Mandating Prenuptial Agreements

 

Three Cheers for the IRF on their Mandating Prenuptial Agreements

Guest post by R. Michael J. Broyde

Rabbi Michael Broyde is not a member of the IRF, but is a member of the RCA, a dayan in the Beth Din of America, was the founding rabbi of the Young Israel in Atlanta and is a law professor at Emory. A slightly condensed version of this essay appeared in The Jewish Press.

Recently, the Orthodox community has been rattled by yet another Agunah situation – this time in Philadelphia-Washington – and in all honesty, this is not the first and it will not be the last such case. Furthermore, we all know that genuine halachically viable solutions to the Agunah problem are hard to come by and might not even be within our grasp. But, we also know that Agunah problem can be functionally solved in practice, even if not in theory and the solution is clear and obvious: The Beth Din of America prenuptial agreement which can be found at theprenup.org really does work in almost all of the cases actually presented within the United States. Its structure – payment of money until a get is given – has a proven track record of actually delivering a get time after time and case after case. Everyone knows this. It is the vaccine against the agunah problem. But, like all vaccines, it has to be used before one has the illness – taking your vaccine after the fact never works.

Indeed, all of us who are genuinely interested in actually solving the Agunah problem have been pushing the Beth Din of America prenuptial agreement for years. YU Roshei Yeshiva have signed public letters endorsing it (see here – PDF) which says honestly:

The increase utilization of pre-nuptial agreements is a critical step in purging our community of the distressful problem of the modern-day Aguna and enabling men and women to remarry without restriction. By encouraging proper halakhic behavior in the sanctification and the dissolution of marriage, we will illustrate diracheha darchi noam v’chol netivoteha shalom, all the Torah’s paths are peaceful.

Many other halachic authorities have endorsed this agreement (see here, noting endorsements by Rabbis ZN Goldberg, Y Liebes, zt”l, GD Schwartz, O Weiss, O Yosef and others), and there is virtually no halachic controversy about its permissibility to use. The RCA has twice endorsed its use and encouraged its members to use it (see here) stating:

THEREFORE, BE IT RESOLVED that every member of the Rabbinical Council of America will utilize Pre-Nuptial Agreements, which will aide in our community’s efforts to guarantee that the Get will not be used as a negotiating tool in divorce procedures.

But yet, the truth is that for a variety of reasons — nearly all social or political — the use of the Beth Din of America Prenuptial agreement is still uncommon outside of the Modern Orthodox community, and certainly not used 100% of the time even within it. Many RCA members do not u se it. The next step is obvious also.

We need to agree — as a community — that every Orthodox wedding has to have a prenuptial agreement addressing the giving and receiving of a get. When every marriage is vaccinated against the possibility of the woman or man being an Agunah, Agunah matters will go the way of smallpox – it will functionally disappear as a problem even as we actually have no cure. A well done vaccine is as good as a cure. We all know this – but like many other communal matters within Orthodoxy, we lack the vision and authority and will to impose our solution on our community, even our own rabbinic community.

Not the International Rabbinic Fellowship. Recently, the IRF passed a resolution stating:

As a requirement of membership, IRF Rabbis may only officiate at a wedding where there is an IRF approved halachic prenuptial agreement, and IRF Rabbis are encouraged to participate ritually only in weddings with halachic prenuptial agreements

This is obviously the right approach – rabbinical councils throughout America need to mandate the use of prenuptial agreements by all their members and not tolerate deviation on this matter. Marriages without such agreement produce cases of agunahs – no different than children without vaccinations get polio – and it is to credit of the IRF that they are the first rabbinic organization to mandate the right solution to the problem. It is the IRF – and no other organization at this time – that is mandating what the rabbinical leadership at Yeshiva University is insisting is the critical step in purging our community of the distressful problem of the modern-day Agunah.

Nobody is right about every matter every time, but the IRF deserves three cheers for getting this one very right. I hope that other rabbinic organizations see the light and actually adopt policies with teeth that regulate conduct of their members in this area. We can cry of the problem of the Agunah, or we can work to fix it as individual cases arise, or we can mandate that the problem be vaccinated against so it ceases to plague us. I vote for the latter solution as the best idea now available to us and I think we should mandate that no Orthodox rabbi perform weddings without a BDA prenuptial agreement.

If your rabbi belongs to an organization that does not mandate the use of any prenuptial agreement, ask him why that is the case? If your rabbi does weddings without using a prenuptial agreement, press him to stop doing such weddings, and mandate that no such weddings take place on your synagogue grounds.

Perhaps, later generations will not judge us poorly for our inability to find a halachic solution to the Agunah problem – since we genuinely do not have one that we think works and many of us are looking as hard as we can. But future generations will judge us poorly for lacking the fortitude to mandate the use of a solution that we know works, but only if only we use it.

Congratulations to the IRF for seeing that the best solution available is the one that mandates the vaccine of prenuptial agreements.

 

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125 Responses

  1. IH says:

    What is preventing the RCA from requiring the same of its member Rabbis? Has any RCA member Rabbi used the governance process to get such a resolution to a vote?

  2. IH says:

    Has any RCA member been invited to its Vaad ha’Kavod for officiating at weddings that are not in compliance with the resolution R. Broyde quotes?

  3. HAGTBG says:

    When every marriage is vaccinated against the possibility of the woman or man being an Agunah

    Speaking of which … why does the “standard” RCA prenup not include a penalty on women who do not show up to the BDA (and only on the men)? I understand there is a version of the prenup that does have such a mutual penalty … why is that not the default version?

    The RCA version is to be contrasted with the “Agreement for Mutual Respect: A Prenuptial Agreement for the Prevention of Get-Refusal” on the NCYI website http://www.youngisraelrabbis.org.il/prenup.htm and was translated there by R’ Broyde.

  4. 11235813 says:

    If a woman wants to be foolish and not have one signed, that is her fault. She does no evil to anyone else; unlike vaccination.

  5. MBP says:

    Shouldn’t there be a link to the IRF site somewhere in the post?

  6. chakira says:

    On the prenup website there is the following typo:

    In a footnote to that provision, the Nachalas Shiva cites some authorities who held that the provision dates back to the Takanos Shum, the authoritative communal enactments adopted in the early Middle Ages by the leaders of the German communities of Speyer, Worms and Mayence.

    Mayence should be Mainz

  7. Joseph Kaplan says:

    It’s not a typo. That’s how you spell it. See. e.g., “The Lord is Righteous in All His Ways,” pp. 268-69.

  8. Nachum says:

    Chakira: Mayence *is* Mainz. Welcome to Europe. (My wife was once in Bratislava and was approached by some chassidim looking for the Chatam Sofer’s grave who wanted to know where Pressburg was. True story.)

    The latest Shavuot To Go from YU has a letter similar to the one above signed by many more roshei yeshiva- almost all, I think.

    “I vote for the latter solution as the best idea now available to us”

    I’m sure R’ Broyde means he votes for all three, of course.

    It might be interesting to ask the couple at the center of the case mentioned at the beginning if a prenup ever came up and, if so, why it wasn’t signed. For educational purposes- it might be instructive.

    HAGTBG, interesting. I thought the YI version (which we signed) was just the BDA version adapted for Israel. Is there a reason that clause should exist in Israel and not the US?

  9. Glatt some questions says:

    Does anyone know which YU roshei yeshiva mandate the pre-nup and which would perform a ceremony without one?

    Is there any YU roshei yeshiva who recommends that one not sign, and who would not perform a ceremony if the couple wished to sign a pre-nup?

    I once heard that Rabbi Willig himself (the author of the pre-nup)does not require it, but i could be wrong about this.

  10. joel rich says:

    As a requirement of membership, IRF Rabbis may only officiate at a wedding where there is an IRF approved halachic prenuptial agreement, and IRF Rabbis are encouraged to participate ritually only in weddings with halachic prenuptial agreements
    ======================================

    if it is so important, why not forbid any participation? will the irf have any audits or is this on the honor system? will violation mean immediate expulsion? will there be a parallel mandate concerning acceptable conversions?

    KT

  11. Mike S. says:

    Joel,

    I don’t know, but I imagine they don’t want to drum out a member for saying zimun or sheva brachot at a relative’s wedding just because said relative (or said relative’s rabbi) doesn’t use a prenup. The assumption being that the officiant has more leverage to require a prenup than some guest being honored with a bracha.

  12. Kevin says:

    Does RMB really think that calling for a rally by the masses to pressure the RCA is the way to cause a change?
    Is that a responsible way for a member of an organization to behave?
    Why not try to accomplish this internally?
    After all, the RCA is a democratic place that obeys process.

    Also, I find it ironic that the IRF which is all about personal autonomy for it’s rabbis (hence their anger at the RCA for asking individual rabbis not to perform conversions separate from established Batei Din) is taking that away in this case and now RMB is calling upon the RCA to issue more orders from “on high”.

    Where are all the concerns of rabbinic autonomy now?

  13. Joseph Kaplan says:

    Once again R. Broyde demonstrates why so many in the MO community consider him to be one of our leading lights.

  14. MJ says:

    Just for clarification: as far as I know from a few instances I am familiar with, the prenup “works” by giving the wife a bit of leverage to agree to rescind her claim to the money owed pursuant to the the prenup once the get is given, not in actually securing money for the divorcee. I’m not sure if this was the original intent when it was devised, but perhaps if more people understood the actual mechanism by which it is used there would be more support, because on the surface it appears somewhat weaker in that it does not look to be easily enforceable in secular litigation.

    Also, IIUC it can be entered into as a post-nup, so why not bring one to the next sheva brachot you are invited to (best if you are also a notary) and have the couple sign it on pain of you singing gramen for 20 minutes.

  15. Isaacson says:

    I mean this question with all sincerity; why stop there? Why would we not immediately mandate a conditional get be given right now by all orthodox men. The conditions can be outlined by the various rabbinical bodies and can be made freely available online. I don’t know how many people would actually give it (or how many wives would want it given)but would it not further the same purpose?

  16. Rachel Levmore says:

    Nachum and HAGTBG:

    Indeed, the Agreement for Mutual Respect – Heskem L’Kavod Hadadi – is based on the same halachic mechanism as the BDA agreement, that of high spousal support. It was designed lechatchilah as a reciprocal agreement for a variety of reasons. The central reason being that in Israel there is no civil divorce so it is possible for a man to find himself a victim of get-refusal and although there is a halakhic remedy for a man it can take years to reach a heter meah rabbanim. The Agreement for Mutual Respect, which was authored by a team of two rabbis and a rabbinical court advocate—Rav Elyashiv Knohl, Rav David Ben-Zazzon and myself—can be found in five languages on the website of the Council of Young Israel Rabbis in Israel http://www.youngisraelrabbis.org.il/prenup.htm.

    An additional “international clause” was added in cooperation with the Beth Din of America (Rabbi Broyde and Rabbi Reiss), which turns the agreement into the Binding Arbitration Agreement of the BDA in the case when one or both spouses do not reside in Israel. In today’s mobile society, this was done with the purpose of affording security to the spouses no matter where each would choose to live.

  17. joel rich says:

    R’JK,
    I have tremendous respect for R’MB but in this case imho his passion took him a bridge to far. The mandate route on something that is not halachically required raises the possibility of a lot of other mandates, including things that are halachically required but not always observed.

    I also have to agree with Kevin that the issue of rabbinic autonomy should be given more consideration in the hierarchy of such decisions.

    I also wonder what message the IRF is trying to send when they choose to draw a line in the sand here in contrast to many other hot button issues. Are there any other items that are mandated to be a member of the IRF?

    KT

  18. shachar haamim says:

    Many serious family law practioners in Israel are against standard pre-nup agreements of any kind. Agreements should be tailored to the specific needs of each couple.

