Prenups XII – The Straight Dope on the Yashar Initiative

 

It’s hard to believe that it’s a full year and a half since I left off on the series about Halachic Prenuptial agreements. It began over five years ago in November 2017.

One of the main purposes of the entire One Above and Seven Below project is to explain to mitzva-observant “NCOJs” (non-“chareidi” Orthodox Jews) who do not really understand the chareidi value system and do not participate in it, what the chareidi value system is and why, because of it, we see things differently.

Hence, the purpose on the series about Halachic prenups was to explain why they are not being embraced in the chareidi world and, from my viewpoint, will never be embraced.

As a rule, the chareidi world has looked askance at “Halachic” prenuptial agreements for many reasons:

• There are serious Halachic issues that we don’t want to ignore.
  
  
• We are not fond of new ideas and “rituals” that are not part of our tradition (i.e., my father never signed one and neither did his or his or his).
  
  
• We don’t really need them. Certainly not at a community wide level.
  
  
• As an addendum to the above, one can argue that they increase the likelihood that troubled marriages, which could be saved, will end in divorce.

As for the first reason – the Halachic issues – I invested many posts analyzing them. A basic overview and a comprehensive list of issues is available in this post.

The second reason is self-explanatory.

The last two reasons are what I want to dwell on here as I discuss the last outstanding candidate for Halachic prenups – the Yashar Initiative.

Apparently, some progressive members of the chareidi world are falling into the trap of offering man-made solutions to G-d-given problems. I explained why it won’t work in this post. Most progressives (chareidi or otherwise) don’t read my posts.

In many ways, I am grateful for this year-and-a-half-long hiatus in writing about prenups because it gave me the opportunity to sit back and observe if anything of substance will come of this Yashar Initiative. I certainly did not expect this to take off and, as far as I can see, it surely hasn’t. This comes to me as no surprise.

Why?

Like I wrote above, even if it may be helpful, we don’t really need it.

Real hard-lined recalcitrance does not happen much in the chareidi world, and this is due to several reasons. At the top of the list is that chareidim have a more profound perspective of what marriage is all about and, because of it, we have a much better track record than those who are just “Orthodox”. To us, marriage is much more traditional, reverent, role-defined, and goal-oriented than it is to the non-chareidi masses. As a result, we have less divorces in general.

I can attest to this. I lived in the Lakewood community for five years while I was single. After I married, I lived in some mainstream US communities and lived over twenty-five years in Har Nof. I have never, ever seen a “plague of divorces” in any of these communities. If I sat down with a pad and paper and tried to make a list of how many chareidi/Yeshivish couples I know over the past forty years who got divorced, I doubt I could put down even fifty names. Without prejudice, I must report that most of the divorced couples I know were couples where at least one spouse came from a very religiously compromised background or a dysfunctional home.

Along with the phenomenon of less divorces comes a much lower level of recalcitrance. Bear in mind that divorces are never meant to be quick and simple. It is not uncommon for marriages to carry a fair amount of negotiation between the sides over money or where to live or whatever else before they are “finalized”. Sometimes proceedings are delayed, held back and even dropped because the sides cannot reach agreements.

All this is for two parties who are not yet bound to each other. No joint assets or children or anything.

If so, why should anybody expect that undoing an existing bond where there are joint assets and children and, perhaps, other issues, should require any less negotiation and should not be subject to at least the same propensity for delays or one side refusing to cooperate for lack of reaching an agreement?

Thus, typical divorces can get sluggish for “natural” reasons which can usually be worked out, even if it takes a good deal of time. This is because, in most cases, when all is said and done, both sides really want them to eventually work out.

Conversely, spiteful recalcitrance for “its own sake” is quite rare by us chareidim. Sure, it happens and in the few cases that it does, the agunah advocates have a field day year promoting it as a poster child case. Many of us know about one such poster child case in Monsey that even includes a full-sized poster on Rt. 59. I gather that nobody signed a prenup in that particular case, but the question stands: if there would have been a BDA-type prenup, would it have made any difference?

All told, the yeshivish/chassidish/chareidi world does not promote these PNAs and, as a community, we are none worse for the wear because of it. Yet, we do have our fair share of divorces and some of them are very messy and devastating affairs that cause much more damage to the parties (and the children) than they need to. As such, numerous askanim and Rabbanim/dayanim think that even the chareidi world has somethingto gain from some kind of a “Halachic” prenuptial agreement.

