Prenups V – Trei Gadya, Trei Gadya: Part One - Is the Shunra Guarding the Goat-pen?

Author's note - Please see the previous posts about the BDA Prenuptial Agreements - Part 1 , Part 2, Part 3, Part 4.

In this week’s Parsha, Rivka Imenu instructs Yaakov to go to the goat-pen and take “for me” two kid goats. Rashi tells us that Rivka was instructing Yaakov to take what was rightfully hers to take “...for this is what Yitzchok wrote to her in her Ketuba, she may take two kid goats each day.”

Yes, I took that last written test in the Toen Rabbani cycle two days after Rosh HaShannah. It takes quite a while to get the results of one of these tests. They usually come out about a week before the next test on the cycle – close to Chanukah. I won’t know if I passed the test until then but I have a good feeling about it.

In the meanwhile I am prepping myself toward this line of work and am learning new things all the time. And the more I look into the concept of the BDA prenups, the more concerned I am.

For starters, it’s been a full year since I opened this series. The results of my previous analyses indicated that the language of the document, at best, needs at least two corrections. None have been made.

One language problem is that the term “and I recite that I shall be deemed to have repeated this waiver at the time of the wedding” is useless. This is because the groom has no intention for the waiver to take effect at the time of the wedding, only at the time of the separation. So this is what the contract must say. Even after this, it is not certain that the waiver takes effect and it is almost certainly revocable until the time of separation. Details HERE.

The second language problem is that the clause about “through the Jewish law mechanism of Kim Li” in the last paragraph is likewise faulty. If anything, it must say: “through the Jewish law mechanism of Kol Tnai she’b’mammon kayam”.  Details HERE.

So a year has passed and I have seen no changes. I know for certain that my posts have reached the eyes of some of the chief architects and promoters of this document and it would surprise me to learn that it hasn’t reached the attention of Rabbi Willig, Shlita. Although I can understand a dissenting position on the first correction, there is absolutely no room for dispute on the second correction.

The fact that the document continues to remain uncorrected tells me that the BDA does not take these issues seriously. I think this undermines their integrity. The impression I get is that they maintain that their document has been tried and tested and endorsed by some prominent Gedolim so they can ignore all the detractors. It doesn’t matter if someone brings up issues that haven’t been addressed – if it ain’t fixed, don’t break it.

What frightens me more than their complacence is their claim in a 2013 resolution that “the BDA prenuptial agreement maintains a 100% success rate in preventing get-refusal in the context of a divorce following marriages where it was properly signed and notarized”. Firstly, this sounds like propaganda. How can they verify this "statistic" to the public?

Secondly, there are two scenarios where, even according to the BDA (and Reb Shalom Spira’s prenup, as well) the prenup would not be effective. One is a case where the husband is flat broke, and more likely in debt, and he doesn’t really care about how much money he needs to pay his wife for mezonos. He doesn’t have it and he won’t pay it. Let her hair turn grey.

The second is the case of moredes - a rebellious wife - where the woman is not entitled to mezonos. It won't matter how large is the support allowance; she is not entitled to it. I intend to elaborate on the moredes issue in Part Two of this post.

Now, Reb Michael J. Broyde, in a guest blog post in Emes V’Emunah on August  20, 2017 addressed the moredes scenario. He had two responses. His first response is to promote the controversial Halachic position that even though a moredes loses her rights to support, if the husband withholds the get, he is still liable for the support. There are numerous problems with this position that I hope to discuss in Part Two.

The other response is that, “since the BDA Prenup is an arbitration agreement, the bet din panel hearing this matter could decide not to order the payments…” This says that they have the absolute power to decide whether or not the wife is a moredes. 

What this means is that the “husband-to-be” is entrusting the moredes status into the hands of the BDA Beis Din who have a vested interest in somehow making sure the woman is not ruled a moredes if only to keep up their flawless track record. This may be so even where, under more objective conditions, a typical Beis Din would rule that she is a moredes. Bear in mind that for the mezonos part of this contract, the basic Halacha is that any questionable case (sefeika d'dina) has to be ruled in the payer's - the husband's - favor. It is very questionable to say that the bizarre kim li clause at the end of the agreement overrides this privilege.

The shunra (cat) is watching the goat-pen.