    These Aguna pre-nups really only serve to facilitate quick no-fault divorces and the dissolution of the family. I personally know of a couple who were separated for two years and where the husband is a cohen and subsequently reconciled and had another child. Dr. Levemore’s agreement would have taken them straight to the sofer stam at the rabbanut. Two weeks ago Makor Rishon’s womend’s magazine featured an article on three couples who divorced and subsequently remarried. One can only imagine how many more couples like that there are, and how many more couples genuinely reconciled after a separation. Dr. Levmore would have us chuck all of that overboard.

    And let’s be honest – the “aguna” pre-nups don’t really deal with “real” aguna issues. Like where the husband disappears. Or where a spouse is rendered a medical vegetable. Or becomes (halachically) mentally incompetent. Or a childless widow whose only brother-in-law is (halachically) a mumar. and others.

  19. emma says:

    i hear the concerns re: autonomy, but as formulated here so far they seem to ignore that the prenup is “differnt” in that it presents a collective action problem. No one thinks they are going to be get refusers/refused, and most of them are right. People sign it in the hope that it becomes a norm and prevents someone _else_ from having a proble. But as long as it is really optional – in the sense that not “everybody does it,” then the people who really “need” it are the ones who are least likely to sign it. Those are the people who need an external force, such as “this is just something I have to do for my rabbinical organization” to nudge them towards signing, and are not sympathetic to other arguments…

  20. HAGTBG says:

    Rachel Levmore, thank you. As men can also be victim’s of get-refusal in the US (albeit a rarer occurrence), do you know why the US default version promoted by the BDA does not “lchatchila” contain mutual financial penalties in the event of non-compliance with or non-appearance in front of the BDA?

    shachar haamim, you have made valid points that the pre-nup is better if tailor written, that this does not stop all agun-type situations, and that the pre-nup is closer to no-fault then the current default environment. Yet, it seems to me, that the pre-nup is better then the current situation and most couple’s aren’t going to get tailor-made pre-nuptual agreements.

  21. just visiting says:

    “One can only imagine how many more couples like that there are, and how many more couples genuinely reconciled after a separation.”

    Kohanim aside, there’s nothing that prevents a couple from remarrying after a separation if they’ve already divorced. I have two relatives who’ve done so. I don’t see why the small subset of kohanim should change the system for everyone else.

  22. IH says:

    As long as the woman did not marry someone else between as that would be immoral according to those who believe Toevah = immoral.

  23. just visiting says:

    Yes, but in the context we’re talking about of a couple who just needs a little more time to reconcile and is interested in doing so, that would seem to be an unlikely scenario.

  24. Z. says:

    Does anyone know why the RCA’s California prenup is entirely reciprocal but their standard one isn’t?

  25. Shalom Spira says:

    Ye’yasher kochakha, R. Broyde, for raising this important issue, as well as providing valuable Torah insights on the topic. At the same time, with all due reverence, R. J. David Bleich (Be-Netivot ha-Halakhah I, pp. 21-31) respectfully disagrees with the Beth Din of America prenuptial agreement. R. Bleich is concerned that the husband who signs the prenuptial agreement at the time of his wedding celebration does not seriously anticipate that his domestic residence with his wife will cease. [And even if the mesader kiddushin says to the groom at the wedding, "this is a serious document", the Halakhah of asmakhta dictates that the groom does not take it seriously.] Thus, Torah law does not recognize its enforceability, yet there is strong reason to suspect that the secular judiciary [in any constitutional liberal democracy throughout the world] would indeed enforce it, as it is duly notarized. Thus, every husband who has signed such a contract is under potential financial coercion by virtue of the very existence of the secular judiciary that stands ready and able at all times to enforce the contract. Such coercion will disqualify whatever sefer keritut the husband writes.

    In justifying the prenuptial agreement, the Beth Din of America appeals to two halakhic mechanisms which bypass the problem of asmakhta: “beit din chashuv” (-drafting of the contract in the presence of a highly eminent rabbinical court) as well as “kinyan me-akhshav” (-performing an act of acquisition whose mercantile effect occurs immediately). To its credit, the Beth Din of America dutifully implements those two mechanisms into the signing protocol of its prenuptial agreement. Nevertheless, R. Bleich posits that those two mechanisms are insufficient to obligate the groom to pay, for the following reasons: (i) “Beit din chashuv” only operates effectively according to the Rema in Shulchan Arukh Choshen Mishpat 27:15, but not according to the Mechaber in Shulchan Arukh Choshen Mishpat 207:15. Therefore, because a husband has the right to say “kim li” (I prefer to hold) like the Mechaber, he can never be forced to pay a single penny in Beit Din according to Halakhah (since the burden of proof always devolves upon the plaintiff in monetary cases [as per the gemara in Bava Kamma 46b – ha-motzi me-chaveiro alav ha-re’ayah]), whereas the secular courts will presumably force him to pay. Therefore, the husband is under financial coercion and the sefer keritut is disqualified. (ii) “Kinyan me-akhshav”, as described in Shulchan Arukh Choshen Mishpat 207:14, only works for a specific tangible item under discussion, and not for a future debt, as becomes evident from the “Device of the Sages of Spain” subsequently codified by Shulchan Arukh Choshen Mishpat 207:16. Since the Rabbinical Council of America prenuptial agreement refers to an open-ended future debt, “kinyan me-akhshav” does not help. Thus, it remains the case that there is financial coercion over husbands who have signed the Rabbinical Council of America prenuptial agreement.

    Indeed, this point appears to be openly conceded by one of the scholars whom the Beth Din of America invokes as a supporter of the prenuptial agreement. In his letter of approbation featured on the Beth Din of America website devoted to the prenuptial agreement, R. Asher Zelig Weiss admits quite openly that a husband cannot be rightfully made to pay in Beth Din the amount of money specified by the agreement, owing to the principle ha-motzi me-chaveiro alav ha-re’ayah. Essentially, then, R. Weiss is admitting that the prenuptial agreement is disqualified, as R. Bleich believes. Why, then, is R. Weiss featured as a scholar who supports the prenuptial agreement, when he really disqualifies it? The answer is that R. Weiss continues that – even though the prenuptial agreement is disqualified – he is confident that ladies are not prone to actually go to Beth Din to sue their husbands, and therefore the prenuptial agreement poses no problem of generating financial coercion. In other words, the prenuptial agreement is just a ruse; it is a void agreement which no Beth Din could ever enforce, and so the husbands are all being “tricked” into thinking that it works. Since the husbands are merely being tricked into divorcing their wives, this is not considered financial coercion and the resulting gittin are kosher, claims R. Weiss.

    Alas, with all due reverence manifest before R. Weiss, R. Weiss overlooks the fact that – quite apart from the Beth Din – the secular judiciary will enforce the Beth Din of America prenuptial agreement, and therein lies the coercion on the husbands. Hence, any sefer keritut the husband delivers is to be regarded as potentially coerced and hence potentially disqualified.

    However, the Beth Din of America (whose members are all tzaddikim gemurim) has its heart in the right direction, and – with some modification – the prenuptial agreement could be reformulated to meet the standards set by R. Yaakov Kamenetzky in a meeting of the Agudath Israel (where R. Kamenetzky publicly approved a prenuptial agreement that avoids all asmakhta problems). Be-ezrat Ha-Shem, the text of such a prenuptial agreement will be published online before the end of 5772. [There is currently some legal wrangling between R. Bleich and - le-havdil ani ha-katan - myself over one of the details which is currently postponing my online publication, but hopefully the wrangling will soon be resolved.]

  26. Glatt some questions says:

    And let’s be honest – the “aguna” pre-nups don’t really deal with “real” aguna issues. Like where the husband disappears. Or where a spouse is rendered a medical vegetable. Or becomes (halachically) mentally incompetent. Or a childless widow whose only brother-in-law is (halachically) a mumar. and others.
    ——————————————-
    The pre-nup doesn’t deal with the issues you describe. But let’s call these cases “original” aguna issues, not “real” aguna issues. Trust me, there are unfortunately many women whose husbands refuse to give them a get–and their aguna status is very “real” … both to them and to the halachic authorities they turn to for help.

  27. Shlomo says:

    Why would we not immediately mandate a conditional get be given right now by all orthodox men.

    I believe that sleeping with your wife automatically invalidates any get that has been written. (Can someone who’s learned gittin more recently than me confirm this?)

    As for conditional kiddushin, there are opinions that you’re only allowed to sleep with your wife if kiddushin was unconditional.

  28. Joseph Kaplan says:

    In addition to Emma’s very cogent explanation of one reason why agunah/prenup is different from other issues, another is that many rabbis have recognized agunah as a problem that halacha cannot really solve. How many rabbis have we heard say, “oh we’d like to find a solution but we simply can’t find one in halacha”? So if there is a partial solution or a helpful step, it is important that if that is the best we can do it should be instituted with some force.

  29. aiwac says:

    Does halacha allow for no-fault divorce?

  30. emma says:

    re: shacharhaamim on reconcilliation.
    the BDA prenup says “Wife-to-Be waives her right to collect any portion of this support obligation attributable to the period preceding the date of her reasonable attempt to provide written notification to Husband-to-Be that she intends to collect the above sum.”
    presumably if a couple separates but is still considering reconciling she would often not provide such notice just yet, for the same reasons that without a prenup couples sometimes separate without initiating divorce proceedings.

  31. Question says:

    1. While I do have a prenup, I’m somewhat surprised by R’ Broyde’s willingness to encourage people to press their rabbis. I don’t think that’s how the halakhic process generally works, and it makes me very nervous.
    2. I like that the RCA is broad enough and open enough to include members who for halakhic reasons are opposed to using a prenup. It reflects sophistication and understanding of the halakhic process. To reiterate a point others have made, the IRF’s approach is much more narrow and doesn’t respect each individual rabbi’s right to decide on this issue. (It goes without saying that all feel the plight of the agunah, and the only question is if rabbis who disagree with the prenup have the right to)

  32. emma says:

    “broad enough and open enough to include members who for halakhic reasons are opposed to using a prenup”

    I would be interested to poll RCA rabbis who do not use a prenup on why. Are there any who never use it? If so why? Could be halachic reasons. I think more common are those who use it when asked, not when not, which doesn’t sound like halachic objections to me. I have my suspicions re: other reasons at play but without more info will not speculate here.
    (FTR I am not an unequivocal prenup supporter. but i think the collective action argument i made above is quite strong.)

  33. IH says:

    I don’t understand Question’s Point #2.

    Either the RCA “RESOLVED that every member of the Rabbinical Council of America will utilize Pre-Nuptial Agreements” (quote from the post) or it didn’t.

  34. emma says:

    i think the point is that it resolved, but in practice tolerates dissent by not making prenup use “a condition of membership.”

  35. IH says:

    Is different language used for RCA resolutions that are mandatory under threat of being invited to their Va’ad ha’Kavod?

  36. Joseph Kaplan says:

    “It goes without saying that all feel the plight of the agunah, and the only question is if rabbis who disagree with the prenup have the right to.”

    Not only does it have to be said, but more importantly it has to be true. And I’m not convinced it is.

  37. Steve Brizel says:

    R Broyde, as always, raises very important issues, but I agree with R Joel Rich’s comment on why the IRF focused on the PNA. I am not sure whether the as of yet not universal use of the PNA ( for more on the views of RHS and RM Willig , see the ORA website) is due to the laiety that addresses its halachic and hashkafic inquiries to the RY of RIETS or the rabbinate. Why insist on mandating compliance by the rabbinate with the use of a PNA if parents of a would be chasan and kallah, who are otherwise presumed to be halachically aware of such issues and generally pay the bills for their kids simchas, don’t use their financial clout as parents to tell their children “no PNA, no chasunah.”

  38. Steve Brizel says:

    Question’s Point #2 IMO, misses the issue. The Poskim to who the RCA looks to for halachic guidance developed the PNA. How can opposition to the use of the same be viewed as reflecting “sophistication and understanding of the halakhic process”?