After this so very short introduction, it should not surprise anybody that I was personally distressed to get a copy of Mishpacha Magazine in my mailbox in Dec. of 2019 (it’s been that long?) sporting a primarily black (i.e., gloomy) background and the feature article: Can we find a better way to divorce? A renewed Call for the Halachic Prenup.

A better way to divorce? Are you serious?

Incidentally, there is a silver lining counterargument to the situation. Maybe we don’t want a better way! To some degree, it is a good thing that divorces should be acrimonious and devastating. This will cause people to appreciate their marriages more and go the extra mile to avoid this fiasco. If divorces were all quick and smooth and ceremonial, more folks would end up doing it. Not good for business (unless you are a to’ein).

But askanim need to keep themselves busy. If they don’t, they’re not askanim. And there is logic to saving the couple from themselves and saving their children from the self-destruction of their parents which invariably destroys the children, R”L.     

 

To address the Call of the Wild (or the Call of the Child) a number of devoted askanim led by Martin Friedlander and Eli Goldbaum created the Yashar Coalition and, with it, the Yashar Initiative.

What is the Yashar Initiative?

In my opinion, it isn’t really much of an initiative but rather, it is a modernized, enhanced version of HRHG Moshe Feinstein’s one line “prenup” expanded and expounded into a formal agreement between the sides to encourage them to play nice.

We know that the BDA prenup is a combination of a binding arbitration agreement and a penalty-for-recalcitrance agreement and the Ariel Rosen PNA is only a recalcitrance penalty agreement without the arbitration agreement. The Yashar “initiative” is nothing but a binding arbitration agreement without any built in pre-determined penalties. 

The parties agree to submit their grievances to a pre-designated Beis Din and allow the Beis Din to guide them through their ordeal for better or for worse. There is no preset penalty for added mezonos or anything to pressure the husband to give a get, although Beis Din has the authority to assess the husband with support costs at show time in accordance with Halacha. 

 

All this is fine. It is very similar to Rav Moshe Feinstein’s “prenup”. I noted in that post that the Yashar prenup (and some of the others) is meant to be able to enable the court to force the couple into arbitration through Beis Din but it is hard to see it being carried out in practice. If my memory serves, Rabbi Avraham Kahan said in his Headlines interview something like, “I don’t really know what we’ll do if the husband refuses to show up to Beis Din.”

So, in the larger picture, the Yashar Initiative has all the attributes of Rav Moshe’s “prenup” - it is Halachically sound and relatively toothless. It essentially obligates the couple to do what they are obligated to do even if they don’t sign it – air out their grievances in Beis Din.

Yes, there is indeed something to be said for taking an abstract obligation and putting it down on paper and signing on it. It makes it more concrete and deliberate and impedes one’s ability to deny it or “play dumb”. This is akin to the concept of making a vow (shevuah) to uphold the mitzvos of the Torah as discussed in Nedarim 8a. The gemara endorses this as a tool for one to motivate himself, yet in Shevuos 27a it tells us that this is not an actual shevuah and one is not flogged for violating it.

Hence, at the end of the day, it doesn’t really have a lot of teeth. I find it hard to imagine that, even if our “poster-child” from Rt. 59 in Monsey would have signed the Yashar Initiative, that it would impact his case much. So, the looming question is:

Is it good for the Jews or bad for the Jews?

To answer this question, we need to rephrase it:

• What good does it do? (Pros)
  
  
• What bad does it do? (Cons)
  
  
• Do we come out ahead?

The Yashar agreement is trying to address a key problem that dominates the parsha of divorce in today’s world, but I am not optimistic that it gets the job done.

If I were to assess the biggest problem in Jewish divorce it is that the drama is all too frequently played out in secular court. The courts, the laws, and, most certainly the lawyers, are what cause the situation to get out of control and to become acrimonious as well as prohibitively expensive. It also creates many forms of coercion and duress which bring about serious questions of get meuseh – a forced get.

By our Halacha, every divorce process – just like any monetary litigation - must be initiated in Beis Din. For whatever purposes the courts are needed, they are only to be implemented under the guidance and approval of Beis Din. The couple must first go to Beis Din and let Beis Din determine when it is appropriate to go to court and for what purpose. If the woman “jumps the gun” and goes to court without the consent of the husband and without the approval of Beis Din, which is so often the case, I can’t think of any reason that the get won’t be a get meuseh and totally invalid (see Shu”A Even Haezer 134:8. Note - I discussed this in the earlier post and remarked that it seems that most poskim and even Rav Moshe Feinstein are not bothered by this. But it is far from clear.)

