Author's note - If you are new to the blog or this series, it is recommended to see some of the earlier posts. The opening post of the Prenups series can be seen HERE. The first two posts of the "Trei Gadya" section can be seen at: Part 1 and Part 2. The entire Prenups series can be seen HERE.
Klal Yisrael is currently mourning the recent passing of
an extraordinary Gadol and posek, HRHG Zalman Nechemiah Goldberg, ZT”L. He was
the son-in-law of HRHG Shlomo Zalman Auerbach, ZT”L and, like his illustrious
father-in-law, he was known to paskin with humility, flexibility and
sensitivity. Yehi zichro baruch.
Personally, I was not zocheh to meet him or to interact
with him, but I referenced him in some previous posts regarding his role as an
advocate for utilizing prenuptial agreements to reduce cases of agunot and get
refusal. I noted that, back in 1992, he was the actual author of the initial
draft of the Halachic terms and conditions that eventually became the BDA (Beth
Din of America) PNA (Prenuptial Agreement).
In these previous posts we scrutinized the BDA Prenup to
bring it up to date and we claimed that it carries quite a bit of baggage. In
my opinion, there is way too much baggage to make it a viable instrument to
solve the problem of recalcitrance in divorce cases.
It’s been a while since I wrote about this so it’s best
to summarize the previous posts.
How is the BDA prenup supposed to work?
The idea is to create some kind of financial pressure to
entice the ex-husband-to-be to give his wife a prompt get which will not be deemed
to be coercion which would invalidate the get. For this, we need to find
“kosher” financial pressure. Many authorities maintain that a monetary penalty
for delaying a get is not acceptable. But, suppose we create a monetary penalty
for staying married?
One individual 19th century posek – Toras Gittin – suggested this approach based on the husband’s obligation for spousal
support. Based on his suggestion, Rabbi Mordechai Willig, Shlita, with the
assistance of HRHG ZN Goldberg, ZT”L, fashioned what is now the current BDA
prenup.
Before I explain how it works, let’s do a quick overview
on “spousal support” obligations.
A husband is normally responsible for reasonable support
for his wife, food, clothing and shelter. This is called mezonos.
When the couple lives together in harmony these basic
needs are covered under standard living conditions that follow the principle of
“two can live as cheaply as one”. Suppose a middle-class man needs $3000 per
month to provide himself with a roof for his head, food, clothes, appliances
(Wi-Fi), and other essentials. Maybe another $1000 per month for a car. In most
cases, to support an additional live-in partner, i.e. wife, at the same
standard, doesn’t cost more than an additional $1000 a month. Maybe even less!
Especially if they share the car. They’ll do fine as a couple for $5000 per
month.
Thus, it can be argued that standard middle-class mezonos
for a wife is $1000. He is anyway spending $4000 for himself with the car.
However, when two people who might be living together are
each living on their own, each one needs the same $3000 per month for separate living
quarters, their own microwave, fridge and washer (and Wi-Fi), and let’s not
forget that she wants her own car. That’ll be $4000 each.
So, let’s go with this and pretend that separated mezonos
is also called mezonos (big issue). Let’s bump it up a few more bucks
for good measure.
Now, on the flip side, because a husband needs to cover
the extra $1000 to support his wife, Chazal decreed that he may lay claim to
any earnings she may have, at least to that amount. In the event he is required
to pay a larger amount of mezonos such as $4000, he can lay claim to at
least that amount. Many say he can lay claim to any amount she earns but, if
she prefers, she can opt to refuse the support and keep all her earnings.
Now, how does the prenup work?
On the eve of the wedding, we have the couple sign an
agreement that in case the union goes South (and becomes a Confederacy) and the
couple no longer live as a couple ($1000 bracket), he is hereby obligating
himself to support his wife at the individual rate ($4000 plus) for as long as
they remain married. What’s more, he is hereby waiving his rights to lay claim
on her earnings which could offset this burden. As a result, he will find
himself shelling out +/- $4500 per month to support a woman he is at odds with
and will receive nothing in return. This will inspire him to give his wife a
get, the sooner the better.
The idea is that this isn’t a monetary penalty for not
giving a get. It is just ramping up the cost of staying married with amounts
that the husband is obligated for regardless.
Ingenious!
But very contentious.
There is a long list of issues that cast a shadow on this
innovation. Many of them were covered in my previous posts.
One issue that has not yet been discussed (hence, one
purpose of this post) is (a) the crux of the “obligation” for mezonos and
(b) what is its true amount. As I just indicated, this is a two-fold concern:
(A) The obligation itself. When is it in force and when
not?
