested matter in divorce cases. If you are involved in a current or pending divorce, it is therefore best to work with an experienced family law attorney in your area who can advise you of your rights and responsibilities.

Disclaimer: This post is provided for informational purposes only. The author is not an attorney and nothing in this post should be construed as legal advice. You should always consult a licensed and qualified attorney in your state about any legal matter.