    I think that there is a great deal of public and communal sensitivity, both rabbinic and lay, about the plight of the agunah, which has always been present, and which one can find in many of the greatest Sifrei ShuT.That sympathy should never be confused with a view that Hilcos Gittin should be dumbed down, as R Broyde once noted, in a way that halachic requirements are ignored or dispensed with , ala Divorce Las Vegas style.

    Like it or not, the Gzeras HaKasuv of Vkasvah Lah Sefer Krisus and the understood view that it be done with the free will and consent of the husband, presents any husband in that scenario a simple choice on his behalf-he can either act properly and imitate Moshe Rabbeinu or improperly like Yeravam Ben Nevat. Adoption and insistence upon the execution of a PNA, whether before or after the Chasunah, as well as responsible exercises in public pressure against a recalitrant husband are the only real weapons if one wants to ensure that a Get is given in accordance with halachic norms, as opposed to ignoring and violating the same and creating Mamzerim from the result of a Get Meusah.

  39. MiMedinat HaYam says:

    if you want to reject rabbis from rca membership for not using the prenup, you open up the issue of rabbis who do questionable weddings, including cohanim / divorcees (which someone here claims is only a small subset), questionable giyorot/gerim (not giving the mesader kiddushin an option, even if the original gerut meets RCA standards, but not the RCA-rabbanut standards).

    2. current rca / bda policy strongly discourages “machzir gerushato” situations (by requiring immediate get, without marriage counseling, even if the husband (its never the wife) realistically requests it.)

    3. major problem with the rca prenup is that it sends the dispute to the rca bet din. is that proper, when the rca bet din has questionable policy that is really not accepted by any other bet din, now or in history.

    4. there is a way to do conditional get, but it doesnt solve the (later) cohen issue (in fact, it excacerbates it), and its too one sided against men, that no one will really do it. (its also very un-”p.c.”) i’m surprised the aguna advicates dont insist on it, anyway.

    (sleeping with the conditional wife is an easily overcome issue, but it involves very un-”p.c.” (= politically incorrect) issues.)

    5. many towns in europe (mostly the germanic ones) have several names for diff nationalities. as jews, we prefer the german name. thus bratislava = slovak, pressburg = german, pozony = hungarian. mayence, i assume is french.

    tell your chassidic freinds who dont know that, they should go to vaduz. money means money in any language. (humor)

  40. MiMedinat HaYam says:

    BTW, the phila situation involved a mesader kiddishin (RW RY) who says the PNA is non halachic.

  41. Steve Brizel says:

    How about this for a shul program-a PNA signing party for those who are married? I can’t imagine any MO/OU/RIETS orbit shul not holding the same with the assistance of ORA.

  42. HAGTBG says:

    Why insist on mandating compliance by the rabbinate with the use of a PNA if parents of a would be chasan and kallah, who are otherwise presumed to be halachically aware of such issues and generally pay the bills for their kids simchas, don’t use their financial clout as parents to tell their children “no PNA, no chasunah.”

    Because in an age where people commend those who harass get-refusers in the media and on social media where the entire world can see, a woman or her family can not say “well, even if there is a 0.01% chance this will happen to me, I am willing to take that risk.”

    We all pay the price when there is no get.

  43. Steve Brizel says:

    HAGTBG wrote:

    “Because in an age where people commend those who harass get-refusers in the media and on social media where the entire world can see, a woman or her family can not say “well, even if there is a 0.01% chance this will happen to me, I am willing to take that risk”

    I don’t see the above comment as responsive to my query. I have long been advocating the pro-active use of the PNA, but the universal use of the PNA is equally dependent both on educated laiety who insist on its use as a prerequisite for paying for a simcha and rabbonim who view its use as a condition precedent to their officiating. Rabbinical compliance IMO, and insistance on the same, without parents having as strong a committment to the use of a PNA strikes me as a poor solution, and obviates those with the financial clout from blame for not expressing their views and insisting upon the use of the PNA.

  44. Toronto Yid says:

    I wish the YU Roshei yeshivot would recognize that there is a world outside of the US, and added something like “in jurisdictions where it is enforeceable”. At least R. Broyde makes passing note in this article when he says that the prenup works in the US.

    Here in Ontario, Canada it *used* to work under the province’s laws of using mutually agreeable extra-legal bodies for binding arbitration. Unfortunately, the Muslims tried to start using the same framework to impose Sharia law and the government freaked. Rather than be politically incorrect and forbid them to do so, they took it away from EVERYONE. I spent a lot of Shavuot explaining to people that the letter in the YU Shavuot to Go package was of academic interest here.

  45. HAGTBG says:

    I would also add that “but for” takanat-rabbenu-gershom we would have the option of common-law marriage with at-will divorce (a.k.a. “pilegesh”).

  46. Moshe Shoshan says:

    For all the importance of the PNA I am uncomfortable with calling it a “magic bullet” as Understand it still has not been fully tested in the US court system and could easily be struck down. We cant rely only on this.
    Also, Why doesn’t R. Bleich’s argument also invalidate a ketuba?

  47. HAGTBG says:

    Rabbinical compliance IMO, and insistance on the same, without parents having as strong a committment to the use of a PNA strikes me as a poor solution, and obviates those with the financial clout from blame for not expressing their views and insisting upon the use of the PNA.

    Steve, maybe it wasn’t responsive because you left out the last line of my reply.

    My point was that, as the result of an agunah situation, affects the community (both through requesting communal activism and through communal embaressment at the nowadays-inevitable news coverage), thereby it would be reasonable for the rabbis to also develop a communal position on responding to it.

    But, I’d also ask why parental insistence at the time of marriage is relevant. The document is only relevant at all if (a) Party A to the marriage is seeking the get, (b) Party B refuses, and (c) the beit din selected by contract enacts a penalty, and (d) Party A moves to enforce the penalty in a civil court. In that context, I assume we would be well past whatever thought process the kallah’s parents had at the time of the marriage.

  48. Shalom Spira says:

    Ye’yasher kochakha, R’ Moshe Shoshan, on the excellent question against R. Bleich. Indeed, R. Mordechai Willig poses the same question (albeit without mentioning R. Bleich by name) in his recent lecture on Nov. 27, 2011, recorded at http://www.yutorah.org/lectures/lecture.cfm/766175/Rabbi_Mordechai_I_Willig/Prenuptial_Agreements .

    Namely, R. Willig asks that every ketubah – with its various tosefet ketubah additions – should be disqualified according to R. Bleich’s line of reasoning (-again, R. Bleich not explicitly mentioned by R. Willig but should be implicitly read into R. Willig’s lecture), since every ketubah operates on the basis of an asmakhta! [Viz. the groom does not anticipate at the time he marries his bride that he will divorce his bride in the future. Why then should the groom be able to obligate himself to pay the bride money in the case that he divorces her?] R. Willig argues that just as the tosefet ketubah is valid, so too must be the 1993 Beth Din of America prenuptial agreement.

    It seems to me that – if I may answer on behalf of R. Bleich – a distinction between the ketubah and the Beth Din of America prenuptial agreement is that the ketubah was ordained by the Sanhedrin, such that it operates by virtue of hefker beit din hefker. [See Rashi to Pesachim 7a, s.v. afilu be-chitei kurdenaita.] By contradistinction, the Sanhedrin has not (yet) ordained the 1993 Beth Din of America prenuptial agreement.

  49. Y. Aharon says:

    The letter from the YU rashei yeshiva is certainly welcome, but note what names aren’t on it. R’ Spira has already posted about Rav Bleich’s opposition to the BDA prenuptual agreement. I also note the absence of Rav Meir Twersky’s name. Nonetheless, if a clear majority of the poskim for the RCA decide that a prenup agreement is needed in order to effect a marriage, then the minority should accept it. They can just decline getting involved in siddur kidushin. Why does the majority require some kind of universal RCA approval before ruling for their rabbis?

  50. Nachum says:

    “I’m not sure if this was the original intent when it was devised”

    That was the whole point, indeed.

    Rachel Levmore: Thanks for clearing that up. I also wonder why the US one wouldn’t have it.

    “according to those who believe Toevah = immoral.”

    Actually, it means “disgusting,” but I know how you lot on the left like to twist language.

    To those who brought it up: Counseling is written into the agreement, at least in the Israeli one.

    Shalom Spira: Trust me, many people today know that divorce is a real possibility.

    By the way, you do realize that your over-the-top compliments really come across as “damning with great praise,” don’t you?

    “without marriage counseling, even if the husband (its never the wife)”

    As I said, the Israel one requires it. And what makes you think that it’s always women who walk out on men? Please.

    Y. Aharon, so? There are some pretty big names here.

    http://download.yutorah.org/2012/1053/Shavuot_To-Go_-_5772_prenup.pdf

  51. Steve Brizel says:

    HAGTBG wrote in relevant part:

    “My point was that, as the result of an agunah situation, affects the community (both through requesting communal activism and through communal embaressment at the nowadays-inevitable news coverage), thereby it would be reasonable for the rabbis to also develop a communal position on responding to it.

    But, I’d also ask why parental insistence at the time of marriage is relevant..”

    There is no doubt that the refusal to give a get is a Chillul HaShem.

    As long as parents are footing the bill for the Chasunah in some manner, however they divide the same, parents of would be kallahs, have the right, and IMO, possibly the obligation as responsible parents, to ensure that a PNA is used. RHS recentlty discussed at YU at an ORA forum a case of a very controlling would be chasan whose future in laws insisted on breaking up a shidduch because the would be chasan refused to sign a PNA. Years ago, RHS told me that parents of would be kallas would have every right to insist on not allowing such a shidduch to take place.

    It strikes me that the insistence of a PNA is simple common sense which every parent of a kallah can exercise without demanding that rabbinical organizations view the same as the equivalent to conduct becoming a rav.

  52. HAGTBG says:

    It strikes me that the insistence of a PNA is simple common sense which every parent of a kallah can exercise without demanding that rabbinical organizations view the same as the equivalent to conduct becoming a rav.

    Steve, what does that have to do with whether it is good social policy for rabbis to compel the PNA? Or whether rabbis themselves ought be compelled to perform only ceremonies in which the PNA is used?

  53. chakira says:

    A quick google books search shows that Ben Sasson, Kanarfogel Chazan, Menachem Elon, Yerushalmi call it Mainz.

  54. aiwac says:

    “It seems to me that – if I may answer on behalf of R. Bleich – a distinction between the ketubah and the Beth Din of America prenuptial agreement is that the ketubah was ordained by the Sanhedrin, such that it operates by virtue of hefker beit din hefker. [See Rashi to Pesachim 7a, s.v. afilu be-chitei kurdenaita.] By contradistinction, the Sanhedrin has not (yet) ordained the 1993 Beth Din of America prenuptial agreement”

    You can’t be serious.

  55. MiMedinat HaYam says:

    hagtb — “I would also add that “but for” takanat-rabbenu-gershom we would have the option of common-law marriage with at-will divorce (a.k.a. “pilegesh”)”

    that is (essentially) what the (above mentioned) conditional marriage will end up being. (does a pilegesh need a get? i think so, but she gets no ketuba.)

    2. what about a prenup who’se other terms are so one sided no one wants to enforce it? (i mean incorporated into a reg pre nup; and indivisible in its terms).

  56. MiMedinat HaYam says:

    if the ketuba is (halachicaly, due to its sanhedric origins) valid, but a pre nup may be questionable, why not incorporate the pre nup into the ketuba itself?

    (ans — for some reason, the wording of the ketuba has become sacrosant in current ashkenazic circles (MO and charedi); sfardim have no such compunctions; neither did ashkenazim over the centuries.)

    (also, it makes a mockery of the ketuba.)

