Elizabeth J. McInturff: Religious coercion and enforcement of an agreement

Elizabeth J. McInturff

Many couples seek our guidance on prenuptial, postnuptial and separation agreements. As with any other contract, Maryland courts generally will enforce these agreements applying traditional contractual applications, whether the complaining party struck a good deal or not.

These agreements may be deemed void or voidable, however, or even rescinded if the complaining party can prove that the agreement was the result of fraud, duress, coercion, mistake, undue influence or lack of capacity.

Anecdotally, many parties point to duress as the reason why an agreement should not stand.

In terms of seeking to void an agreement, duress is described as a wrongful act that deprives the other party of their ability to exercise their free will. The wrongful act(s) does not have to be unlawful, but rather it must have the effect of causing the aggrieved party of committing an act that they would not otherwise commit.

The Maryland Court of Special Appeals (now the Maryland Appellate Court) in Blum v. Blum ruled that a marital agreement is voidable if it was premised on duress where the dominant party used coercion to the extent that the aggrieved lost the ability to think independently and thereafter entered into the agreement.

Eckstein v. Eckstein is another example. The Court of Special Appeals found that the husband’s actions, including refusing to let the wife, who had a history of mental health problems, visit their children or obtain her property without first signing an agreement prepared by his lawyer that granted the husband custody and extremely favorable property rights, constituted duress.

Another form of duress is religious coercion/duress. This may involve one party withholding a religious divorce. The party withholding the religious divorce holds the “power” and can use the carrot or stick of the religious divorce in order to obtain for themselves significantly better custodial and property rights, forcing the other party into a separation agreement with unfavorable terms for them.

As an example, a New York trial court set aside a separation agreement on the grounds of duress, finding that the wife only entered into the agreement because the husband was otherwise refusing to permit her a Jewish ecclesiastical divorce, known as a “Get.”

Similarly, the Superior Court of New Jersey invalidated a marital agreement that was executed in order to obtain the husband’s consent to a Get because it was a product of duress.

The New Jersey wife testified at trial that her husband refused a Get, thereby preventing her from dating or remarrying, unless she signed over desirable property to him, waived claims of alimony or child support, disclaimed other property rights and paid him $25,000, among other things. The court found that this “extreme pressure” exerted upon the wife constituted duress and invalidated the agreement.

When clients wish to enter into marital settlement agreements that also contain or are premised upon religious obligations and they are concerned about any implications of duress or coercion, they should consider drafting into their agreements an arbitration clause.

An arbitration clause involves the parties appearing before a religious tribunal and submitting to binding arbitration or similar resolution for any disputes arising out of their marriage.

There are pros and cons to seeking relief through an arbitrational tribunal. These tribunals are subject to and must apply the laws of the state. Although there are limited circumstances in which a state court can review an arbitration award, a court can vacate the tribunal’s findings and award.

In fact, the New York court, in the case above, noted that even if the agreement had been the result of a religious arbitration, it still could examine the document for fraud, duress or overreaching.

Elizabeth J. McInturff, Esq., a partner at JDKatz, PC, represents clients throughout Maryland and Washington D.C. in complex family, civil and commercial disputes. For more information, visit www.jdkatz.com.


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