For now, I only want to comment that, in light of these limitations, can the RCA really claim the PNA to be 100% effective? You mean in 26 years they never had to deal with a deadbeat husband? In all that time there was never a bona fide moredes? Or, are they fudging the numbers the same way the unemployment office does – if you simply gave up on looking for a job, you are not called “unemployed” so you don’t count for the statistics; here, too, if she is disqualified for being a moredes or if the husband is a deadbeat, it was not meant to work so it doesn’t count for the statistics?

100% is just too “neat and clean”; like the Beis Din that votes 23-0 to convict (Rambam Sanhedrin 9:1). Clearly, the BDA is not an objective Beis Din (we already established this with the "kim li" clause), and this is very troubling.

However, time wounds all heals. The claim of 100% was made in a resolution dated 2013. It’s been five years since that time, and perhaps their record is not so impeccable. So, what if the statistic is no longer 100%, would they have the integrity to tell us? Or do they want us to think that what they claimed in 2013 is in effect forever even if it isn’t?

My experience is that when conditions change away from one’s preferred position, he doesn’t bother to update his followers. (Like on all those Jewish sex offender lists. When a person who was listed as “Arrested” gets fully acquitted, somehow this development is never noted on the list. More on this in upcoming posts.)  In fact, the RCA added another resolution about prenups in 2016. This is the one about mandating their Rabbis to require them. For some strange reason the 100% claim is notably absent. What does this say to me?

While we are discussing updating things and the 2016 resolution, there is another serious issue that, to date, nobody has brought up. Endorsements.

To understand the problem, I need to go back to my tale about the Eiruv in “Hammerstone Hills”. I wrote that one of the supporting Rabbanim rescinded his support about 2 or 3 years after the eiruv was constructed. He gave a public speech in his shul to explain why he rescinded and he gave numerous reasons. 

The first reason was that he initially supported the eiruv because he knew that it could and would be erected according to the Halachic standards of Rav Moshe Feinstein, ZT”L. However, after the construction, when certain defects and shailos came up, instead of making the necessary repairs, the “committee” used some lower standard bidiavad kulos to consider the eiruv valid. What came out was that, although the eiruv was built in accordance to the standards of Rav Moshe, it was not being maintained at the standards of Rav Moshe.  It’s like when a kosher food product changes its formula and loses its hechsher or the mashgiach retires and isn’t replaced. If there is no Kashrut Alert, it stays “Kosher” forever.

His second issue was that they had plans to unite this eiruv with new eiruvim being built for adjacent neighborhoods. Those eiruvim were not planned to comply with the standards of Rav Moshe even from the get-go. This Rabbi was afraid that the tzibur will use the reputation of the first, more proper eiruv, along with his endorsement, to falsely imply that the other eiruvim were just as kosher (and that he endorses them). This is the old “Kosher by association” trick where one product or restaurant/bakery is certified kosher and then the owner opens a second restaurant or bakery with the same logo but no such hechsher. People will think the baal-hamachshir on the first establishment also endorses the second one.

The 2016 resolution that mandates all RCA Rabbis to require a PNA for every wedding they officiate at, or refuse to officiate, is very scary. As it is, the PNA is treading on thin ice in the area of coercion and many are those who invalidate it for this reason. But even those who do not – and we know that Rav Asher Zelig Weiss’s letter of endorsement only addressed the issue of coercion – may feel that this resolution crosses the line. It certainly invokes the words of the Rema in Even HaEzer 134:4 who stated that bidiavad, if the husband gives a get while under the influence of a self-imposed penalty, the get is still valid “since initially he was not compelled to do this…”. The obvious implication is that if the fellow was compelled to accept this fine, it is a forced get by all opinions. In line with this remark in the Rema, even though we are now dealing with mezonos and not a fine, for one to be compelled to accept upon himself an exaggerated amount of mezonos is very problematic to say the least.

But wait! This PNA is endorsed by such great men as Rav Zalman Nechemiah Goldberg, Rav Ovadiah Yosef and (supposedly) Rav Asher Zelig Weiss, no?

