Family Law

"If this court were to sanction the utilization of a 'Get' to circumvent the constitutional requirement that only the Supreme Court can grant a civil divorce, then a party who obtains a 'Get' in New York could register it in a foreign jurisdiction and potentially, later on, rely on the 'Get' to obtain a civil divorce in New York thereby rendering New York State's Constitutional scheme as to a civil divorce ineffectual," Supreme Court Justice Jeffrey S. Sunshine of Brooklyn (See Profile) ruled in Tsirlin v. Tsirlin, 20542/06.

"It would have the practical effect of amending the Domestic Relations Law section 170 to provide a new grounds for divorce," he said.

Justice Sunshine allowed the plaintiff-husband's Brooklyn divorce proceedings to go forward, denying the wife's motion to dismiss on the grounds of comity and judicial estoppel.

Jeremy D. Morley, an expert in international family law who is not involved in the case, called the decision surprising.

"Usually we would grant comity to a foreign divorce decree so long as at least one of the parties was domiciled in the foreign country," said Mr. Morley. "It's most unusual for a domestic court to look at the reasons behind a foreign divorce decree."

"It'll be interesting to see how the decision not to give comity plays out in other situations. How would it apply when you have an administrative divorce from Japan, which is alien to our system, or a divorce from a country that allows divorce for grounds that we find unusual?"

Alla and Alexander Tsirlin married in Jerusalem in September 1995. Less than six months later, Ms. Tsirlin gave birth to a son, Jonathan. Ms. Tsirlin works in a medical office; Mr. Tsirlin is a bus driver.The family moved from Israel to the United States in October 2003, though Mr. Tsirlin soon returned to Israel a month later due to passport problems.

In December 2003, the couple appeared before a Brooklyn rabbinate, which issued a "get," or religious divorce, according to Mr. Tsirlin.

Two years later, Israel's Rabbinical Court, Jerusalem District, issued a divorce judgment based on the 2003 Brooklyn decree.

In July 2006, Mr. Tsirlin initiated the present divorce action, in which he also sought joint custody and child support.Ms. Tsirlin contested the action on comity and judicial estoppel grounds, citing the Israeli divorce decree.

In a decision last week, Justice Sunshine rejected Ms. Tsirlin's motion. He found that allowing a U.S.-based get to serve as the basis of a valid divorce would provide an end-run around the state's divorce laws.

Justice Sunshine relied on the 1924 Appellate Division, First Department, decision Chertok v. Chertok, 208 App.Div. 161, in which the court found that a get acquired in New York and "consummated" in Russia was not binding in the United States."[A]pplying the holding of Chertok to the facts of this case, although the Israeli government may recognize the divorce granted in New York City, it is void in its inception under our law," Justice Sunshine held.

By Mark Fass
New York Law Journal, May 19, 2008

Full post as published by International Family Law on May 19, 2008 (boomark / email).