Prenups VI – Midway through the Seder

Author's note - Please see my previous post HERE.

As I ended my last post, I promised to make some “seder”. My intention at that point was to serve up the other half of the Trei Gadya post (the afikoman?). But I am not going to complete that post just now. I need to make a slight detour from my initial flight plan.

The reason for this is that, in the interim since my last post, I received some behind-the-scenes feedback from a few sources. Based on some of this information it behooves me to make some corrections and clarifications on things that I wrote. So I will be making some “seder” but not in the way I originally planned. I hope to get back to the Trei Gadya post right after this one.

One of these sources corresponded to me under a pledge of confidence, so I cannot reveal a lot of what I learned but there are some side points that I do need to reveal since they impact upon my previous post.

The first of these side points is that this person cleared up a gross misconception that I had until this point. I believe the bulk of American Orthodox Jews share this misconception with me. It concerns the relationship between the BDA (Beth Din of America) and the RCA (Rabbinical Council of America). 

I assumed that the RCA is a parent body and the BDA is the judicial arm of the RCA. In effect, the BDA is a subsidiary of the RCA and, as such, the RCA governs the BDA. My confidential correspondent told me that this is not so; it is not close to a parent-child relationship. They are two separate organizations. It’s more like two cousins with the same last name. 

This is not a total misconception. They did begin as a parent-child relationship. The RCA established the BDA. It says so right on their website:

The Beth Din of America was founded in 1960 by the Rabbinical Council of America. In 1994, the Beth Din became an autonomous organization, headed by an independent board of directors.

So, many of us are aware of the “founded” part not aware of the “autonomous” part that happened 34 years later. Still and all, they are both offspring of the same grandfather – REITS (Yeshiva University) – and, perhaps, most of the BDA members have RCA membership as well. Nevertheless, they are currently two independent bodies and one does not govern the other.

In terms of what I have written, there are two major ramifications:

·        The 2013 resolution that claimed that the BDA prenup (referred to by name) is 100% effective, was stated by the RCA and not the BDA. The BDA never made such a claim in writing. (I suppose parents like to brag about their "children".)

·         The 2016 resolution that requires RCA Rabbis to compel a prenuptial agreement was likewise put out by the RCA and not the BDA. Truth be told, after they laud the greatness of the BDA prenup, they say in their resolution to use any kind of prenup.

Despite this, it is very hard to say that the BDA does not carry responsibility for these two matters. After all, the two organizations are cousins who share the same last name and are both offshoots of RIETS and they are affiliated and I am not the only person who thinks they are one body (by far). (It's an honest mistake.) Moreover, the BDA prenup is referenced by name in both resolutions. So if they (the BDA) are not backing up these two resolutions, they have an obligation to disassociate themselves from them, just like Rabbi Rosencrantz in the Eiruv saga.

Another side point is that it seems that the state of California mandates reciprocity in all prenuptial agreements. This is what distinguishes the BDA “California” agreement from the Standard one. Hence, BDA no longer displays a “Reciprocal” agreement since this is identical to the California one. If a couple wishes, they can use the California agreement in any other state but they cannot use the Standard version in California. (Advice, if you live in California, put your prenup and your real Ketuba in a fire-proof box.)

The last side point that emerged from our correspondence was that it is possible that I have been living away from America for far too long (thank G-d), and I am not up-to-date with the current situation in the diaspora. Here in Eretz Yisroel, things are a lot simpler because we have a Rabbanut Beis Din which is not an arbitration panel, but rather a state empowered judicial body. Hence, it has all of the jurisdiction of the secular court. It has the power to summon spouses to appear even if they did not sign any type of agreement. They can also issue a tzav ikuv (no-exit order). Since we live in a very small state and a police state, at that, there is nowhere to run.

A Beis Din in the diaspora, even if it calls itself THE Beth Din of America, has no such power. Apparently, the primary function of the prenup is to force the couple to show up to Beis Din. Once they are there, BD can really make binding mezonos requirements even without a prenup. Since the BDA is merely an arbitration panel, it has no jurisdiction to force anybody to show up unless they have a previously signed arbitration agreement to do so. So, in America, it is a lot harder to get a husband who has gone OTD and abandoned his wife for an Italian shiksa (or a Mexican one for the California version) to show up to Beis Din than it is here in E”Y. (Besides, there is an acute shortage of qualified shiksas here in E”Y. I know, I looked – okay, just kidding.) This is why it is so important to have an arbitration agreement up front. The “Halachic concerns” can be addressed in Beis Din after they show up.

End of side notes and corrections.

The picture that emerged from all the feedback was as follows. Marital discord, like most things in this world, works on a spectrum of extremes and all the points in between. At one end of the spectrum is the scenario where the husband is the “shtinker” and the wife is a saint in comparison. This is the case I was referring to above where the husband abandons his family and possibly all of Yiddishkeit. He has his needs met by other women (let’s hope they are women) and is not interested in revitalizing his social status in the Orthodox community. In short, he has no impetus to give his wife a get.

When it comes to this type of marital discord that winds up in a courtroom (or Beis Din), it is certain that the wife is fully entitled to, as HRHG Rav Asher Weiss says, “reasonable support”. Moreover, in this case, it is very easy to dismiss the issue of get meuseh. This is because the husband is voluntarily neglecting his obligations toward his wife (a mored) and is megaleh daas that he has no interest in continuing his marriage to her. So, even if he is not very cooperative about a get, as long as he is not forced at gunpoint, zapped by an electric cattle prod, or hung out of a six-story window by his ankles, any indirect pressure can be seen as “rotzeh ani”.
[Update - After rechecking even HaEzer 77:1, it seems that there is no din of get meuseh and, depending on how we define the term "kofim", it may even be permissible to threaten him with a gun and zap him with a cattle prod!]

The other end of the spectrum is the exact opposite. This is the scenario where the wife is the “shtinker” and the husband is the saint in comparison. She may be sick of wifehood or of his corny jokes and leaving the seat up and is just not into him and very possibly into somebody else and she wants out. Especially if he is struggling to make a comfortable living (and the other guy who doesn’t have to pay tuition for five kids is loaded). In short, she is a moredes. He is willing to do anything to make things good. He doesn’t want to give her up. In some cases, she is the one who refuses to go to the mikveh and goes OTD.

In this scenario, the wife-to-was is technically not entitled to mezonos and any undue pressure put upon a husband to divorce a wife that he sincerely wants to keep can and should be construed as a get meuseh.

Of course, as noted, there are all kinds of scenarios in between, but these two extremes cause a tremendous conflict in the rationality and legitimacy of the BDA or any other PNA. I believe that this is the crux of the controversy and I will need to get back to this dichotomy when we really do reach the “afikoman”.

But it is not yet chaztos and we are not there yet. I still need to partake in a little bit of Shulchan Aruch.