Thus, the important thing is not that the couple should come to Beis Din, but that they should not go to court before Beis Din allows them to. As such, it is not sufficient for the couple to have an agreement where they agree to go to Beis Din. The main part of the agreement must state that no party can approach a secular court unless and until Beis Din allows them to. I would venture to go a step further and put into the agreement that no side can engage a lawyer in the process until Beis Din allows them to. This does not mean that the sides cannot consult with lawyers for legal advice about civil rights and procedures. It means they cannot retain one for proceedings and issue ultimatums to the other party. Accordingly, there would need to be some sort of a penalty for any side to violate this aspect and “jump the gun”.

The language of the Yashar agreement says that the parties will bring their case to Beis Din, but it says nothing about not going to court or engaging a lawyer before going to Beis Din. Since this is generally where the problems start, what good does this agreement do?

Now, even if the Yashar people want to insert this kind of language, we have a number of ironic catch-22s.

Firstly, as Rabbi Kahan stated in his Headlines interview, “I don’t really know what we’ll do if the husband refuses to show up to Beis Din.” What, exactly, should be the problem? Isn’t this an enforceable pre-arbitration agreement that is legally binding?

Yes, indeed. The pre-arbitration agreement is indeed enforceable, but where is it enforced?

In secular court.

If the purpose of the agreement is to get the couple into Beis Din and away from the secular courts until the time is ripe, but the husband’s recalcitrance is going to force the wife to open the case in court, we are back to square one.

A second catch-22 is that I noted that the parties should not even engage a lawyer into the case until Beis Din says to. However, we all know that the law requires that any party in an arbitration is allowed to have legal representation. Indeed ,the agreement itself acknowledges this fact. So we can’t really disallow any side from engaging a lawyer.

To remedy this, the agreement must stipulate that although each party can have a lawyer represent them at arbitration, the lawyer is forbidden to contact or serve notice of legal proceedings to the opposing party before the Beis Din arbitration takes place.

There is an additional irony of this point of not engaging a lawyer or going to court before the case is heard in BD. This is that the entire notion of these prenups is being promoted by liberals and women’s advocacy group to ensure that their men play fair and show up to Beis din to give a get. It supposedly helps the women at the expense (literally) of the men and, as such, it’s a hard sell to get the men to comply.

But alas, when it comes to going to court and sending nasty letters from lawyers, the women and their advocates are generally all for it. Today’s secular courts give the women better terms than they get from Beis Din. They prefer to play the game in court and only show up to Beis Din for the ceremonial Halachic requirement of getting a get. The last thing the women want to do is to sign an agreement to rein in their “rights” to open a case in court. As such, would this agreement be properly drafted (which it is not), it would be a hard sell to get the women to sign it, not the men!

A third catch-22 is the “Bitul Modaah” clause in clause 37. It states: “The Parties represent that they have each had the opportunity to seek the advice of counsel and toanim of their own choosing prior to executing this Agreement.”

This is the clause that says, "I am doing this of my own free will and have had informed consent. I know what I'm doing." This is similar to what Groucho Marx called the “sanity clause” (The parties represent that they are of sound mind and not insane and that they know what they are agreeing to.) His brother Chico tells him that, “You can’t fool me, there ain’t no Sanity Clause”. What I think Chico means is that, if one party claims that he was coerced into signing it and didn’t know up front what it says and/or he did not have the chance for council (or that he was or is insane), this claim nullifies the entire agreement including the integrated sanity clause.

I wrote about why an integrated Bitul Modaah cannot work when I discussed Clauses L and Q of the Rachel Levmore PNA in this post.

The obvious response, and remedy, to this problem is to say that for this reason, the agreement needs to be witnessed and notarized. Notarization means that an objective third party is affirming that the agreement was signed by the relevant parties in good faith.

What we learn from this is that to make this work, we need a 43-clause contract which is expected to be reviewed by lawyers and toanim (neither one of which are cheap if they are not relatives), witnessed and notarized, and it should also be approved by the Beit Din. I suppose it should also include a kinyan for good measure.

As Hillary HaZekeina said, “It takes a village.”

This agreement is supposedly designed for the Torah world, yeshivaleit (both chassidish and misnagdish) and Beis Yaakov girls. In our circles, engagements are relatively short and terribly hectic. Chassanim and kallahs are busy with married-life lessons, getting halls and caterers, bands, flowers, clothes, invitations, finding a place to live and making it livable all in the space of six to twelve weeks on average. All the while trying to remain as happy and exuberant as they felt on the day of their engagement.