  57. Joseph Kaplan says:

    “but the universal use of the PNA is equally dependent both on educated laiety who insist on its use as a prerequisite for paying for a simcha and rabbonim who view its use as a condition precedent to their officiating. Rabbinical compliance IMO, and insistance on the same, without parents having as strong a committment to the use of a PNA strikes me as a poor solution, and obviates those with the financial clout from blame for not expressing their views and insisting upon the use of the PNA.”

    Of course it would be wonderful if all parents would insist on the PNA. And of course it’s not as good if the rabbis insist and the parents don’t care or, even worse, are opposed. but this is a case where rabbis actually have some power; no PNA, no kiddushin. So while that’s not the best solution, it’s a pretty effective one for getting a PNA used in all marriages officiated by RCA members. But, of course, since the IRF is actually doing something concrete about this, it has to be wrong. Ahhh, how difficult it must be to dance among the competing ideologies of strongly advocating the PNA, strongly praising the RIETS RY and strongly opposing anything those to the left of the RCA advocate. Makes it understandable why the position is so muddled.

  58. MiMedinat HaYam says:

    IH — i know about the “lieberman clause”, and extending that argument (i dont want to change the topic, but …) that only reinforces my argument that putting the same change into a side document not only is subject to the same arguments, but makes a mockery of the ketuba, too.

    (which prob is a mockery, since not only does no one enforce it (or even define its 200 zuz), every one goes for the big bucks, not the 200 zuz.)
    (200 zuz = some form of one year’s living expenses. everyone goes for equitable distribution, other split of assets not condoned by halacha. unless its redefinition is included in the ketuba, which no one (except sfardim, rarely) customizes.

  59. MiMedinat HaYam says:

    j kaplan — part of the problem you cite is that many MO grooms use their (often RW) RY, not their local shul rav. besides the insult to the shul rav, who nurtured them, etc and led them to that yeshiva, the RY is often anti pre nup. (unless its a YU RY).

  60. Joseph Kaplan says:

    For once I agree with MMHY.

  61. Nachum says:

    “Ben Sasson, Kanarfogel Chazan, Menachem Elon, Yerushalmi”

    You mean their English translators did. :-)

    MMY, sephardim stick millions into their ketubot. It discourages divorce. :-) (In Israel, yes, the Ketubah is enforceable and enforced.)

  62. shachar haamim says:

    “MMY, sephardim stick millions into their ketubot. It discourages divorce. :-) (In Israel, yes, the Ketubah is enforceable and enforced.)”

    actually the higher the amount the more likely the beit din is to invalidate the amount for a variety of reasons having to do with asmachta lo kanya and other such principles. A couple living in Modiin putting in NIS 250K is more likely to discourage actions which could lead to a payout on the ketuba than a couple from Ofakim putting in NIS10MM which everyone knows is a joke

  63. Rachel Levmore says:

    HAGTBG, Nachum and Z:

    Re The RCA reciprocal prenup—My educated guess as to the reason that the “standard” prenuptial agreement of the BDA is not reciprocal is simply that it is historical. Rabbi Mordechai Willig set out at the time to solve the agunah problem for women, which is the more difficult one halakhicly, and developed the nusach which received the haskama of Rav Ovadia Yosef, Rav Zalman Nechemia Goldberg, Rav Chaim Zimbalist and more. It was on the basis of that nusach that the BDA agreement in English was built. Following that came more developments: for example, a need to compose a different agreement in keeping with California law which determined the necessity of a reciprocal version.
    There is a standard reciprocal version (as opposed to the California version) which is available upon request from the BDA. I have signed people on it in the past. I suppose that if there is a demand for it, the BDA will post that as well on theprenup.org site.

    Shalom Spira:

    There are several more halachic mechanisms preventing claims of asmakhta, built into the Agreement for Mutual Respect (http://www.youngisraelrabbis.org.il/prenup.htm). Please refer to the text of the agreement in English or Hebrew to see. I will relate to two of the potential problems which you brought up.
    Kim li—You explained well “Therefore, because a husband has the right to say “kim li”…”. This possibility was treated in the Agreement for Mutual Respect by the acceptance of the parties of Clause “I” which states:
    “If a disagreement arises among the decisors of Jewish law regarding the validity of the agreement or any provision therein under Jewish law, the Couple shall adopt the method that grants validity to the surviving clauses of the agreement. Each of the Couple undertakes to pay the other side any sum, …such that the Jewish law mechanism of kim li may not be asserted.”

    Me-akhshav—Again you explained well: “Kinyan me-akhshav”, as described in Shulchan Arukh Choshen Mishpat 207:14, only works for a specific tangible item under discussion, and not for a future debt…”. Indeed this is one of the reasons that the spousal support taken on by the husband in the Agreement for Mutual Respect is self-obligated from the point of the marriage itself. The wife is “mochelet” (waives) the high spousal support as long as they are living together in peace. The wife can demand the high level of support only if there is get-refusal. One should examine the agreement in its entirety to see how this actually works, but here is the quote of the foundation of this principle:
    “The Man hereby now (me’achshav) obligates himself from the date of their marriage and as long as they are married in accordance with Orthodox Jewish Law, to make monthly maintenance payments to the Woman …
    Notwithstanding this obligation of maintenance payments by the Man, the Woman agrees that she will be satisfied with the financial support she receives, as customary and lawful from the date of the Marriage until the… ” [end of an interim period which is a sign of the refusal to end the marriage]

    With these mechanisms and others (like shevuah) in place, asmakhta is avoided.

  64. Lawrence Kaplan says:

    Nachum: Kanarfogel, Chazan, and–yibadel bein hayyim le-hayyim– Yerushalmi all write (wrote) in English!

  65. MiMedinat HaYam says:

    shachar haamim — “MMY, sephardim stick millions into their ketubot. It discourages divorce. :-) (In Israel, yes, the Ketubah is enforceable and enforced.)”

    actually the higher the amount the more likely the beit din is to invalidate the amount for a variety of reasons having to do with asmachta lo kanya and other such principles.”

    actually, i was an “eid” for a good friend of mine in israel years ago (still happliy married) where rav lau (then still rav of natanya) was mesader kiddushin, and the groom (my friend) said a few million shekel tzamud. rav lau said “that is making a mockery of the ketuba”, and didnt allow it.) all were askhkenazim, and i later found out both parties owned several million in real estate (good friend of mine — i never knew) in brooklyn, and tel aviv.

  66. Shalom Spira says:

    R’ Y. Aharon and R’ Aiwac,
    Thank you for the kind recognition.

    R’ Nachum,
    Thank you for effectively answering R’ Mi-Medinat ha-Yam’s question on me. Namely, R’ MMY (-a most appropriate nom de plume for this conversation, given the opening mishnah in Gittin) asked why not incorporate the BDA prenuptial agreement into the tosefet ketubah, seeing as the tosefet ketubah enjoys the imprimateur of the Sanhedrin. The answer, as you are saying, is that – quite the contrary – the tosefet ketubah is only paid after divorce, whereas here the BDA wants the husband to pay money to the wife before the divorce, and that is something the Sanhedrin never legislated. Ye’yasher kochakha for rescuing R. Bleich (and – le-havdil ani ha-katan myself) from this excellent and important question.

    R’ Nachum, thank you – as well – for the honour of your excellent question that the groom knows that divorce is a real possibility. I believe that R. Bleich will answer that real possibility is not the same as inevitability, and hence the BDA prenuptial agreement is still unenforceable in a Beth Din due to asmakhta. The groom would not marry the bride if he knew he would divorce her. In fact, the gemara in Yevamot 37b posits a rabbinic prohibition against marrying a lady whom one intends to divorce.

    Dr. Levmore,
    Thank you for your response; it is an awesome privilege for me to correspond with you. I have studied your erudite writings for several years now and this is my first time I have the opportunity to express my hakarat ha-tov. Essentially, I believe that the fact that your Agreement for Mutual Respect contains a clause asking the parties to waive their “kim li” rights in advance is itself a reflection of the fact that the BDA prenuptial agreement (which contains no such clause) is disqualified on account of “kim li”, as indicated by R. Bleich. Thus, I congratulate you, Dr. Levmore, on publicizing this important pesak halakhah of R. Bleich. Hopefully, this will – in and of itself – convince grooms to switch to the R. Yaakov Kaminetzky prenuptial agreement (scheduled for publication online this coming 15 Menachem Av).

    Now, as to whether parties are capable in Jewish law of waiving their “kim li” rights in advance (as the Agreement for Mutual Respect asserts), in my limited opinion I know of no such source in Shulchan Arukh Choshen Mishpat. [I admit that I do not possess semikhah yadin-yadin, and so I could be entirely mistaken. Please feel free to refute me if you possess a source that one can waive his "kim li" rights is advance.] Additionally, once the wife becomes a moredet or even a safek moredet, she forfeits her rights to any money, and thus even the husband promising to support her until the end of the marriage will not help (in my opinion).

    This is why the R. Yaakov Kamenetzky prenuptial agreement (built on the mishnah in Ketubot 101b, and thus definitely part of our tradition of jurisprudence) is – in my opinion – the ideal solution. In this scheme, the husband pays the wife when they are happily living together, not when the marital harmony dissolves. Yet by the time marital harmony dissolves, the wife has accumulated so much money (and the husband is commensurately so impoverished) that the wife can essentially offer to pay her husband to grant her a sefer keritut. Nevertheless, Dr. Levmore, my own essay would not be possible without your scholarly efforts, and so you will be credited in the prenuptial agreement to be imminently published. “Megalgelin zekhut al yedei zakai” – you have eternal merit for prompting this achievement.

  67. Steve Brizel says:

    Joseph Kaplan wrote in part:

    “Of course it would be wonderful if all parents would insist on the PNA. And of course it’s not as good if the rabbis insist and the parents don’t care or, even worse, are opposed. but this is a case where rabbis actually have some power; no PNA, no kiddushin”

    Why shouldn’t the obligation be jointly of parents and rabbis? The notion that parents don’t care or are opposed to employing a PNA requires proof, especially in the context of MO families with a RIETS musmach as their rav, as opposed to stating the same as established facts. Like it or not, parents have the financial power to pay for a chasunah, and rabbis don’t. The notion that the average would be mchutanim are ignorant of the benefits, let alone the existence of a PNA,with today’s well known and messy cases of agunos and increased divorce , and the well known and documented advocacy for its use, strikes me as paternalistic and justifying ignorance where the facts are easily ascertainable by anyone with a child “in the parsha.” Why insist on solely mandating rabbanim to do work that can and should have been easily done and insisted upon by any responsible parent?

  68. IH says:

    Steve — The RCA resolution quite clearly puts the onus on the Rabbi: “BE IT RESOLVED that every member of the Rabbinical Council of America will utilize Pre-Nuptial Agreements”. It was not resolved that the Rabbi should make a best-efforts attempt to educate the parents and couple to utilize Pre-Nuptial Agreements.

  69. Steve Brizel says:

    IH-Such a resolution reminds me of what President Andrew Jackson once commented about a decision rendered by CJ John Marshal and the SC that infuriated Jackson. Jackson commented that CJ Marshall has rendered his decision-now let’s see him enforce the same.In the same vein, it is far easier to run for President and win an election than to be an effective President.

    “Enforcement” of the RCA resolution depends both on parents willing to break up a shiduch when a chasan or kallah refuses to consider the execution of the PNA, well in advance of any asking any rav to serve as a Msader Kiddushin. Obviously, a rav who is an RCA member and considers the PNA as halachically guiding would be well advised in accordance with the Kol Kore, at least in the US, in telling the young couple that he would not so serve in the absence of a duly signed PNA by the Chasan and Kallah.

  70. Joseph Kaplan says:

    “Why shouldn’t the obligation be jointly of parents and rabbis?”