Well, it is definitely true that Rav ZN Goldberg, Shlita, Rav Ovadiah Yosef, ZT”L, Rav Chaim Zimbalist and Rav AZ  Weiss, Shlita endorse the concept of the PNA. Further, the basic language of the agreement, more or less a copy of the Toras Gittin, was endorsed by Rav ZN Goldberg, Rav Ovadiah and three others back in 1992. Rav Asher Zelig Weiss wrote an undated letter where he outlined the mechanics of reasonable mezonos and ruled that there is no problem of coercion in this case. He clearly implies that if the allowance for mezonos is not reasonable, we are in trouble. We have no idea from his writing at what point the mezonos are considered unreasonable. Of course, we can always ask him (AMV”Sh).

However, there have been a few changes since 1992. Did anybody endorse those? There was a strong resolution in 2006, another in 2013 and the strongest yet in 2016. Each one takes the question of get meuseh up one notch. Did any Gadol endorse any of these resolutions?

Other Halachic issues were raised such as the issue of asmachta raised by Harav J.D. Bleich, Shlita. Of course there is the system of “meachshav” and Beis Din chashuv but there are other issues. Rav Shalom Spira in his essay mentions opinions that hold that meachshav and Beis Din chashuv only apply if there is a single unknown condition. But when there are multiple unknown conditions, even these mechanisms do not help.

Beyond this is a similar asmachta issue that nobody has yet brought up (you heard it from me first): There is a question if one can make a binding undefined obligation (התחייבות לדבר שאין בו קצבה). If one cannot, this would be a big problem for the BDA prenup. Of course, it is no problem because only the Rambam holds it is not binding and all other rishonim say it is binding, and we go with the majority (kim li is still an issue). The Mechaber tells us this in three places in Choshen Mishpat.

But wait! Comes the SM”A in one of those places (CM 131:13 sk 25) and says that this is only when the obligation is unconditional. But if it depends on a condition which makes it an asmachta together with the undefined obligation, then even where an asmachta would normally work (like meachshav or BD chashuv), the rishonim will agree with the Rambam that with this double whammy, there is no binding obligation!

Did Rav ZN Goldberg and Rav Ovadiah and Rav AZ Weiss address these issues and give their endorsement in the face of them?

And, finally, I am back to where I began this post. In the first three parts of this series, I raised the issue of flaws in the waiver of the wife’s earnings. I summarized them earlier. Rav Willig, Shlita, in his famous shiur conceded that this waiver is a "very sticky" issue. He mentioned that Rav ZN Goldberg addressed the issue of a hodaas baal din on a future event (exceedingly novel and controversial). But the issues I raised are different ones. There is no indication that Rav ZN Goldberg addressed them. The BDA doesn’t want to acknowledge them (they have a lot on their plate with this PNA). But they do not have any outside Gedolim who examined these issues and were able to dismiss them.

We like to think that all major poskim are flawless geniuses who, without fail, take all Halachic angles into account whenever they rule on an issue, and so, all of these issues are covered. The truth is, they only deal with the point of the question that is being asked. Very often, they do indeed bring up collateral issues but not always. They are all very human and don’t think of everything.

It looks to me that the 1992 endorsement certificate is long expired but the BDA is holding it on life support.

I have spent this entire post complaining about corrections, changes and updates that needed to be made but were not. I want to comment now on one change that was made. 

When I examined the BDA PNA a year ago to analyze them, there were two versions: a regular one for a unilateral commitment by the "husband-to-be" and a reciprocal  bi-lateral one which included a commitment by the "wife-to-be" to adhere to the rulings of the BDA court under penalty of a fine to her husband (women can pay fines to their husbands). The reciprocal agreement was more balanced and, consequently, more practical. The financial risks to the husband stay the same, but since there are also financial risks to the wife, it is less likely to be abused. As a bonus, this version serves as a sop to reassure mankind that this isn't all a liberal feminist plot to artificially empower the women in divorce cases. 

When I checked the forms on the website of late to confirm that the language had not been changed I was astounded to discover that the reciprocal version is nowhere to be found. It vanished!

Where did it go - and why?

The lack of this version (especially after it was initially in circulation) now presents the opposite effect. It confirms to mankind that this document is indeed a liberal feminist instrument. With all its other problems, this does not help matters.

Believe it or not, all the above was the intro for what I really wanted to write in this post. But, it’s getting late and I can only make a post so long. I have discovered that once in a while there are people who actually read them.

So I still haven’t let on what I want to discuss now and what it has to do with the Rashi about Rivka and the two kid goats. But, let that be its own hint and we will leave it for the next post (I hope).

In the next post, I hope to make some “seder”…