Prenups IX – Trei Gadya, Trei Gadya – Part 3: Is There Such a Thing as a Free Lunch?

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 19^th 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