    It should be. And when there will be an organization of Jewish parents, that organization should pass a resolution denying membership to all parents whose children don’t sign a PNA. Until then, only the RCA can, and should, do so. Of course, the rabbis, friends and family of the couple and their parents should try to convince them to sign the PNA.

    ” Like it or not, parents have the financial power to pay for a chasunah, and rabbis don’t.”

    But the rabbis have the power to refuse to officiate at the wedding.

    “Why insist on solely mandating rabbanim to do work that can and should have been easily done and insisted upon by any responsible parent?”

    How do you propose to “mandate” the parents to be responsible.

    Steve, I agree that PNAs are important and that every couple should sign one. I agree that parents should take a strong and proactive role in ensuring that their children sign PNA. But none of that means that rabbis can’t use their power as well. And that power is to refuse to officiate if there’s no PNA. And in order to ensure that rabbis exercise this power, which is for the betterment of the entire Jewish community, the RCA should, as R. Broyde suggest, learn from the IRF. You see, organizations that you disagree with can sometimes have good ideas too. That’s something R. Broyde understands and, apparently, you don’t. I would have thought you, a major supporter of the PNA, would have been the first to jump on this bandwagon and I would have happily jumped with you. It’s too bad you’re letting unrelated ideology stand in your way.

  71. Steve Brizel says:

    Joseph Kaplan-I have always been an enthusiastic supporter of the PNA. IMO, the Kol Kore from the RIETS RY, which is predicated on R Willig’s drafting of the PNA with the input of R Z N Goldberg and ROY, and RHS’s repeated public endorsement of the PNA, is far more powerfulas a statement of how a rav should act in such circumstances than any well thought out statement of rabbinical prerogative and discretion by the IRF. If the Msader Kiddushin considers himself to be a talmid in any fashion of the RIETS RY, then I tend to doubt that such a rav would be a Msader Kiddushin without demanding that the couple sign a PNA. That being the case, parents who generally are footing the bill should not abdicate their parental responsibilities by allowing the Chasunah to proceed without a PNA. That means if a would be chasan the parents would be well advised to invoke the “no PNA, no chasunah” rule.

  72. Fotheringay-Phipps says:

    IMHO, any man who signs one of these PNAs is crazy – unless he is forced to – and anyone who pressures a groom into signing one is possibly in violation of lifnei iver (in the form of giving bad advice). The deck is stacked so heavily against men in divorce situations as it is, that losing the one tiny shred of leverage that a guy has – for nothing in exchange – is crazy. IMHO, of course.

    I find it very hard to believe that RY Kaminetsky ever proposed a stipulation that “the husband pays the wife when they are happily living together” to the point that “by the time marital harmony dissolves [...] the husband is [...] impoverished”.

    Re asmachta, I haven’t learned the sugyos recently, and I certainly can’t speak for R’ Bleich, but I think there may be a difference of degree & severity. In general, clauses which are compensatory in nature are not considered to be asmachta, while clauses which are punitive in nature are.

  73. Nachum says:

    Prof. Kaplan,

    Yes, I meant the ones who write in Hebrew.

  74. aiwac says:

    Fotheringay-Phipps,

    The solution to that is to work to equalize divorce law, not to maintain the get as “leverage”.

  75. MiMedinat HaYam says:

    “The groom would not marry the bride if he knew he would divorce her.”

    isnt this r rackman z”l’s rationalization for his one sided gitten?

    in reverse. (the wife would not have married the husband if she would know he would not give her a get. )

    (if as, f-p says, he would insist on his rights. etc.)

  76. MiMedinat HaYam says:

    i remember, in the 1990′s r willig said he would still perform a ceremony even if there was no pre nup. he cited a (then) recent case where the bride’s father objected.

  77. Harry Hirsch says:

    Answers to: What should I know about vaccinations
    http://tinyurl.com/c47ha8s

  78. Rachel Levmore says:

    Shalom Spira:

    In regard to your question if it is possible to waive one’s right to claim “kim li”, I actually am unsure of etiquette here, if it is acceptable to enter into lengthy technical discussions, so I will respond briefly:

    1. The first (perhaps less satisfying) response is that of “sevara”: Based on the principle of “adam hu ba’alim al mamono” and that one who poses a condition on what is written in the torah (a de’oraita) within dinei mamonot, the condition is valid (see Shulchan Arukh, Even HaEzer 35:5), then in a prenuptial agreement where we are taking upon ourselves monetary obligations— kal v’chomer we can state a condition on kim li.
    2. Nevertheless, recognizing that there may be a doubt cast upon the waiver of kim li, the wording of the clause in the Agreement of Mutual Respect additionally states: “Each of the Couple undertakes to pay the other side any sum, and grants the other party all rights in accordance with the method granting validity to the surviving provisions of the agreement,…” This means that even if one would claim kim li, he nevertheless obligated himself to pay the other party the sum in accordance with the opinion giving validity to the obligation in the agreement. This sort of monetary obligation is valid.
    The Shach authored a sefer (which I did not learn) about sefakot in facts or a machloket poskim, entitled תקפו כהן. See Shach on Choshen Mishpat 25:17.

    Secondly, your opinion that “even the husband promising to support her until the end of the marriage will not help” if the women is a moredet, has been addressed as well in the Agreement for Mutual Respect in each of the subclauses in clause “E” of the agreement called “Obligations of the Man”. I suggest that you read it in full as I will just bring one of them here: “E(4). These Obligations are fully valid and enforceable regardless of any action or omission by the Woman.”

    Shabbat Shalom.

  79. Shalom Spira says:

    R’ Fotheringay-Phipps,

    Thank you for your analysis. Your knowledge of the asmakhta sugya is indeed encyclopedic, as your distinction between compensatory contingencies and punitive contingencies perfectly encapsulates the dispute between R. Hershel Schachter and R. Bleich regarding the BDA prenuptial agreement.

    Namely, in an attempt to validate the 1993 Beth Din of America prenuptial agreement, R. Chaim Jachter (p. 14 of Gray Matter Vol. 1, Noble Book Press, 2000) reports that he was told by R. Hershel Schachter that “the problem of asmakhta only arises when one commits to an exorbitant sum, which he undoubtedly does not plan on paying/ In this case, however, the husband is agreeing to pay a reasonable sum for supporting his wife”. The source offered for R. Schachter’s thesis is the gemara in Bava Metzi’a 104a.

    This, however, is contested by R. Bleich in Be-Netivot ha-Halakhah I, pp. 21-22. R. Bleich explains that Bava Metzi’a 104a addresses a unique case of an employee who promises to work his employer’s field, reinforcing his promise with a financial penalty should he fail to materialize at his job post. Rashi to that gemara comments that the reason the employee must pay when he fails to materialize at his job post is that the employee caused the employer massive financial loss (since the field was ruined through neglect), and a promise to work a field that demands immediate attention – when one actually will not materialize at the job post – ipso facto damages the land owner (who would have otherwise hired someone else had he realized in advance that the worker is not trustworthy). Alternatively, Rashba, Ran, Nimukei Yosef and Ramban in the name of Rav Hai Gaon (all on Bava Metzi’a 73a) suggest that the reason the employee must pay is that this is a special communal enactment that the Sanhedrin ordained. R. Bleich claims that neither of those justifications are germane in the case of the 1993 Beth Din of America prenuptial agreement. The husband never agreed in advance of the marriage to divorce his wife (-nor, for that matter, is it halakhically possible for an advance agreement to divorce to operate, as the laws of divorce are different than the laws of hiring field workers), nor did the Sanhedrin ever ordain the BDA prenuptial agreement.

    [To strengthen R. Bleich's argument, it seems to (le-havdil ani ha-katan) this student that one can hardly term a support agreement to be “reasonable” when a wife is a moredet. A husband owes a moredet wife absolutely nothing.]

    R’ Mi-Medinat ha-Yam,
    Thank you for your excellent question. Indeed, R. Bleich is enunciating exactly the same thesis as R. Rackman zt”l, as you indicate. The reason I believe R. Bleich’s position is normative whereas R. Rackman zt”l’s was not (with all due reverence manifest before R. Rackman) is one of context. In the context of R. Rackman, he was speaking of kiddushin. Kiddushin is absolute (unless the groom starts attaching “al menat” conditions to the conditions, a bizarre spectacle at any chuppah in the past several centuries). R. Bleich, on the other hand, is addressing the BDA prenuptial agreement, which is predicated on a contingency (the groom accepts upon himself to start paying $150 a day to the bride should the domestic residence together ever cease). Contigency cases are not absolute, and hence the Rackman/Bleich objection of asmakhta is effective.

    Dr. Levmore,
    Thank you very much for your response. I will examine the sources you have indicated over Shabbat. In the meantime, what can be said is that your prenuptial agreement is different from the BDA prenuptial agreement (which makes no attempt to insert the clause of waiving “kim li” rights in advance), and thus I believe your words confirm R. Bleich’s thesis in denying the validity the BDA prenuptial agreement.

  80. Shalom Spira says:

    R’ Fotheringay-Phipps,
    You cogently object to the prenuptial agreement of R. Yaakov Kamenetzky (as I am reformulating it) that it impoverishes the husband. I plead guilty to this charge. But I believe that one who recognizes the superiority of the righteous ladies of Israel (as enunciated by RMF in IM OC 4:49, where he outlines the role differences between ladies and gentlemen, and notes that in many cases Chaza”l recognized ladies as the spiritual heroes) will say it is worth the price in order to save agunot. In my opinion, the law of the Torah disqualifying coerced gittin simply cannot be circumvented by any contractual gimmick. The only solution is to load the lady up with so much cash before the marriage begins (as Yitzchak Avinu did in the case of Rivkah Imeinu, as per Rashi to Genesis 27:9) that the wife controls the purse-strings of the marriage, and so she can pay the husband for a bill of divorce. Here, there is no coercion on the husband whatsoever. He is getting a “steal of a deal”.

  81. Fotheringay-Phipps says:

    Shalom Spira: “Your knowledge of the asmakhta sugya is indeed encyclopedic”

    I vehemently dispute this. :)

    Re RYK, I’d like to see some actual evidence of what you claim he said before accepting that he said it.

    aiwac: “The solution to that is to work to equalize divorce law, not to maintain the get as “leverage”.”

    OK, you get to work on that. Good luck in your endeavors. However until that happens …

  82. Shalom Spira says:

    R’ Fotheringay-Phipps,

    If I may secure your permission to reformulate your important rejoinder to me, what you are really asking is that if R. Yaakov Kamenetzky publicly told an Agudath Israel meeting to implement R. Bleich’s prenuptial agreement (patterned after Rashi to Genesis 27:9) for the sake of rescuing agunot, why does the Agudath Israel not actively encourage its use? There are two competing answers to this question: R. Bleich’s and (le-havdil ani ha-katan) mine. My answer is that there is a small problem in the prenuptial agreement which needs to be corrected (reflected in the Or Same’ach to Hilkhot Mekhirah 11:17, and which B”H will be corrected this coming 15 Menachem Av), and thus the Agudath Israel does not feel comfortable endorsing the prenuptial agreement (notwitstanding R. Kamenetzky’s glowing approbation), until this correction is orchestrated. R. Bleich (self-evidently) disagrees with me, and he believes his prenuptial agreement is kosher. His explanation why his prenuptial agreement has not been adopted is reflected in the following e-mail I was privileged to receive from him on April 26, 2012:

    “Again, I must propos my tosefes mezonos. It is not because of halakic considerations that it has not been instituted. The reasons are (a) policy concerns and (b) lack of initiative and/or interest – that will apply to any proposal you, I and anyone else will propose.”