(B) Even if it is in force, how much is the husband
really required to pay according to the Halacha? What is considered mezonos
under these circumstances? The ex-wife can certainly live without a car and
without Wi-Fi even if it hampers her accustomed lifestyle. Does he need to cover
more than essentials? Is “voluntarily” paying more than this considered also to
be mezonos or is it a knas in disguise?
Let’s first examine the basic obligation (A). Our main concern
is the fundamental Halacha (Even HaEzer 70:11 Rema) which states that “a man is
not obligated for the mezonos of his wife unless she is [living] with
him”.
The basic Halacha is that when a man and wife are
separated from each other, the obligation for mezonos is not in effect.
Period. As such, any money he gives is not mandated by Halacha
and will be classified as a self-imposed monetary obligation or “knas”,
in short.
Toras Gittin will not necessarily help us. He was talking
in a situation where the woman is not abandoning her husband, so the existing
mezonos obligation remains in effect. Conversely, the BDA prenup
expressly opens as follows:
Should a dispute arise between the parties, so that they do
not live together as husband and wife,
The PNA is talking only when the couple is living apart. This is the exact situation where Rema states that there
is no Halachic obligation for mezonos. It ruins the whole party!
Of course, there are exceptions. Most notably, cases
where the woman did not really want to leave her husband but the circumstances make
it impossible for her to stay. For this, she must have the approval of Beis Din
to leave her husband. As long as she was not being physically abused and did
not stand in danger of physical harm, she cannot leave the home on her own and
be entitled to mezonos by Halacha. Even if Beis Din agrees with her
reasons for leaving (again, we are not talking violence) and approves of the
separation, her entitlement to mezonos only starts at that point and
there is no Halachic basis for Beit din to award her mezonos
retroactively for the time she left the home without their approval.
The other exception is in a case where Beis Din says he
is obligated to give a get and the husband delays it without
justification. If this situation is clear-cut, like a delay due to
sheer spite, there is a definite obligation for at least basic mezonos (see
concern B), so we are good in this department. But in real life, things are
never so clear-cut and it can get very sticky. Unfortunately for the BDA, most situations
where husbands delay giving a get are not cases of sheer spite. There may be a
myriad of issues involving children or marital assets or claims of damages for
abandonment (of the husband) that are holding up the show and are quite
justified. Typically, the wife is just as stubborn and recalcitrant as the
husband in these areas.
In fact, the basic policy in the Rabbanut in Eretz
Yisroel is that a get cannot be given until all collateral issues are
addressed. If they are not settled it is inevitably because both
sides are fighting. Unless Beis Din sincerely believes that the husband is
being exclusively unreasonable, we cannot say the husband is delaying the get.
As such, there is no obligation for mezonos. We are back in Knas-land.
All the above applies to where the woman is reasonable
and not an official moredes. It goes without saying that a bona fide moredes
is not entitled to mezonos at all. Objectively speaking, this must be
the situation in a large percentage of cases. But, how objective is the BDA?
In Part One of Trey Gadya I quoted Reb Michael J. Broyde
who, in a guest blog post on Emes V’Emunah, asserted that the BDA would
“responsibly” (quote marks are mine – YH) determine whether or not the wife is
entitled to any mezonos. His words were, “since the BDA Prenup is an
arbitration agreement, the bet din panel hearing this matter could decide not
to order the payments…”.
Sure they “could”. But “would” they? After all, Reb
Broyde emphasizes that they are “an arbitration…panel”. This means they can make
arbitrary decisions which may not conform to the Halachic
mandates.
Since they police themselves, it is impossible to know.
To sum up concern A, the ex-HTB may find himself paying mezonos
that Halachically he is not obligated to pay. If so, these payments would
constitute a knas and challenge the validity of the get. This is even
worse if the wife turns to the secular court to enforce the agreement. Note,
there is no stipulation in the PNA that the support – i.e., mezonos – must
be Halachically sanctioned.* The court would enforce the PNA as written.
[*Note – The text of the prenup does indeed include the
phrase “in lieu of my Jewish law obligation of support…” which the BDA can
claim is designed to stipulate linking the legal enforceability to the Halachic terms.
I think it is obvious that this is way too vague and subjective to depend upon.
I can’t imagine that a non-Jewish civil judge who is clueless about Even HaEzer will interpret it as a stipulation.]
Concern B focuses on what amount can reasonably be
classified as mezonos. The standard mezonos relates to a couple
living together wherein “she eats and drinks what he eats and drinks”. But
if he doesn’t want her to eat with him, Beis din sets a minimum standard that
he must maintain. “This applies to the poorest of Jews, but if he is
wealthy, it goes according to his wealth.” The Rema says earlier that if
she is not eating with him at his table, he must at least provide for her by
the standards of the family she came from and if his standards are higher, then
by his standards.
