A friend of mine called me the other day sounding very distressed. His 29-year old son is engaged to his non-Jewish girlfriend of several years. The couple had broken up a year ago because she would not convert to Judaism. He loves her dearly and felt like he did not want to live without her when they were not together for the year. Her parents tried to fix her up with a young man of her own religion during the year they were apart. This didn’t work simply because she loves my friend’s Jewish son. So, now the couple is back together and the dad (my friend) and son are trying to have the young lady sign a written agreement to raise any children of the marriage as Jews. She apparently verbally promised to do this. They asked me to consider drafting such a civil agreement.
This sounds like a practical solution to the problem, but unfortunately it is not a great resolution. This written agreement would not be enforceable during marriage and it may not be enforceable in the event of a divorce either, depending on the language, the judge and the jurisdiction.
If you’re married and your spouse does not want to follow the terms of your initial agreement about how to handle the children after they are birth, what are you going to do about it? There is no civil forum (court) which would enforce this marital problem. You can’t sue your husband or wife on this contract while married. The civil courts wouldn’t rule on a premarital contract regarding religion without a termination of marriage proceeding, i.e. divorce or separation. So, if your spouse changes his or her mind after the birth of the child, which happens, you have a problem on your hands. Do you work out the religion issue yourselves in the marriage or get divorced and have some strange judge do it for you?
Some courts in New York have upheld these “agreements” to raise children with a specific religion to a certain extent, again, only in a termination of marriage proceeding. The results vary as well depending on the situation and the judge. Sometimes a judge wants to acknowledge the agreement and enforce it or a part of it, no matter who has primary custody. In other situations, the courts first look at custody and then consider whether the agreement is viable. For example, if mom, a non-Jew, promised to raise the children Jewish during the marriage, and she gets custody in a divorce proceeding, she may not want to continue the Judaism after the divorce. Will the civil court force her to follow Jewish tradition? Each case is fact sensitive.
In the State of New Jersey, a civil premarital agreement should not address any custody, parenting, and support issues for future children. Obviously this includes religion. If the parties divorce, the courts will always look at the best interest of the children first in terms of custody and parenting, using the state law guidelines, which are secular. Religion is generally determined by the parent of primary residence. Obviously the issue often leads to bitter custody disputes with regard to religious upbringing.
Family Court judges have wide discretion in all jurisdictions in New Jersey and New York, so the issue of religion for a child or children, even if there is an agreement, can result in any number of arrangements if you leave it up to a judge in a divorce proceeding.
My personal opinion, after practicing family law for over 20 years, is as follows:
If your religion (Judaism) is really important to you and a large part of your life, it is not a great idea to get involved with someone of another faith unless the other person is clear at the very beginning that he/she will convert and has no tremendous pride in or love for his/her own religion. When people have children, they often revert to and have a renewed sense of pride in the religion they grew up with. They often want to give their children the guidelines, traditions, and values that they grew up with themselves. The promise before marriage to raise them with specific religious beliefs might feel very different and wrong after children are born. Obviously this does not apply to everyone. You have the right to be able to trust your future spouse’s representations, but things happen. It is something to think about.
Also, obviously when people have long-term relationships with other people, they become attached. It’s hard to break up over religion if there is love. Again, this is one of those practical things that should be discussed and resolved before the relationship deepens, if it’s possible. Of course, this is often easier said than done.
In my friend’s case, the dad is totally opposed to the marriage and is angry with the young lady because she won’t convert. Her parents unfortunately feel the same way about the young man. It’s like Romeo and Juliet. It is sad to begin a life together without the support of the respective families, but it happens. The young couple are happy and healthy together now. They both, as I understand it, are hard workers and seem to enjoy each other’s company. If they do marry, I hope that they can find the strength in their relationship to come to a satisfactory resolution themselves to this very difficult and emotional problem. If they do, I also hope that their parents can soften their positions and provide support to the couple. In this country with a 50% divorce rate, a happy, healthy couple is a wonderful blessing.
Tanya N. Helfand has been practicing family law for over 20 years. She litigates, mediates, and provides collaborative matrimonial services. She also drafts various nuptial and related agreements for parties. If you have any interesting questions or topics to discuss in The Algemeiner relating to Judaism and family issues, please email email@example.com. We of course will keep your identity issues private. If you have any comments as to the above, please feel free to submit them as well.