In Tilsen v. Benson, (CT Sup. Ct., Sept. 5, 2023), the Connecticut Supreme Court upheld a trial court's refusal to enforce the provisions of the parties' ketubah (Jewish marriage document) in setting alimony in a marital dissolution action. The husband, a rabbi, sought enforcement of the ketubah as a prenuptial agreement. The ketubah provided that any divorce would be "according to Torah law." Husband contended that meant a 50/50 division of property and no obligation to pay alimony, but conflicting interpretations of Jewish law were presented to the trial court. The Supreme Court said in part:
... [W]e conclude that the plaintiff’s desired relief violates the establishment clause under the neutral principles of law doctrine. Most significant, the parties’ ketubah is facially silent as to each spouse’s support obligations in the event of dissolution of the marriage, thus leaving the 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....
The court also rejected husband's argument that refusal to enforce the ketubah violated his free exercise rights by preventing him from divorcing according to Jewish law and denying him the generally available benefit of enforcing a prenuptial agreement only because of the agreement's religious nature. The court said in part:
... [E]nforcement of this vaguely worded ketubah in the guise of protecting the plaintiff’s free exercise rights would have put the trial court on the horns of an establishment clause dilemma.
Second, the trial court did not deny the plaintiff access to the court or otherwise exact some kind of penalty in connection with his religious beliefs or practices; its decision simply meant that this dissolution action would be governed by generally applicable principles of Connecticut law as expressed in our alimony and equitable distribution statutes. Parties who desire specific tenets of their religious beliefs to govern the resolution of marital dissolution actions remain free to contract for that relief via a properly executed antenuptial, postnuptial, or separation agreement that is specifically worded to express those beliefs in a way that avoids establishment clause concerns under the neutral principles of law doctrine.
