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DO YOU NEED A RELIGIOUS DIVORCE?

Wednesday, July 27th, 2011

by Marion Lee Wasserman

Most of the divorcing couples who come to me for assistance have had a religious marriage ceremony. These couples sometimes have a question along the lines of one posed to me recently by an immigration attorney on behalf of his client: “My client was married in civil proceedings and in a religious Muslim ceremony in the US. He has a civil divorce decree. Does he need another type of divorce decree for the religious marriage?”

Here is the answer: If you have a valid civil divorce judgment, you are legally divorced. The issue on the religious side is a question that goes to religious custom rather than to civil legality. For example, some Jewish clients want to take steps involving a “get” — a formal religious document divorcing the couple under Jewish law. If they want to obtain a “get,” they take the necessary steps on their own, through their synagogue, though they may include language in their Separation Agreement agreeing to do so.

In the Muslim religion, as in any religion, there may be a proceeding or document that gives religious recognition to the divorce. For a Muslim couple wondering what steps to take for a religious divorce, the question should be addressed to an imam rather than a civil attorney. There is no necessity for a “religious divorce” from the legal perspective. But an observant Muslim may want to look into the issue and satisfy any religious requirements.

A separate question is whether a civil divorce judgment obtained in the United States will be recognized in a court in a Muslim country, or whether a divorce judgment obtained in a court in a Muslim country will be recognized in a court in the United States. Depending on the extent of the differences between standards applied by the respective jurisdictions, the courts of one nation might refuse to give recognition (“comity”) to the judgment of the foreign court.

The above article is provided for general informational purposes. It is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

MARION LEE WASSERMAN PRESENTED A WORKSHOP FOR PROFESSIONALS ON THE DRAFTING OF SEPARATION AGREEMENTS

Tuesday, November 16th, 2010

Ms. Wasserman presented a workshop on November 19, 2010 at the annual Institute of the Massachusetts Council on Family Mediation. The workshop, designed for divorce mediators and lawyers, explored what works and what doesn’t work in written Separation Agreements. These are the all-important settlement agreements that divorcing couples present to the Probate and Family Court after completing the mediation process or working collaboratively with attorneys. As a divorce attorney and mediator and a professional writer, Ms. Wasserman takes a special interest in the drafting of clear, precise Separation Agreements. See also her article, “When Words Go To Court.”

WHEN WORDS GO TO COURT

Tuesday, November 2nd, 2010

by Marion Lee Wasserman

Author’s Note: This article is adapted from materials prepared for the Fall 2010 Family Mediation Institute of the Massachusetts Council on Family Mediation.

When mediators and family lawyers reduce their clients’ understandings to writing, the words they choose may wind up being closely scrutinized in court. This is one of many reasons why their words matter so much. Their words will need to hold up under a judge’s scrutiny at the divorce hearing — and, beyond that, may become critical in court proceedings after the initial hearing.

The following three post-divorce cases illustrate what can happen when words go to court. Each of these cases turns, at least in part, on the language of the parties’ Separation Agreement.

Bell v. Bell, 393 Mass. 20 (1984)
– cohabitation
Foster v. Hurley, 444 Mass. 157 (2005)
– life insurance
Johnson V. Johnson, 2010 Mass. App. Unpub. LEXIS 582 (June 2, 2010)
– property division; QDRO language

Another post-divorce case on point is Fawzi v. Elaskalani, 2010 Mass. App. Unpub. LEXIS 602 (June 4, 2010). The opinion in Fawzi is interesting for its discussion of ambiguity and for its implications regarding so-called “nondisparagement provisions.”

Taken together, these four cases demonstrate that imprecise language is like the proverbial loose cannon. It is difficult to know where the damage will be inflicted. Fawzi and Bell demonstrate, ironically, that imprecise language is not necessarily unenforceable. A court may enforce even an imprecise provision, to the pleasure of one party and the dissatisfaction of the other. Foster and Johnson demonstrate that provisions which are imprecise or in some way incomplete may lead the Court to fill in the blanks in a way that one party finds unfair (Johnson) or may lead the Court to a conclusion that the Court would have preferred to avoid (Foster). The subject matter of the Foster case is life insurance obligations incident to divorce, and the opinion of the Court is in some ways a blueprint for the drafting of life insurance provisions in future Separation Agreements. The Court seems to be saying to all mediators and family lawyers, read this, please, before you sit down to write. When words go to court, they matter!