    Hence, as mentioned, there currently some legal wrangling between R. Bleich and (le-havdil ani ha-katan) myself. The core of the debate is that R. Bleich’s prenuptial agreement gives the wife a choice every day either to receive mezonot on her husband’s table or to receive a large sum of tosefet mezonot when she does not eat on her husband’s table. When the marital harmony dissolves, the lady can simply say she wants tosefet mezonot, and this is coercion over maintenance, rather than coercion over divorce. It is this agreement which R. Kamenetzky endorsed. My counterclaim is that the lady is a moredet once she leaves her husband’s house and she is entitled to nothing (based on Or Same’ach). Thus, I believe R. Bleich’s prenuptial agreement should be reformulated to give the lady tosefet mezonot every day of the marriage while she is still happily residing in her husband’s house, exactly as was the case in Rebecca our Matriarch’s ketubah. Once the marital harmony dissolves, the lady is not entitled to anything, but by then she has accumulated so much money (and her husband is commensurately so impoverished) that she can offer to pay the husband lots of money in exchange for a bill of divorce.

  83. Lawrence Kaplan says:

    R. Spira: So R. Kamenetsky did not endorse your proposal, but that of R. Bleich. You may think the difference between your proposal his is a small matter, but I think that, in terms of practicality, it is huge. If you do not understand why, I despair of being able to explain it to you.

    I do not envy R. Bleich to the extent that he is working with you. You, as I well know, have great halakhic knowleldge, intelligence, energy, and good will. But you do not seem to have any idea at all as to what is realistic and what is not. Alas.

  84. [...] Mandating Prenuptial Agreements [...]

  85. DF says:

    Agreed fully with Fotheringay Phipps comments above re the lunacy of signing one of these agreements. Men do not have a fair shake in divorce courts, and no one pretends otherwise. It’s a very common subject in all streams of media, among all political stripes. So why should a man lose his leverage? Certainly he should not abuse his pwoer, but neither should the woman abuse the power currently afforded to her by “chamsanusah” courts.

  86. DF says:

    The Modern orthodox rabbis pushing such agreements on their students are doing them a huge disservice, with far-reaching reprecussions I’m shocked none of them have addressed. That is, aside from the fact that their students will be raked over the coals in the event of dovirce, G-d forbid, but their marriage prospects are shrinking with these proposals. That is, they keep urging these new agreements, but the traditional rosh yeshivahs will tell their students to stay away. So while parents of girls who follow these modern rabbis will find a much more limited pool available to their daughters. I have personally seen shidduchimg break up at the engagement door, when the father of the bride suddenly demands the chosson sign one of these things, and the chosson demmurs. And lest you say girls from such families are not interested in yeshivah bachurim and vice versa – dont kid yourself. Such “intermarraiges” are common, but will rapidly decline if these things become widespread in the MO world.

    That this issue has not been mentioned at all in these discussions betrays a distrurbing lack of foresight and vision among the modern rabbis pushing these documents, with all due respect. Previosu generations of rabbis fought hard to keep uniform traditional standards of ishus, if nothing else, among the various streams of Jews, so that marriage at least would not be foreclosed among them. It is hard enought as it is to find a shidduch. Dont these rabbis see that such agreements will impose even more artificial problems?

    For these reasons and others, I think the Agudah world, for all of its many problems, is the best and wisest of the varuiosu Jewish umbrella groups. It alone sees the long term picture.

  87. MiMedinat HaYam says:

    Such “intermarraiges” are common, but will rapidly decline if these things become widespread in the MO world

    esp with “flipping out” actually, girls (i think) flip out more (numbers and quantity) than boys.

    2. regarding the idea of post nupt “parties”, those must be accompanied by a similar post nup by the women to to the men. there is also a pblm with women not acceptimng gitten (though informally denied, when you call their feet to the fire , rabbonim admit it.)

    the reason its not done by the chuppa (pre nup from women to men) is because of a concept of “hai’sh mekadesh”” but “ha’isha einah mekadeshet”. but post nup, it doesnt apply.

  88. Nachum says:

    MMY, as was previously discussed on this thread, the version in Israel (and available for use in the US) is two-sided, and done before the wedding. (It’s not done “by the chuppa” but in a lawyer’s office.)

  89. Nachum says:

    DF: Please produce one man who signed and feels he was at a disadvantage later. One, please.

  90. DF says:

    Nachum – If there’s no disadvantage to him by signing it, then by definition its pointless. And you know very well divorce cases are private matters.

  91. Shalom Spira says:

    I thank Mori ve-Rabbi R. Kaplan for his kind words. Indeed, R. Kamenetzky agreed with R. Bleich, not with me. R. Bleich assures me that there was an individual present at the Agudath Israel meeting named R. Shmuel Yehudah Landesman (he is addressed by RMF in IM EH 4:104) who articulated my very objection against R. Bleich. R. Kamenetzky responded that R. Landesman’s objection constitutes “gibberish”, and that R. Bleich should see to it that the prenuptial agreement is implemented at every wedding.

    What can I say? I see this as a case of taking the fine flour and discarding the unrefined flour (to borrow the metaphor from Pirkei Avot ch. 5). Namely, the main message of R. Kamenetzky/R. Bleich should be accepted (viz. to institute a prenuptial agreement based on Rashi to Genesis 27:9), but some diamond-polishing is needed.

    The source of my objection is Or Same’ach to Hilkhot Mekhirah 11:17, commenting on the mishnah in Ketubot 101b. The mishnah establishes that a groom can accept upon himself before marriage that he is duty-bound to support his step-daughter for a specified period of time (e.g. five years). The mishnah continues that even if the bride/groom dies/divorce, the obligation continues. Therefore, continues the mishnah, a clever groom who does not want to end up being a sucker will stipulate that he will support his step-daughter so long as his wife remains with him. [In the latter situation, the groom is exempted from further maintenance for his step-daughter as soon as the bride/groom dies/divorce.]

    R. Bleich infers from this mishnah that even if a wife is a moredet, she is entitled to tosefet mezonot. After all, a wife who dies on her husband is surely the greatest “moredet” of all, and yet even here the husband has to keep paying to support the step-daughter! Thus, synthesizing the mishnah in Ketubot 101b with Rashi to Genesis 27:9 (who states that a husband can prenuptually agree to pay his wife extra daily maintenance), it emerges that a husband can promise to support his wife with extra maintenance, and this will be binding even when the wife is a moredet. To save the husband from catastrophic financial loss, R. Bleich formulates in the prenuptial agreement that every day of the marriage, the wife has a choice: either to eat on her husband’s table, or to receive tosefet mezonot. [R. Bleich anticipates that so long as the wife is on speaking terms with her husband, she will simply eat on her husband's table. Once marital harmony dissolves, the wife can move out of the house and start asking for tosefet mezonot, which will prompt the husband to divorce his wife.] It is this which R. Kamenetzky approved.

    However, it seems to me that the validity of R. Kamenetzky and R. Bleich’s premise (viz. that even a moredet is entitled to tosefet mezonot if so stipulated in the prenuptial agreement) is actually subject to a dispute between Taz and Or Same’ach, available here. http://www.hebrewbooks.org/pdfpager.aspx?req=14553&st=&pgnum=324&hilite=
    Namely, Taz (EH 60) writes that – based on the mishnah in Ketubot 101b – if the father of the groom promises to support the bride for five years, this debt continues even after the marriage dissolves through death of the groom. But Or Same’ach disagrees; he writes that since the support of the bride is an intrinsic obligation as part of marriage (as distinct from supporting a step-daughter), we automatically read into the support agreement that it exists only so long as the husband is obligated to support his wife according to Torah law. If the husband dies, then the obligation ceases, writes Or Same’ach. [And obviously, the same would apply if the wife becomes a moredet.] Due to considerations of “kim li”, Or Same’ach’s opinion prevents a Beth Din from taking money from the groom’s father.

    By the same token, I would argue that since a husband is obligated to support his wife as an instrinsic part of any marriage, any tosefet mezobot obligation the husband prenuptually accepts upon himself disappears once the wife becomes a moredet. This is essentially what R. Landesman argued before R. Kamenetzky, though perhaps without the fancy “bells and whistles” of quoting Or Same’ach.

    On May 17, 2012, I was privileged to receive from R. Bleich the following response by e-mail to my Or Same’ach argument:

    “The Taz and Or Sameah have no relevance. The phrase kol zman etc. establishes an explicit obligation obviating any umdena. The obligation is immediate and ongoing rather than contingent thereby eliminating any problem of asmachta.”

    Nevertheless, it remains the case that R. Bleich does not use his own prenuptial agreement, for public policy reasons.

  92. Joseph Kaplan says:

    DF put his finger on what is probably a critical difference between those supporting use of the PNA and those opposed: whether it is proper/legitimate/moral/menschlichkeit (choose you word or substitute one) to use the giving of a get as leverage for other matters in disoute such as financial or visitation arrangements.

  93. MiMedinat HaYam says:

    nachum — i’m surprised at the two sided pre nup in israel. i understand it is problematic, similar to double ring ceremony reasons. i like the fact that its done in the lawyer’s office. short of joseph k, i doubt any US attorney would recommend a prenup binding only one side. or shall i say, without (complete) provisions for dissolution of a marriage.

    BTW, the issue of a moredet (ex) wife still claiming her daily “penalty” was addressed by r willig in the recently posted BDA journal. it seems three out of four BDA members vote to give her the $, nevertheless. only r willig is opposed. at least the civil court sided with the husband (for non establishment clause reasons.)

  94. emma says:

    “R. Bleich infers from this mishnah that even if a wife is a moredet, she is entitled to tosefet mezonot. After all, a wife who dies on her husband is surely the greatest “moredet” of all

    I do not understand this. I always thought the deductions taken from a moredet woked as an incentive/comepnsation system to disincentivize “rebellion” and, if the incentive did not work, compensate the rebelled-against husband. (similar for a wife re: mored) A dead woman is not a “moredet” because she is not willfully ignoring her marital obligations. She’s not willfully doing anything, in fact.
    Is a woman who is physically prevented from having intercourse (say, maimed, deathly ill, or imprisoned) a “moredet”? I dont think so, but don’t know.
    On the other hand a dead woman is also not married, so query how she can be owed either mezonot or tosefet mezonot.
    It would seem rather that the payment to the step-daughter is an independent obligation.

  95. Fotheringay-Phipps says:

    JK: “DF put his finger on what is probably a critical difference between those supporting use of the PNA and those opposed: whether it is proper/legitimate/moral/menschlichkeit (choose you word or substitute one) to use the giving of a get as leverage for other matters in disoute such as financial or visitation arrangements.”

    Exactly.

    “For some reason”, a woman receiving a get has been transformed in certain circles into some sort of basic human right. I don’t accept this.

    If you look at the history of Judaism and Torah scholarship, you’ll see that husbands can be forced to give gittin only under extremely rare circumstances. (Women can’t be forced to accept a get at all, after R’ Gershom.)

    OTOH, if you look at contemporary secular culture, you’ll see that no fault divorce rules the day.

    Take your pick.

  96. MiMedinat HaYam says:

    f-p: (until a few months ago) new york state forbade a married couple from deciding to divorce on their own, absent “cause” (like adultery, cruel behavior ( = real abuse, not imagined abuse) or other minor technicalities. of course lawyers devised fictitious “roundabouts” to overcome this limitation.

  97. Fotheringay-Phipps says:

    As a practical matter, everyone in NY who wanted to get divorced got their way – there was one celebrated case in which a judge denied it, but it was the exception that proves the rule. Generally this was done by coordinated arrangements by the lawyers for both sides. Each spouse would accuse the other of some non-criminal grounds for divorce, and a long bout of attacks in court could be avoided.

    Which actually plays to the point I was making. When societal attitudes are strongly held in one direction and the letter of the law goes in the other direction, societal attitudes trump the letter of the law 99 out of a 100.

    And the same applies – unfortunately to Torah/halacha. So when the secular societal attitudes permeated the MO world – and to a lesser but still significant degree the Charedi world – the halacha gets ignored or reinterpreted.

