Tilsen v. Benson, ___ Conn. ___ (2023) (ketubah & prenuptial agreement; U.S. Const. 1st Amendment)
Officially released September 5, 2023
In Short: (1) A prenuptial agreement that directs the court to enter financial orders based on religious doctrine, rather than expressing the intended financial orders itself, will not be enforced for violation of the establishment clause of the First Amendment. (Those seeking to compel a “get”* based on a ketubah may be out of luck in future in Connecticut and would be better served by a secular prenup.) (2) The trial court was well within its discretion to find an earning capacity based on fifty-nine-year-old Husband’s last contract where he caused its early termination and sought no further employment.
The parties were married in 1989 in Pennsylvania, though they resided in Israel at the time. The wedding ceremony was conducted in accordance with Jewish tradition, including the signing of a traditional Jewish marriage contract written in Hebrew and Aramaic known as a ketubah. This ketubah provided that the parties agreed to “divorce … according to Torah law as is the manner of Jewish people….” The ketubah itself was devoid of financial specifics in the event of divorce.
The parties then moved to the United States for Husband’s career opportunities as a conservative rabbi. Husband served as the rabbi of a synagogue in New Haven for twenty-eight years, until his employment contract was not renewed during the pendency of the divorce. Husband renegotiated a 10-year contract which would have run through 2025 (ordinarily subject to financial adjustment for the remaining five years) in exchange for a new 1-year contract, which was then not renewed because of disagreements between Husband and the Synagogue over issues arising from Covid-19. Husband had not thereafter searched for new employment and did not intend to seek further employment, despite being only fifty-nine years old.
Wife had worked as an attorney, a paralegal and a non-profit executive, but had not worked since 2015 despite significant efforts to find employment. She was sixty-one at time of divorce. She had been the primary caregiver to the parties’ four adult children and supported Husband’s career by hosting dinners, social events and certain services for the synagogue.
Husband brought the divorce action in 2018, seeking, inter alia, enforcement of the parties’ ketubah as a premarital agreement, which he asserted would equalize most marital property and prohibit alimony. Wife filed an objection to such enforcement. The parties submitted conflicting affidavits from rabbis about the application of Torah law to alimony and property division.
Judge Klau held a hearing and denied the motion to enforce the ketubah, effectively bifurcating the prenuptial portion of the proceedings. The trial court determined that enforcement of the ketubah would require it to choose between competing religious interpretations of Torah law which is precluded under the First Amendment and denied Husband’s motion on that basis.
The case was then tried before Judge Goodrow over multiple days subject with substantial delay due to Covid-19. The trial court found that both parties were unemployed at time of trial, that Husband’s gross annual earning capacity was $202k consistent with his final compensation from the synagogue, and that Wife’s gross weekly earning capacity was $480 based on full-time employment at $12/hour. The trial court found that Husband’s conduct demonstrated an effort to reduce his financial liability to Wife in the divorce. The trial court ordered, in relevant part, Husband to pay alimony of $5,000/month for fifteen years and provided Wife a safe harbor of $50,000. The trial court ordered Husband to pay 25% of the net distributions, including from sale, from a real estate interests established by his father and uncle.
Husband appealed arguing that the trial court (1) improperly denied his motion to enforce the ketubah, and (2) abused its discretion in fashioning financial orders. The appeal was transferred directly to the Connecticut Supreme Court.
As to Husband’s first claim on appeal, he argued that enforcement would (A) not violate the establishment clause of the First Amendment because it simply required enforcement of a choice of law provision, and (B) failure to enforce would violate his rights under the free exercise clause of the First Amendment. The Supreme Court applied plenary review.
Husband argued that Jewish law governing marriage is secular in nature, and thus interpretation thereof was merely a choice of law provision, noting that a prior superior court decision imposed a monetary provision of a ketubah until the Wife was granted a get. In Avitzur v. Avitzur, 58 N.Y.2d 108, cert. denied, 464 U.S. 817 (1983), the high court in New York had similarly required a Husband to appear before a religious tribunal to permit a get pursuant to a ketubah, finding that the enforcement was simply to perform a secular obligation to which he had contractually bound himself.
