When parents with different religions divorce the choice of religious upbringing of the children can be a major issue. A recent case from the Massachusetts Appeals Court makes agreement on this issue much more difficult.
In the case of Lapat v. Lapat (decided on April 20, 2013), a Jewish husband and a Christian wife settled their divorce by a comprehensive separation agreement. They specifically addressed the religion of the children. They agreed that the children would be raised primarily in the Jewish tradition and prohibited the mother from enrolling the children in any form of Christian education, organizations, or religious instruction. The mother then claimed that this provision violated her constitutional right of Freedom of Religion. The father sought to prohibit the mother from exposing the children to her Christian religious practices and beliefs. Instead of focusing on the language in the agreement that says that the children would be raised primarily in one religion, the Court ruled that the entire clause was unenforceable absent a showing that exposing the children to the mother's religion would cause the children to suffer substantial injury.
The use of the word primarily means that the children should be exposed to both religions. The father having agreed to expose the children to both religions should not be able to limit the exposure after the divorce was final. Instead the Court imposed a standard that seems to prevent the parents from agreeing at the time of a divorce on religious choice for their children. In the decision, the Court rewrote the religious provision of the divorce agreement to require the parents to agree on religious education, events, and practices for each and every choice. This seems to be the worst possible option for the family. Instead of having preset rules that the parties established by agreement, the parties will the opportunity to argue and litigate over every religious choice. While the Court should not give preference to one religion over the other, the Court can enforce a provision where the parents agreed on religious preference. Reducing issues for parents to litigate can only benefit the children in the long run.
It is possible that Courts in the future may treat this case as limited to the unique facts of this case. Until such time as the Courts give further guidance on this issue, I suggest the following:
- When agreeing on religion, parents should agree to specific provisions. They should specify the religion for the children. Significant life events as viewed by the religion of choice should be addressed. Children's participation with parents in religious holidays should be detailed. This should include details for both parents' religions and not just the children's religion. The agreement should describe how the parent with the different religion from the children can practice their reiligion in their home when the children are present.
- The agreement should recite how significant religion is to the welfare and well being of the children. It should also state if the parents agree that training and education in another religion is harmful to the children. If the parents, before divorce, raised the children in only one religion or primarily in one religion then the agreement should recite the history of the children's religion.
- Finally, the agreement should acknowledge that the parties have the right to change their religious beliefs and to change the religious provisions of the separation agreement. However, neither parent has the right to fail to comply with the terms of the agreement without the agreement of the other parent or a modification of the agreement. The separation agreement should also set forth a procedure to modify the religious provisions of the agreement. This modification may be by court order, mediation, arbitration or a parent coordinator. Absent such a modification each parent shall comply with the terms of the agreement. This should recognize freedom of religion but also recognize the need for stability in parenting and the need for joint action rather than the right of one to implement unilateral change.
Parties should draft choice of religion provisions in separation agreements with care. An experienced Massachusetts divorce lawyer should be able to draft provisions with specificity and clarity that may survive appeals.