This is known as the principle of “oleh imo” that
a wife is elevated to the higher standards of her husband but is not “yoredes
imo” – she does not need to downgrade her standards to his if they are lower.
The question is, does “oleh imo” apply to cases where the
couple is at odds and the husband still has an obligation of support?
Actually, this was a very intricate matter discussed by
the Beis Din HaGadol in Yerushalayim in February 2018 (see HERE). The local Rabbanut BD in
Netanya ruled that the principle of “oleh imo” does not apply to an estranged
couple. The ruling was appealed to the Beis Din HaGadol in Yerushalayim (HRHG
Rav Dovid Lau, Shlita) and they unanimously overturned the ruling and said that
the Rishonim who uphold the status clearly overwhelm the few Rishonim (Rashi
and Rosh) who say it does not apply.
It emerges that, as long as the support amount preserves
her current standard of living, it is not excessive. So far so good.
Still and all, this only applies to things that go into
the category of mezonos. This includes food, clothing, personal hygiene
products, healthcare and bedding. But, what kind of living quarters is she entitled
to on his dime? Her own place or a shared apartment?
Also, where is she living anyway? In many situations of couples separating, the wife remains in the previous family home. If it is owned and paid for, then dwelling expenses are null. And she anyway own her "half". Oft-times there may be a mortgage or rent which is being paid for by husband's income and this payment is still going on (perhaps if only for the benefit of the children). In this case, the woman is living "rent free" and there are no grounds to calculate dwelling in any assessment for what is reasonable mezonos.
Is a car considered “mezonos”?
Nobody really needs a car to live. If they each had their own and she still has
her car, does he now need to cover its upkeep? And certainly, nobody needs
Wi-Fi or an iPhone or MP3 player to live.
What if they both came from a simple background but with
the combination of both his and her incomes they were able to live higher? They
were only living higher because of her added income. The “oleh imo”
until now was not due to his own wealth but their combined wealth. Now she left
and took it with her. Can she still claim “oleh imo” status from a
husband who never had it on his own in the first place?
So now, if she can maintain the same food, clothes, healthcare
and bedding and share an apartment all for $3000 per month and the mezonos
clause calls for $4500 per month, is the extra $1500 mezonos or a knas? (Even more so if she is "rent free" and doesn't need more than $1500 per month.)
Clearly, all this is subject to divergent points of view.
Some poskim will call it mezonos and others won’t. Note the Chief Rabbinate
in Yerushalayim and the Beis Din in Netanya were not in agreement.
And the big question is… does consent of the (soon to be
ex-)husband to consider this inflated figure “mezonos“ make it so?
This is another serious point of contention. Rav Moshe
Sternbuch is very skeptical about this. He holds that an exaggerated amount cannot
be considered mezonos. Others have stated that we absolutely cannot consider
any amount in excess of what an objective Beis Din would
calculate to be mezonos. In his talk (66:30), HRHG Mordechai
Willig, Shlita mentions one such posek, Harav Beeri, and presents it as if he
is an aberration, a daas yachid. Based on my research, I think that there
are many who share this viewpoint, especially here in Eretz Yisrael.
There is no such thing as a free lunch.
Rav Willig himself wants to maintain that a person can
designate any amount that he wants and call it mezonos, and he brings
HRHG Zalman Nechemiah Goldberg, ZT”L as an ally. As “proof” he mentions the
well-known Rashi in Parshat Toldos (Breishis 27:9 s.v. Kach Li). In the
Chumash, Rivka instructs Yaakov to go to the goat pen and “take for me”
two kid goats. Rashi references the Midrash Rabba Breishis 65:10 which says
that Rivka was saying: They are my property and are not gezel. For so had
Yitzchak stipulated in her Ketubah that she may take two kid goats every day.”
Two kid goats. Trei gadya!
Rav Willig exclaims at his talk (69:40) in a tone of
astonishment, “שני גדיי עזים
every day, that’s a lot for mezonos. שני גדיי עזים a
day! A DAY!!” He seems to consider this something very exorbitant and “a lot
for mezonos”. As such, it is justified to designate any sum for mezonos no
matter how exorbitant.
With all due respect to Rabbi Willig, Shlita and HRHG
Zalman Nechemia Goldberg, ZT”L, I think this “proof” is worse than weak.
As a preliminary point, we have a tradition that even though
Midrashim can be used as a supporting aspect to Halachic concepts that
have other sources, they cannot be used as a standalone source to teach us
Halacha. But let’s overlook this technicality. There are other problems:
There is a Talmudic
term “ממה נפשך” which means either way you want to look
at it, you have a problem. If we suppose that Yitzchak Avinu was wealthy and
this type of “mezonos” was commensurate to his wealth and, as such, it
is his basic obligation for mezonos, why did it need to be stipulated in
the Ketuba? She is entitled to it anyway. She can eat whatever he can eat! (See
the following Rashi.)