Our Supreme Court found the dissenting opinion in Avitzur more persuasive, finding it impossible for a court to disentangle secular from religious considerations in adjudicating this dispute. Our Supreme Court explicitly disagreed with a similar decision in an Illinois Appellate decision, In re Marriage of Goldman, 196 Ill. App. 3d 785, appeal denied, 132 Ill. 2d 544 (1990) where the ketubah made no specific reference to dissolution, but the trial court found that the parties intended to govern and the court relied on the testimony of rabbis that the ketubah required a get and that such process was secular as a matter of religious law. Our Supreme Court held that Husband’s desired relief would violate the establishment clause under the neutral principles of law doctrine. Because the ketubah was silent as to each spouse’s financial obligations in the event of a divorce, the trial court would be left to determine the intent from Jewish religious law.
Our Supreme Court reviewed Husband’s unpreserved claim that failure to enforce would violate his rights under the free exercise clause pursuant to Golding review, but found that Husband’s effort failed the third prong of Golding, based on the absence of a Constitutional violation. The free exercise clause prohibits unequal treatment and subjects to strict scrutiny laws that target the religious based on their status. Our Supreme Court found that Husband was still free to contract in any way he saw fit for a prenuptial agreement provided that such agreement was worded in such manner as could pass the neutral principles of law doctrine.
In summary, regarding the religious issue: (1) The ketubah was silent as to the actual financial terms necessary to provide the enforcement Husband sought, and instead directed the court to figure out the financial terms of the prenuptial agreement based on Jewish law, which is not a foreign secular jurisdiction, but a religion. This was prohibited by the Establishment Clause and not salvaged by Husband’s argument about the free exercise of religion. (2) Although this case is not about a get, this opinion casts substantial doubt (if not sounding the death knell) on the ability of a trial court to require any future Husband to permit a get based on a ketubah. Any religiously observant Jewish woman wishing to preserve her right to a get in a future divorce would be well-served to execute a secular prenuptial agreement explicitly requiring participation in a get in the event of a divorce.
As to Husband’s second claim on appeal, and his secular argument, our Supreme Court reviewed under the abuse of discretion and clearly erroneous standards. Husband challenged clearly erroneous factual findings and abuse of discretion as to the alimony and 25% distributions.
The Supreme Court (relatively easily under the facts cited above) found that the trial court properly exercised its discretion in finding earning capacities. There was ample evidence that Husband’s efforts that resulted in termination of his employment were for advantage in the litigation, as were his cessation of efforts to find employment. The president of the synagogue’s board testified that Husband sought the reduction in his contract term and efforts to retain him in his position. Similarly, the findings about Wife’s lower earning capacity were grounded in factual findings regarding her difficulties in her career and efforts to find employment. The trial court was within its rights to not credit various aspects of Husband’s vocational expert’s testimony as to Wife’s earning capacity.
Husband next argued that distributions from his real estate were “mere expectancies” and argued that the trial court failed to attach a present value to those distributions. The parties had stipulated before trial that the interest was not transferable but that the trial court could make a determination about a portion to which Wife was entitled. The Supreme Court found that the distribution order was consistent with the present division method of deferred distribution and the parties had agreed that the interest was marital property.
Finally, Husband argued that the alimony award was unduly punitive, failed to consider his lack of income and employability given his age, did not adequately explain or justify the fifteen-year duration, and erroneously was based on gross earning capacity rather than net income. The Supreme Court noted that references to gross income by itself does not warrant reversal when there is ample evidence from which the court could have determined net income. While the finding of earning capacity was expressed in gross income, its award supports the presumption that the trial court considered Husband’s net income. The Supreme Court compared the factual findings and award with various other cases and found no abuse of discretion, also noting the modifiability of the award.
The Judgment was affirmed.
*A get is a Jewish religious divorce permitting remarriage under Jewish law