Judge Tries to Pressure Ex-Husband to Give Ex-Wife an Islamic Divorce; Court of Appeals Reverses

The case is Hammoud v. Hammoud (Mich. Ct. App. Mar. 8, 2012). An excerpt:

Defendant next contends that the award of spousal support was excessive and improperly imposed as a sanction for defendant’s refusal to grant plaintiff an Islamic divorce…. “The object in awarding spousal support is to balance the incomes and needs of the parties so that neither will be impoverished; spousal support is to be based on what is just and reasonable under the circumstances of the case.” The factors traditionally to be considered by a trial court in awarding spousal support include:

(1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity.

… The trial court awarded plaintiff modifiable spousal support in the amount of $602 a month for a minimum of four years, with early termination upon the death or remarriage of plaintiff. The spousal support figure was based on the imputation of annual income of $14,616 to plaintiff. The trial court imposed the continuation of modifiable spousal support, in this amount, for an indefinite period unless terminated by plaintiff’s receipt of an Islamic divorce by defendant, her death or remarriage.

In awarding spousal support, “a judge’s role is to achieve equity, not to ‘punish’ one of the parties.” For the length of this marriage and given the disparity in the parties’ history of earning abilities, use of the spousal support prognosticator by the Friend of the Court indicated an appropriate case for short-term spousal support restricted to a period of “four and a half to five years.” Not only did the trial court exceed the recommended length of spousal support for this marriage, the implication of the trial court’s ruling is that it was indeed attempting to pressure defendant to grant plaintiff an Islamic divorce, despite the trial court’s acknowledgement that it had no authority or jurisdiction over the parties obtaining a religious divorce.

The trial court recognized that plaintiff was an intelligent and capable woman with a potential to earn monies now and into the future. Both the length of this marriage and plaintiff’s potential ability to earn an income contraindicate an award of permanent spousal support. While the award is designated as being modifiable in accordance with MCL 552.28, the implication that the ongoing award of spousal support was for an indefinite duration and was designed by the trial court to force or pressure defendant to agree to an Islamic divorce is improper….

While there is an argument for an award of rehabilitative spousal support in this matter, an award of permanent spousal support could result in defendant’s ongoing obligation to support plaintiff for more years than the marriage lasted. As structured by the trial court, plaintiff has no incentive to become self-sufficient or to vigorously pursue an Islamic divorce as she is assured an ongoing income ad infinitum. The trial court also failed to address or seek further clarification of plaintiff’s contention that she was in possession of a document that would permit others to assist or assure her the attainment of an Islamic divorce without defendant’s consent. Plaintiff indicated that an agreement existed that would permit her brother and brother-in-law to authorize the Islamic divorce, potentially rendering it within plaintiff’s control to prolong her receipt of spousal support.

This is in some respects a similar issue to the Jewish religious divorce (get) controversy, though it sounds like the Islamic rules are somewhat different from the Jewish ones. My view, for the reasons I mentioned as to the Jewish religious divorces, is that the trial court in this case was wrong and the court of appeals was right: Given the Establishment Clause, it should be no business of a secular court to try to pressure someone into performing a religious act.

As I mentioned in the earlier post, I recognize that the religious act (or the absence of the act) has important social effects among members of that religion, and that refusing to give it could be used as a bargaining chip in property settlement or child custody negotiations. But it seems to me that these social effects within the religious community, whether as a result of the performance or nonperformance of religious acts (whether divorce, excommunication, refusal to baptize, or whatever else), or for that matter as a result of practices such as shunning, must be beyond the scope of civil law.