On the other hand, if this stipulation is beyond what she is entitled to, who
is to say that this is “mezonos”? It seems more like what we know as “tosefet
ketubah” which means added perks (bonus) to entice the wife. Just because it is
in the ketuba, what makes it mezonos??? Especially if he would not be
obligated to supply it regardless?
· Next, it seems that
Yitzchak was wealthy and such a stipulation (or support obligation) was clearly
within his means. Who is to say that one can make such a stipulation as “mezonos”
when it is clearly beyond his means?
· Next, Rivka was awarded
this bonus from day one with no conditions. So, even if it is termed “mezonos”
it is the mezonos she was always getting (as per the Toras Gittin). How can
some new inflated figure become mezonos today even though it wasn’t mezonos
yesterday?
· Next, the husband’s obligations
of the ketuba is for the wife doing one thing in return: הוו לי לאינתו – be for me a wife. Who is to say that any
added “mezonos” or perks (whichever) will apply in the event they go
splitsville and she ceases to act as a wife?
· And lastly, what
makes anyone think that two kid goats a day are exorbitant at all? My Hagaddah tells me that a kid goat
costs two zuzim. That’s all. Two kid goats are four zuzim. This is luxury? Understood
that for lower class income this may be a lot but, for even upper middle class,
it’s not over the top. I don’t think it is any different than two chickens a
day.
True, I don’t think any woman
needs two chickens a day, and I would assume that Yitzchak was simply allowing
her to take two kids a day if she wants but did not expect it to happen every
single day. But we need to understand that Yitzchak owned these goat herds so,
although he was certainly Torahso umnaso, the Avinu family was in the
goat raising business. When you produce a commodity as a family business, it’s
not a big deal to give some of the family product to the wife on a regular
basis.
My mother has a first cousin
who was married to a chicken farmer in Vineland, NJ. I assume he did well in
business but was no millionaire. I also assume that his wife was welcome to
take as many chickens a day as she might have use for – even without a clause
on the ketuba.
I also know this first hand because
my father, LOY”T, was in the wholesale jewelry business and you can bet that my
mother’s LOY”T jewelry box has more goodies than most of her friends. This is
what happens when hubby is in the business. Same for my sister whose husband is
in the kosher cheese making business. Not much jewelry but plenty of muenster. In
neither case is there any mention in their ketuba.
By the way, I am not even in
any business and can hardly make ends meet and I still allow my wife to take
two chickens every single day. And she can have them any way she wants – fried
sunny-side up, scrambled, hard or soft boiled, in an omelet or poached. It’s
not a big deal.
All told, it’s hard to use the case of Rivka’s kid goats
as a precedent for inflated “mezonos”.
To put all this in perspective, what happens in a standard situation where there is no prenuptial agreement that pre-designates a dollar amount
for “mezonos”. How is the amount determined? (Let’s say a case where the
husband is abusive and the wife got approval to leave and they haven’t reached
the point of a divorce decree so there is no question he must provide mezonos.
To make it simple, we will assume that the wife has no personal income at all.)
Simply put, Beis Din will evaluate each case on its
merits. They will look at the standard of living that the couple lived on in
the good days and what the husband is currently earning and how much the wife
needs and they will arrive at some reasonable figure. Anything higher than that
goes into the twilight zone of inflated “artificial” mezonos.
Rav Willig and HRHG ZN Goldberg are okay with this but
Rav Sternbuch and Rav Beeri and the Chazon Ish are not. There is no support from
the Toras Gittin on this point nor from Yitzchak and Rivka.
These are the problems of trei gadya. I’m just
putting in my two zuzi.
In previous posts we brought up quite a few other issues:
- Asmachta
- The waiver that doesn’t really work
- The misapplied Kim Li
- Coercion of the Chassan to sign the prenup even if everything else is okay.
I am not trying to claim that the BDA PNA is not valid. There
are numerous qualified Talmidei chachamim who are supporting it. I am trying to
claim that it is quite contentious and is not valid like all opinions. As such,
it will not serve as the once-and-for-all solution to the problem of get
refusal that it was hoped to become. I wrote in my opening post why this
is inevitable.
Is this the best we can come up with? Is nothing else out
there? Is there no competition in the marketplace?
Well, maybe there is. And this is what I want to examine
in my next (and hopefully final) post of this series.
As for the PDA prenup…
חסל סידור פסח כהילכתו
לשנה הבאה בירושלים
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