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Becher v. Becher
New York Supreme Court, Appellate Division -- Second Department


Defendant-Appellant Yehuda Becher ("Defendant-Appellant") has challenged as unconstitutional the provisions of New York's Equitable Distribution Law, D.R.L. '' 236(B)(5)(h) and (6)(d), that allow a court presiding over a couple's divorce to consider, when making equitable determinations of distribution and maintenance, whether a party has done all that is within its power to release its spouse from all the bonds of marriage. Defendant-Appellant also indirectly has challenged as unconstitutional D.R.L. ' 253, which requires a person suing for a divorce to submit, before a final judgement of divorce is entered, a sworn affidavit stating that it has removed all barriers to re-marriage for its spouse. The IPA believes that Defendant-Appellant's first claim is without merit and that Defendant-Appellant's second claim should not be considered.

First, D.R.L. '' 236(B)(5)(h) and (6)(d) are an entirely appropriate exercise of a court's equitable power. Although the power of a court to do equity is not unbounded by constitutional limitations, it is based upon a principle of balancing ethical and hardship considerations, of which the most striking characteristic is a high degree of discretion. The scope of a court's equitable power in the context of a divorce action certainly encompasses the ability to consider whether a party's capacity to provide for itself economically has been impaired. In addition, it clearly is within the power of the legislature to require that those who seek the benefits of the state's domestic relations law, and in particular, the privileges associated with its marriage dissolution law, certify that they come to the court with "clean hands"; that is, that their behavior is in conformity with the precise relief that they have requested from the state. When a party to a divorce proceeding requests that the state declare the party to be divorced, the state is entitled to require that the party has in fact taken all steps necessary to ensure that they will be divorced in every respect.

Second, the trial court correctly refused to rule on Defendant-Appellant's indirect challenge to D.R.L. ' 253, holding that the challenge was not properly before the court. D.R.L. ' 253 imposes a certification requirement only on a plaintiff in a divorce action. As the trial court noted, Defendant-Appellant had "never once . . . set forth a claim that he desires to interpose a case of action for divorce." R-9. Although language used in D.R.L. '' 236(B)(5)(h) and (6)(d) is defined in the first instance in ' 253, this fact alone is not sufficient to place the constitutionality of D.R.L. ' 253 at issue. A court should avoid deciding a constitutional question unless resolution of that question is necessary to the outcome of the case. See Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988)("a fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them"); Jean v. Nelson, 472 U.S. 846, 854 (1985)("[i]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable").

Finally, this case is not about the validity of a get (Jewish bill of divorce) or the effect of D.R.L. '' 236(B)(5)(h) and (6)(d) and 253 under Jewish Law. The IPA recognizes that there are wide-spread differences of opinion among rabbinic authorities as to the impact D.R.L. ' 236(B)(5)(h) and (6)(d) have on the effectiveness of a Jewish divorce. The IPA takes no position on whether D.R.L. ' 236(B)(5)(h) and (6)(d) achieve the objectives of the legislature in passing D.R.L. '' 236(B)(5)(h) and (6)(d), or whether a get given in compliance with the statute is a valid get under Jewish Law. The IPA believes that these issues are not properly before this Court, but rather are for the legislature and rabbinic authorities respectively to decide. Resolution of the constitutional issues in this case does not require inquiry into matters of Jewish Law and the statutes in question are constitutional regardless of the state of Jewish Law on the subject.

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