    As above, if you look through the poskim you’ll find very few instances in which a man can be forced to give a get. And yet, BD routinely give these orders these days, on grounds that have almost no basis in halacha.

    I’ve never tracked down the source of this myself, but I remember a friend of mine who was taking one of these courses in practical rabbinics, and they had a get expert come down and instruct them in this area. He said they rely on some obscure t’shuva sefer which says that if the couple are living apart for a certain amount of time (possibly 18 months, but I don’t recall for certain) the husband can be forced to give a get.

  98. DF says:

    >”DF put his finger on what is probably a critical difference between those supporting use of the PNA and those opposed: whether it is proper/legitimate/moral/menschlichkeit (choose you word or substitute one) to use the giving of a get as leverage for other matters in disoute such as financial or visitation arrangements.”

    Joseph – Indeed, that is a fair summary of the arguments. The position of the opponents I described in public, is not often articualted in public, for reasons of prudence. But it is very real. Occasionally you will see this written in Hebrew

    It is important that prenup proponents understand this point. People see the secular court system as blatantly discriminatory towards the men. Throughout history, Jews have (rightly) NEVER felt themselves bounds by discriminatory laws or courts. Thus, use of the get is a natural outgrowth to level the playing field, and ONLY to level the playing field. In the most well known case, for example, [not to digress] all Aharon Friedman wants is to have equal custody rights. I’ve never heard, and dont think anyone would ever support witholding a get to extort money from an ex-wife. That would universally be condemned.

  99. DF says:

    I feel it importnat to observe that the discrimination men face in secular court [or the BDA] is not the only reason why prenups have generally been frowned upon. The bigger issue, of course, is simply that it’s a bad idea to enter marriage already contemplating, and preparing for, divorce aforethought. It has become easier than ever to divorce, and in some circles, practially fashionable. The LAST thing we should be doing is encouraging couples to think of divorce before they get married.

    [Lest someone claim that's what a kesubah is, that someone should think again. The Kesubah also covers death, and is thus more akin to an insurance policy than a prenup. Of course also, as mentioned, in no way can one compare today's society to the society in which kesubah's came into being.]

  100. Shalom Spira says:

    Emma (or R’ Emma – whichever title of honour is superior),
    Thank you very much for your insightful analysis. The case you make gives me a pit’chon peh to return to R. Bleich with a rejoinder against his extrapolation from the mishnah in Ketubot 101b to the case of enhanced daily maintenance for a wife who is alive.

    Dr. Levmore,
    Thank you, again, for the sources you provided. As you indicate,תקפו כהן (referenced by Shakh on Choshen Mishpat 25, se’if katan 17) represents a major fountain of knowledge on this issue, and definitely merits exploration. It will take me time to study this masterful treatise, so I will leave it as a “tzarikh iyun” what conclusions can be drawn from תקפו כהן.

    It seems to me that the claim that one can enter an agreement waiving his/her “kim li” rights in advance most closely approximates the gemara in Makkot 3b regarding one who participates in a sale with a stipulation that he/she waives in advance his/her rights to claim “ona’ah”, or one who borrows money with a stipulation that he/she waives in advance his/her rights to have the loan cancelled by Shemitah. In the case of ona’ah, one has essentially agreed on the sale/purchase price in advance, and has forgiven the ability to ever protest any subsequently discovered fraud. In the case of Shemitah, one has essentially agreed to repay the loan no matter what, even if Shemitah intervenes. The question, therefore, becomes: can the same be said regarding waiving “kim li” in advance? Or is it sn asmakhta for a person to say “I am entering this contract waiving in advance my ‘kim li’ rights”, since at the time the person does not anticipate ever needing to invoke ‘kim li’? [This might be different from the sale and the loan, where one knows with certainty in advance that the sale will stand and that the loan will be repaid.] To me this is “tzarikh iyun”, as well.

  101. emma says:

    “I’ve never heard, and dont think anyone would ever support witholding a get to extort money from an ex-wife. ”

    One person’s “leveling the playing field” is another’s extortion, i think.

    “People see the secular court system as blatantly discriminatory towards the men. ”

    some “people” yes, others no. I am not sure how this can be measured empirically. I believe older studies indicated that women tended to be worse off financially after divorce while men were better off or unchanged. I believe more recent studies suggest otherwise, although I am unaware of studies finding that women are better off than men. The point is, what is the basis for this belief? For every story of a man who got screwed in divorce court there is a woman who did too.
    “some people,” further, see the beis din system as blatantly discriminatory towards women. Is that the baseline by which everything less favorable towards men is judged, or are you appealing to general notions of fairness?

  102. Fotheringay-Phipps says:

    Emma: “One person’s “leveling the playing field” is another’s extortion, i think.”

    I agree with this. These terms refer to the same thing.

    I actually once spoke to the nephew of one of the most notorious get-withholders a few decades ago. He mostly became so notorious because his ex-FIL happened to own a media business, and he used it to trash his former SIL. The SIL was held out as being an extorter, as he was demanding money in exchange for the get. The nephew told me that this was in fact the case – he was in fact demanding money in exchange for the get. But what the public didn’t understand is that he had spent decades working in his FIL’s business, and had been promised an equity stake in exchange for his decades of labor. When his marriage turned sour, his FIL basically told him to get lost, and that he had to start again with nothing to show for his life’s labor. He was holding out for his rightful stake in the business.

    Now I don’t know the true facts of that case, and this was the guy’s nephew I was speaking to. But it’s certainly plausible.

    Which is one reason I think it’s a big mistake to go about demonstrating in front of people’s houses, or their relatives’ houses, and attempt to publically humiliate them into giving a get. You don’t know the true facts of the case, and you might be persecuting someone who is already downtrodden. You might come up after 120 thinking you’re going to get a big reward for your actions here, and find out instead that you need some serious time in Gehenim to pay for your sins.

    There’s a classic essay in the CI’s Emunah U’Bitachon about the need to clarify who the true rodef is and who the true nirdaf is. Sometimes someone who seems like the nirdaf can be the rodef, and vice versa.

    “I believe older studies indicated that women tended to be worse off financially after divorce while men were better off or unchanged. I believe more recent studies suggest otherwise, although I am unaware of studies finding that women are better off than men.”

    I’ve looked into that. All those studies are skewed (probably deliberately). Mainly by ignoring either social assistance (which divorced women are generally eligible for, and men are not) and/or child support or alimony payments (some ignored them altogether, and some counted them as income for the women but did not subtract them from the ex-husbands’ incomes).

    “The point is, what is the basis for this belief?”

    There are a lot of divorces, and you encounter many of them over the years. Look around and see who is maintaining the same family and way of life, and who has to move out of the neighborhood and live in a basement. Who maintains the normal family ties with children and who gets jerked around and is lucky to have some semblence of a relationship if his ex-wife deigns to tolerate it.

    But a lot depends on what your values are. I have this discussion with my wife all the time, and she thinks divorced men are a lot better off. But she bases that on her assumption that most fathers are not particularly interested in a relationship with their children (she claims the basis for my position is that I’m unusual in this regard), so she thinks ex-husbands are getting their “freedom” while their wives are left to raise the kids alone, and plus it’s easier for ex-husbands to remarry than ex-wives. I think she’s very wrong of course. Though I agree with her about a very short term marriage that doesn’t involve children.

    But if you want some more objective evidence, look at who is initiating all these divorces. 75% – 80% are initiated by women. They are not initiating the vast majority of divorces because they get a raw deal in courts or BD. There are many many men who would get divorced, but when they contemplate what life would be like post-divorce, they suck it up and take it. There are such women too, but much fewer.

    [BTW, FWIW, I happen to know of an "unofficial engagement" that just broke up now because of wrangling over a prenup. Not the sort of prenup that is being discussed here, though. The boy's family was extremely wealthy, and the father had put some of his assets in the boy's name (among others) and he wanted to a prenup to ensure that the girl couldn't be granted some of them in a divorce. However, the terms that he wanted were so extreme that the girl's family balked. They wrangled a bit, and eventually the boy's family decided that the girl's family were not ba'alei midos, and they broke it off. If you ask me, both sides were probably misguided, because any extreme prenup terms were likely to be voided by a judge anyway.]

  103. Hirhurim says:

    F-P: Based on your description, that case IS extortion. He was messed over financially, which sometimes happens in business, and tried to extract revenge by refusing to give a get. In my opinion, he deserved to be denounced in the press.

  104. Fotheringay-Phipps says:

    Two guys have a partnership. One guy takes 80% of the assets and demands that the other guy agree to terminate the partnership on that basis. The other guys insists he won’t agree unless it’s 50/50. Is that extortion?

    It’s hard to understand what you’re saying (unless you’re trying to portray the woman and her father as completely separate entities – if so you’re being inconsistent – http://torahmusings.com/2012/06/announcement-ora-rally-in-flatbus/).

  105. emma says:

    It seems to me the ethical question of holding a woman hostage to get money from her family is different than using a get as leverage against _her_. I agree that this has at least potential implications for whom it is ethical to publicly pressure as well.

    The underlying point that parties usually have some colorable reason why they “deserve” what they are trying to leverage/shakedown/extort out of someone else stands. In most cases the distinction between “extortion” and “levelling the playing fied” is whose side you are on.

  106. aiwac says:

    “I believe older studies indicated that women tended to be worse off financially after divorce while men were better off or unchanged”

    The issue isn’t “who’s better off” overall but how equitable was the property and income distributions (alimony, child support and custody). In this, family law tends to very heavily biased in favor of the woman.

    Pre-divorce spurious accusations of domestic abuse in particular are rampant, at least here in Israel (spurious because no evidence is provided for them and they are never tried in a court of law; it’s simply a bargaining chip).

    The fact that women still end up worse off in spite of this favoritism should be a deterrent for divorce, but unfortunately it is not.

    “For every story of a man who got screwed in divorce court there is a woman who did too”

    You can back up this 50:50 claim or are you trying to shut down the discussion?

    ‘“some people,” further, see the beis din system as blatantly discriminatory towards women’

    Which is why in Israel, women tend to go to family court, which is biased in its favor, while men go to the BD.

    “In most cases the distinction between “extortion” and “levelling the playing fied” is whose side you are on”

    And you are clearly on the side of women, under all circumstances. I prefer to call injustices out regardless of gender.

  107. Lawrence Kaplan says:

    FP: I simply do not understand you. Let us grant you the facts of the case. Srill, rhe partnership of the SIL was with his FIL. His quarrel was with him. Even if the FIL was depriving his SIL of his fare share, how dare the SIL punish his wife as a way of getting to his FIL? Your language is revealing, The SIL refuses to agree to terminate his partnership. Wihch partnership? His marriage with his wife or his financial partnership with his FIL? Evidently he– and you?– viewed his marriage with his wife as just a part of his partnership with his FIL. Really a nice guy! And this is the best example you can come up with?! I’m with Gil here.

  108. emma says:

    aiwac, i am puzzled by the tone and substance of your comment.

    If you read a bit more carefully you will note that i do not accept the premise that women are actually worse off than men after divorce – i just note that people used to say that. I also don’t accept the premise that there is a wild bias against men in american divorce. I was honestly asking for the source of the latter assertion.

    My comment on “for every man” was a flippant way of saying “the plural of anecdotes is not data” – not a statistical claim (I can’t believe i am even explaining that). Other than anecdotal impressions, F-P provided support for his claim via who initiates divorce, which is highly relevant though I think not dispositive since there may be other things at work. (For example, men may be more likely to stay married “for the kids” if they are less likely – either by choice or by bias of the legal system or by fair operation of a legal system that awards custody to the primary caregiver, e.g. – to live with kids after divorce?) Also curious about the stats on initiation in the frum world.

