Uncertified Translation of Ketubah Unenforcible in Illinois Divorce Case
Can Jewish Marriage Contract Ketubah Be Enforced by a U.S. Court?
Certified translation services are essential to enforcement of all foreign language contracts by the U.S. courts, including the enforcement of marital contracts and prenuptial agreements written in a foreign language.
The case In re Marriage of Katsap, 214 NE3d 945 (Ill. App. Ct. 2d Dist. 2022) involved an appeal from an Illinois trial court’s judgment dissolving a marriage between husband and wife. The couple was married in Israel in 2010. Both husband and wife were born in Russia. The couple spoke Russian and Hebrew. Husband and wife had one minor child that was born in 2019 by surrogacy. Due to difficulties having children, the couple had frozen embryos stored at a fertility institute.
Prior to their separation in 2020, the couple lived in upstate New York. The couple had their own business related to security system installation. Once the pandemic hit, the business slowed down significantly. During the pandemic, the husband moved out of the couple’s home. Following this, the wife also left the couple’s home for Illinois with her parents and the child, but without letting the husband know where they went. The wife then moved a second time within Illinois and placed the child in a full-time Russian-speaking day care. The husband later discovered where wife had gone and filed for an order in New York for return of the child. The wife then filed for an order of protection in Illinois state court. At that time, the New York court relinquished jurisdiction. The wife then filed a petition to dissolve the marriage in Illinois.
Pre-Trial Rulings and Proceedings
A judge took charge of the case in late 2020. He issued temporary orders, including granting child support to the wife, denying interim attorney fees, restricting travel outside Illinois with the child, granting parenting time to the husband, and arranging for the child to attend part-time daycare. The wife filed an emergency motion to have the judge substituted. However, the motion was denied by the court for untimeliness and because the judge had ruled on substantive issues.
The husband filed an emergency motion seeking decision-making responsibilities for the child. The husband alleged that the wife had unilaterally enrolled the child in daycare and was concerned that the child would not learn English at the Russian-speaking daycare. He also objected to the child being in daycare as the wife did not work and could care for the child.
The guardian ad litem assigned to the case testified that the Russian-speaking day care would not provide information to her or the husband about the child. Additionally, the wife would not provide the necessary authorizations so that husband or the guardian could get information. Finally, there were concerns about the Russian daycare’s adherence to COVID guidelines such as the wearing of face masks as well as the fact that the child was in day care full time. The guardian suggested that the child be placed in another part-time day care, and the trial court agreed.
Uncertified Hebrew to English Translation of Ketubah
Next the wife filed a motion for a declaratory judgment to enforce an alleged religious marriage contract called a “ketubah.” The wife described the “ketubah” as an essential part of Orthodox Jewish marriages in Israel. With her motion, the wife submitted an affidavit stating that her husband had signed the ketubah and was willing to be bound by it; a foreign language document that was either in Aramaic or Hebrew (the “ketubah”); and an uncertified Hebrew to English translation of the ketubah. The English translation allegedly stated that, in the event of divorce, the husband agreed on behalf of himself and his heirs to pay the wife $1 million out of all of the property that he owned or would acquire in the future. It also stated that the husband agreed not to persuade the wife to “waive” any of the terms of the ketubah. According to the Hebrew to English translation, the husband also allegedly agreed not to remarry and not to leave Israel until he provided the wife with child support in an amount to be determined by a rabbinical court.
The husband responded by filing for judgment on the pleadings. He argued that the ketubah was not enforceable as a prenuptial agreement under Illinois law and that it contained terms that were against public policy such as prohibiting remarriage.
After a hearing on the motion for a declaratory judgment, the court found the ketubah to be unenforceable because it usurped the court’s authority to set child support and to divide marital property. The court also found certain terms to be unconscionable, including restricting the husband’s right to remarry and his right to leave Israel. The court opined that the ketubah was a type of wedding vow and, thus, a “religious issue.”
Additionally, the wife filed a notice of intent to claim dissipation of marital assets. She alleged that the husband took money from a marital account; that he devalued the business; that he liquidated the lease on one of their vehicles, and used marital funds to pay child support to a former wife.
The husband moved to restrain the wife from using the frozen embryos or a declaration that the husband had no obligation to support any children born of the frozen embryos. The trial court held it would hear the motion during the trial.
Trial Court Hears Witnesses and Issues Judgment of Dissolution of Marriage
During trial, the husband, the guardian, the child’s maternal grandparents, the wife as well as a clinical therapist testified before the court. The grandparents testified in Russian through a Russian court interpreter.
Following the trial, the trial court issued its written decision or Judgment of Dissolution of Marriage. It found that the wife lacked honesty and disregarded the importance of the father-son relationship by relocating from New York to Illinois without informing the husband, allegedly to create difficulties in his relationship with their son. Due to concerns about the wife being a flight risk, the court imposed permanent restraints on her movement, possession of the child’s passport, and contact with certain institutions.