Now, among all this commotion, we also want to burden this exuberant (or perhaps exceedingly nervous and fragile) chassan and kallah to take out time to make divorce plans in the middle of their wedding plans!

How thoughtful.

And to call lawyers and toanim and notaries and to get a Beis Din to sign along.

Did I mention getting a Beis Din? Which Beis Din? Where?

Note, we are not talking about people who are customers of the BDA שכבודם מלא כל הארץ. Those folks will just use the BDA prenup. We are talking about the black-hatters. We are suggesting to them, before their wedding, to choose a Beis Din for their impending potential divorce.

Where are the chosson and kallah from? Are they both from Lakewood? Both from Borough Park? What if not? What if they are from different cities? Different countries? Different continents?

Perhaps they know where they plan to get married. But do they know where they plan to live? Do they know where they plan to divorce (as long as they are anyway planning their divorce)?

What if the boy is from Monsey and the girl from Miami and they are getting married in Lakewood and plan to spend the first three years in Eretz Yisrael? Then, one spouse wants to stay in Eretz Yisrael and one doesn’t and the marriage goes south and they split and, let’s say, the girl takes the two kids and goes back to Miami and he stays in Ramat Eshkol. The Yashar agreement specifies a BD in Lakewood which doesn’t exist because the Av Beis Din took a position in Toronto. What then?

Once we understand all this, we can go back to our initial questions:

What are the Pros and Cons?

On the plus side -

Well, there don’t seem to be any Halachic problems with it and, if both sides willfully and amicably adopt the agreement and notarize it and implement it, then it might serve to help them divorce happily ever after. It won’t make their marriage any better, only their divorce.

But that’s about it.

On the minus side –

If there is no firm language to dissuade and discourage either side from going to court before Beis Din, including penalties for such, as there currently isn’t, it’s not worth anything. If there would be any such firm language, I doubt the women will want to sign it, nor will the women’s advocacy groups support it.

It is way too intrusive and cumbersome to burden a young exuberant couple with at the eve of their wedding. More so if we are dealing with an anxious and vulnerable couple. It could stop some weddings before they even begin.

Don’t take this from me. I noted that this agreement is generally an enhanced version of Rav Moshe Feinstein’s tanayim prenup from Igros Moshe Even HaEzer 4 107. Rav Moshe says that such an agreement (to pre-designate a Beis Din to go to) is good and clear, BUT…it’s not for everybody. He clearly says that we must evaluate the couple to ensure that such a stipulation will not be the cause of discord.

Thus, even HRHG Rav Moshe, ZTL, says that this is a parah adumah that will help some people and hurt some others. Incidentally, Rav Moshe’s initiative was published in Cheshvan 5740 (43 years ago) as an addendum to a standard tenayim. From then, it never gained universal acceptance. Personally, I am not aware of a single tenayim anywhere in the world that includes this clause.

So much for a universal agreement that should be implemented for the masses.

Sof davar, in my view, the Yashar Initiative may be a straight shot but it’s a straight shot to nowhere. My instinct is that it was formulated so that the chareidim can also appear to be “progressive” and to "keep up with the Willigs". 

Build a better prenup and the world will beat a path to your chuppah Beis Din.

It won’t work. The traditionalists don’t need it and don’t want it. It will never placate the liberals. And, besides, none of these agreements are going to work on a large scale for the reason I expounded in my acclaimed 2016 post about Desperate Measures. I wrote there:

Likewise, we will not eradicate problems of Shalom bayis and the Agunah issue. Why? Because HKBH doesn’t want us to. He wants us to achieve ברצות ה' דרכי איש גם אויביו ישלים עמו. (Mishlei 16:7) He wants us to choose marriage partners that will primarily enable us to fulfil His will (אם בחקתי תלכו...) not our own. And any “solution” that is not based on this isn’t going to work.

But if it makes any couple feel better, it’s there for the taking.

 

Post Script –

Despite all this beating around the bush with these “Halachic” PNAs – whether Yashar or krum – all is not lost. Yechezkel has his “three-step plan” to help make marriages more robust and to reduce divorces in general and make them smoother when they happen (sometimes).

But, as usual, I am way past my allotment in this post, and it will have to wait for another one. Meanwhile, love your spouse and keep the faith (oh, am I giving it away?...)