    To me the (anecdotal) data are consistent with the hypothesis that divorce is bad for everyone. If men think their male friends are worse off, and women think their female friends are worse off, maybe they are both right, and everyone is worse off? There is real empirical work to be done here – and again, if you are aware of it please do share…

    I believe (having read some third hand article) that the divorce rate went down during the recession, indicating that economic disincentives do in fact operate, contra your assertion.

    I have no idea why you think I am “clearly” on the side of the woman under “all” circumstances. All I did was ask for data on sociological trends.

  109. Fotheringay-Phipps says:

    The marriage and the financial partnership and the divorce are all intertwined, and the ex-wife and her father are connected financially as well.

    This guy didn’t work for his FIL for decades by coincidence. He worked for him because he was his FIL. And he didn’t get tossed out on his ear by coincidence either. He was sacked and deprived of his share because the marriage came apart.

    And the same goes for the ex and her father. It’s not like she was minding her own business when through nothing connected to her suddenly her father got it into his head to toss out her ex. These matters are family disputes.

    Everyone – including Gil Student, as noted – seems to understand this full well when they advocate demonstrating outside the home of ex-husbands’ uncles or mothers. Somehow the ex-wife herself is innocent and pure, and unconnected to actions of her parents. That’s the ticket.

    I’m not sure what you mean about the best I could come up with. That is by no means the most one sided divorce I am familiar with. But it’s a striking example of a case where the public perception of the facts could be very different than what actually happened. I had read about the case for years before once I asked the nephew if he was by any chance related to so and so, and the other side of the story came out.

    My point with this was to illustrate that outsiders frequently have a very flawed understanding of the facts of a case and the dynamics of a situation, hence caution is warranted before taking action based on the claims of activists or a general predisposition to see things a certain way.

  110. Fotheringay-Phipps says:

    Emma,

    The 75%-80% numbers that I tossed out were for the frum world. These are not exact numbers, of course, but it’s the overwhelming majority.

    Your point about “the kids” is accurate but moot. Who gets to maintain a strong relationship with their children is a huge prize, and you shouldn’t be waving it off as something that is off the table.

  111. Joseph Kaplan says:

    I’m with my brother here. Assuming that the facts you say are true (and that’s a big assumption), but even if they are what he did is still despicable, He thinks he has a financial claim against the FIL? So let him sue the FIL, in a bet din or a court. And each side will bring in their evidence and their witnesses and the court will render a verdict and if he wins he’ll get his money. That how decent and civilized people settle their disputes. Doing this is no better than getting some thugs and beating up the FIL until he pays.

    But I agree with F-P on one thing; it is a “striking example” that highlights one crucial difference between the two sides; those who think it’s right to use a get as leverage and those who believe that someone who does so deserves to be despised and publicly humiliated until he acts like a decent human being.

  112. emma says:

    it is a huge prize (for most) but results skewed by gender are not necessarily proof of a biased system. meaning, if by whatever standard custody is awarded women are actually the better choice more often than not (i am postulating this for the sake of argument, though, self-interestedly, i also believe it to be true) then it is not “unfair” or evidence of bias when they get the kids. i.e., a system/society in which (1) women are more likely to stay home with kids while men work and (2) the partner who stays home is more likely to get the kids “Favors” women re: custody, but that is neither here nor there re: whether it is just.

  113. Lawrence Kaplan says:

    FP: I am not that naive. I understand full well thar the SIL only was in partnership with his FIL because of the family connection. And I understand that the FIL sacked his SIL because of the marriage breakdown. Still, the bottom line is that the claim of the SIL was against the FIL, and he made his ex-wife suffer to force him give him what he, the SIL, thought he was entitled to. That is not, as my brother pointed out, how civilized people settle disputes.

  114. DF says:

    “One person’s “leveling the playing field” is another’s extortion, i think.”

    I dont think so. That doesnt make sense to me. The one means putting parties on an equal footing. Right now, in secular court, they are not. They never are. Men can be forced to pay child support even for children that arent theirs. For more than 100 years there was a “tender years” doctrine that created the presumption that children under 13 should stay with their mother. That doctrine may be offically non-recognized in some jurisdcitions (not all) but it certainly is alive and well in the minds of the Judges. And why should that surpise you? Laws are created and modified in response to society. Women have paid lobbyist groups, men do not.

    You cannot credibly claim the men are treated as fairly by the courts as the women. Do your homework. And that being the case, its perfectly understandable why men use their leverage. She uses the courts, he uses the get. I’d like someone to explain why what’s good for the gander is not good for the goose.

  115. DF says:

    “Doing this is no better than getting some thugs and beating up the FIL until he pays.”

    And yet as part of hilchos gittin we have the concept of kofin oso ad sheyomar rotzeh ani. Joseph, in response to your statement that this is not how civilized people act, many would say that going to secular court is not how orthodox jews act.

  116. Joseph Kaplan says:

    “many would say that going to secular court is not how orthodox jews act.”

    That’s why I added bet din (if the SIL feels that way). There would be more to discuss if (a) the SIL, in other situations, used a bet din rather than a secular court, (b) he summoned his ex-FIL to a bet din to resolve the monetary dispute, and (c) the ex-FIL refused to go to a bet din. I’m not saying he’d be right even under those circumstances but it would be a harder case. This case, though, is simple; according to HIS facts (which very well might not be true or completely true) he’s a sleezeball.

    As to your view of American divorce law, well, justice is not perfect and neither are the courts, but I don’t think your view of divorce law in America is accurate. And that’s one reason that we’re not dealing with gooses and ganders here.

  117. DF says:

    I dont know anything about the case FP mentioned, I was not alluding to it.

    Jospeh, we can disagree over whether or not the courts are fair to men or not, but I’m telling you as FACT that a great many men say they are. [By contrast, I rarely if ever hear women saying otherwise.] You can claim otherwise, but you’d have a hard time convincing all these people that they’re wrong. And that is one reason there is so much opposition to prenups. Another reason comonly observed is simply the wrong mindset a prenup brings to a marraige. And the third reason I mentioned, which I dont see discussed enough, is the breakups and shrinking pool of available shidduchim promoting prenups inevitably brings.

  118. Fotheringay-Phipps says:

    JK: “He thinks he has a financial claim against the FIL? So let him sue the FIL, in a bet din or a court. And each side will bring in their evidence and their witnesses and the court will render a verdict and if he wins he’ll get his money. That how decent and civilized people settle their disputes. Doing this is no better than getting some thugs and beating up the FIL until he pays.”

    I don’t know if it was practical. I’m guessing here, but in general a business relationship between a FIL & SIL is unlikely to have been documented in a manner that would stand up in court. That’s been my experience (& my practice, in my own business dealings with close family :) ).

    “But I agree with F-P on one thing; it is a “striking example” that highlights one crucial difference between the two sides; those who think it’s right to use a get as leverage and those who believe that someone who does so deserves to be despised and publicly humiliated until he acts like a decent human being”

    OK. Again, your attitude begins with the notion that receipt of a get is a fundamental right. That attitude is not contained in, or derived from, the Torah.

    LK: “Still, the bottom line is that the claim of the SIL was against the FIL, and he made his ex-wife suffer to force him give him what he, the SIL, thought he was entitled to.”

    Understood. I am not familiar with the details of this case at that level – I had this one conversation with the guy’s nephew. Possibly the ex-wife was supportive of her ex-husband’s claim. However, in my experience in general, these divorce situations are family battles. (As noted repeatedly and not addressed, get activists certainly treat the families of get refusers as being responsible for them.)

    And again, I’m not saying the guy was right. My original point was in response to the statement that one person’s extortion was the other person’s leverage, and I agreed, noting that the devil is in the details, and that the picture can change considerably. Regardless of whether you think this guy was unjustified in holding up his wife over a dispute with his FIL, there’s certainly some difference in holding up his wife in order to simply extort money from his FIL, versus holding up his wife in order to claim his rightful share of the family business. So the general point is again that if you don’t have actual facts and details, you could be acting based on a very skewed and incorrect picture, and be persecuting the victim, regardless of whether that was the case in this particular instance.

    Emma: “it is a huge prize (for most) but results skewed by gender are not necessarily proof of a biased system. meaning, if by whatever standard custody is awarded women are actually the better choice more often than not (I am postulating this for the sake of argument, though, self-interestedly, i also believe it to be true) then it is not “unfair” or evidence of bias when they get the kids. i.e., a system/society in which (1) women are more likely to stay home with kids while men work and (2) the partner who stays home is more likely to get the kids “Favors” women re: custody, but that is neither here nor there re: whether it is just.”

    I don’t disagree with you here. The women have a justified advantage in terms of maintaining the children. If you have one spouse who is a full time worker and the other works part time if at all and focuses on child rearing, it’s not logical or practical to insist on equal child custody.

    However, that doesn’t mean it makes sense to ignore this when considering the settlement as a whole. To insist that ex-wives have everything else on equal terms after they’ve already won the biggest prize. When you do that, then on the whole, the husband comes out very much on the losing end. In any event, even if you do think that is justified, I don’t think you have much complaint if it doesn’t work out that way in a given instance.

    Plus, the other issues are lack of input into major child raising decisions. (E.g. when the ex-wife adopts a new lifestyle after the divorce and takes the kids along with her, with the ex-husband powerless to stop it. My mother tells me that RMK’s stance on divorces was based on bitterness at his having been victimized in this manner.) And virtually no enforcement of the ex-wife’s ostensible responsibilities, while ex-husbands are routinely tossed in jail for being a few dollars short in their payments. And so on.

    DF: “For more than 100 years there was a “tender years” doctrine that created the presumption that children under 13 should stay with their mother.”

    The Torah also has a “tender years” doctrine. Children until 6 stay with the mother. (This age also has halachic ramifications for hilchos techum.) After that, it’s boys with the father and girls with the mother.

  119. MiMedinat HaYam says:

    i’m surprised no one figured out who this case was. actually, the SIL won in court a derermination that he was entitled to a minority share of the media business.

    the problem was the FIL didnt want him as a (even a minority)partner, and wouldnt accept any valuation to buy him out. (it was several $million)

    no bet din wanted to touch the case, cause they knew the FIL would not accept an adverse ruling, even with a shtar berurin. (the FIL regularly uses his media to denounce various ppl, rabbonim, etc. agudah is verboten in the paper, but yu is, surprisingly accepted. all his grandchildren went there. yet he had a following.)

    BTW, the FIL did this to the previous SIL, too. the second was smart enough to get a writing, but didnt include a method of valuation. (pre nup written too quickly, too informally. somewhat similar to BDA pre nup, that is too informal.)

  120. Joseph Kaplan says:

    I’m sure everyone’s figured it out. Just no need to use names.

  121. Lawrence Kaplan says:

    FP: Actually one can claim that you are being inconsistent in precisely the reverse manner as, according to your claim, Gil is being inconsistent.

  122. Fotheringay-Phipps says:

    One can claim all sorts of things. However, my. Position is contradiction-proof. My claim is that it depends on the details of each specific case, which we don’t know.

    The contradictions are by those who are making broad rules that can be – and are – applied to each and every case.

  123. Joseph Kaplan says:

    “there’s certainly some difference in holding up his wife in order to simply extort money from his FIL, versus holding up his wife in order to claim his rightful share of the family business.”

    Not the way I see it. As I have noted before, this is a fundamental point of dispute between the two sides.

  124. MiMedinat HaYam says:

    “was one celebrated case in which a judge denied it” ( = a civil divorce).

    according to those who claim if there is a civil, a get is required, would they require a get in that case?

    (actually, the husband oppposed the civil, arguing there was no grounds for the divorce; a trial had to be held, and the (ex) wife demanded a jury trial, even though it was a foregone conclusion a judge would order a divorce, the only issue was the terms of the divorce. in the end, the jury said no grounds, so there was no divorce. a settlement (and get) came years later, and the wife got practically nothing.)

 
 

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