The trial court also determined that the husband did not abuse the child even though the wife was telling care providers that he had done so. The trial court also found that the decline in husband’s business was due to the pandemic and was not the husband’s fault. Regarding the frozen embryos, the trial court rejected an alleged contract favoring the wife and granted husband exclusive control of the embryos. The wife was awarded the majority of parenting time and the child was to continue attending daycare at the part-time English-speaking facility.
The trial court decided to lower the husband’s child support payment from the standard amount of $636 to $100 per month due to the expenses associated with visiting his child in Illinois. It determined that the marital estate had little value and divided assets that including furniture, financial accounts, and debts, between the parties. The husband was awarded the business with the wife directed to transfer her interest to him. The trial court noted that the husband had operated the business as if he was the sole owner and attributed its value solely to his personal goodwill. The husband received the couple’s car and $8,163 in cash. Both parties were found to have spent marital assets on attorney fees, resulting in an equalization of fees, with the wife owing the husband $35,459. However, the wife was ordered to pay the husband $30,000 to balance attorney fees, prompting her appeal.
Wife Appeals Lower Court Rulings
The wife appealed various rulings issued by the lower court. Among those was the order denying substitution of the judge. The appeals court held that because the lower court judge’s temporary rulings were substantial, e.g., regarding financial matters, temporary child support, the lower court was correct in not allowing substitution of the judge.
Control Over the Frozen Embryos
After considering the relevant factors, the appeals court decided to award the frozen embryos to the wife and not the husband. The appeals court reasoned that the evidence indicated that the frozen embryos were the wife’s only chance for having another biological child. This interest outweighed the husband’s desire to donate the embryos elsewhere. Also, the husband’s suggestion of donating the embryos (but not to the wife) worked against him. The husband’s concern of having to support children born of the frozen embryos could also be resolved through an agreement between husband and wife. Therefore, according to the appeals court, giving control of the embryos to the wife represented the appropriate resolution given the parties’ circumstances.
Order Placing Child in Part-Time English-Speaking Daycare
The appeals court upheld the ruling to place the child in the part-time English-speaking daycare. The appeals court concluded that it was best for the child to be cared for at home by the wife and her parents. However, recognizing the wife’s need to find a job, the appeals court decided that part-time daycare was suitable if full-time care at home wasn’t feasible. Additionally, the lower court’s choice of the English-speaking daycare aligned with the guardian’s recommendation and was deemed reasonable based on the evidence.
The Restraining Order, Property Award & Dissipation of Assets
The appeals court found that the wife waived arguments related to the restraining order, the property award and her arguments regarding dissipation of assets because she failed to provide legal authority for her arguments. According to Illinois Supreme Court Rules, arguments must be accompanied by citations to relevant authorities. The appellate court ruled it would not conduct research on her behalf.
Child Support
The appeals court remanded the case to the trial court for recalculation of the child support. It ruled that the lower court had focused solely on the husband’s resources and needs when deviating from the child support guidelines thereby neglecting to consider the child’s financial, physical, emotional, and educational needs.
Enforceability of the Ketubah
The wife sought to enforce the “property division” allegedly described within the ketubah, which she interpreted as obligating the husband and his heirs to pay her $1 million from any present or future property. However, the husband argued that the ketubah could not be enforced due to various reasons, including the lack of a certified Hebrew to English translation, its unconscionable terms, and its failure to meet the criteria for a valid prenuptial agreement.
The trial court had found the ketubah to be unenforceable as a contract, but acknowledged its nature as a marriage vow. The husband asserted that the absence of a certified Hebrew to English translation renders the ketubah unenforceable, a position supported by Illinois law.
The appellate court held that even if the English translation were deemed adequate, the ketubah’s terms were still unconscionable, especially considering the small value of the marital estate.
The wife’s reliance on precedent where specific performance of a ketubah was granted was deemed irrelevant by the appeals court, as the circumstances differed significantly. Instead of seeking to enforce terms in accordance with Jewish law, the wife was seeking to enforce a financial promise that the appeals court agreed was unconscionable. Despite being given the opportunity, the wife’s attorney also could not explain how the ketubah’s terms could be enforced, which further solidified its unconscionability.
Contact legal translation and international probate research service All Language Alliance, Inc. to obtain certified English translation of ketubas and other Hebrew legal documents to be used in U.S. courts and to hire a Hebrew deposition interpreter for a Zoom deposition or for an on-site deposition.
#alllanguagealliance #legaltranslation #legaltranslationservices #certifiedtranslation #certifiedtranslationservices #contracttranslation #marriagecontracttranslation #ketubah #unconscionability #unconscionablecontract
Up Next: Mandarin Deposition Interpreters for On-Site Chinese Depositions in the U.S.