Religious Considerations in Divorce Cases

DiPietro Law Group, PLLC

In general, marriage and divorce are governed by secular state laws. Although these laws may have had roots in religious practice and customs, divorce in the United States is considered a non-religious, legal matter.

The First Amendment to the United States Constitution prohibits laws that recognize an establishment of religion or prohibit the free exercise of religion for individuals. Accordingly, religious rites regarding marriage and divorce have no bearing on legal marriage and divorce in America.

A religious practice might coincidentally have overlapping requirements with state matrimonial and divorce laws, but for the most part, the legal requirements for marriage and divorce are entirely secular.

Religious Divorces and the Law

The connection between marriage and religion can be seen in how the law of divorce in other countries is articulated. For example, the practice of talaq divorce in some countries that adhere to Islamic law gives a husband the right to immediately divorce his wife by declaring it to her. In some Islamic jurisdictions, talaq divorce is prohibited unless it was associated with extreme cases of marital conflict.

Religious divorces may have certain rites or requirements to effectuate the end of the couple’s marriage. Another example of religious divorce involves certain Jewish divorce practices. In some Jewish legal traditions, a certain document is required that will allow a divorced Jewish wife to remarry in her religion.

Additionally, certain sects of Christianity may have unique customs and rites regarding divorce. For instance, in the Mormon faith—officially known as the Church of Jesus Christ of Latter-Day Saints (LDS)—women married in a Mormon temple are “sealed” with their husbands. Consequently, a Mormon woman may not remarry without a temple sealing cancellation. Mormon men who want to remarry must get a temple sealing approval.

One religious practice that closely mirrors today’s secular principles of divorce is the Roman Catholic practice of getting an annulment. Like its secular counterpart, an annulment in the Roman Catholic faith deems a marriage to have been null and void from the outset because all the criteria to form a marriage were not met.

The issue regarding religious divorces involves when a state recognizes the validity of a religious divorce. In many cases, a state will recognize the validity of a divorce order rendered by a foreign country’s court. However, the extent to which a foreign divorce will be valid depends on state public policy. For example, the Islamic practice of talaq divorce is contrary to Maryland public policy.

Religion and Child Custody

Throughout the United States, issues concerning the custody of a minor child revolve around the child’s best interests. In many states, courts are required to consider certain factors that are relevant to determining what custody arrangement is in the best interest of the minor child.

Religion is closely tied to a person’s individual moral and ethical values. The parent’s moral values may be a significant consideration in determining child custody cases. For example, a Virginia court held that “the moral climate in which children are to be raised is an important consideration for the court in determining custody...”

The U.S. Constitution protects a parent’s right to raise their child according to their own moral values. A court cannot strictly make custody decisions based on the morality of each parent’s religious beliefs.

But, how does a child’s religious believes and preferences come into play, if at all?

The United Nations Convention on the Rights of the Child grants protections for a child’s right to practice their own religion. Although the provisions of the United Nation’s Convention have not been ratified by the United States, consideration for the child’s religion is a custom of international law that may nevertheless have an impact on domestic custody cases involving international families.

A person’s religion can affect more than how they treat other human beings. For example, any religions place restrictions on a person’s diet, where a secular philosophy on morality might not necessarily do so. Although U.S. laws are purposefully secular, the application of such laws to religious individuals should not be dismissive of their individual values.

If religion is an essential consideration in your divorce case, here are some important things to bring up with your attorney:

  • How vital your faith is to you and your spouse
  • Whether you and your spouse have an agreement about religion
  • Your involvement in the religious training of your child
  • The nature and extent of a proposed religious upbringing for your child, independent of the other party
  • What overlapping issues—if any—exist between your religion and applicable divorce law

Contact DiPietro Law Group, PLLC for Legal Questions

The importance of religion in family upbringing cannot be overlooked. If you have questions about how religion may impact your divorce case, you should consult an experienced attorney from DiPietro Law Group, PLLC.

Call us at (888) 530-4374 or contact our office online to schedule an initial case evaluation about your legal concerns today.

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