Prenups XIII – PNA Bankruptcy and Reorganization – The Hirshman 3-Step initiative

 

Welcome to the [intended] final installment on the topic of Halachic PNAs (PreNuptial Agreements). After investing twelve posts to keep it in business, I have no choice but to file for Chapter 13 “reorganization”. From all I’ve written, it’s clear that as a universal, foolproof, silver-bullet solution to the [exaggerated] “agunah” crisis, this instrument is bankrupt.

Throughout the entire journey it was clear that the BDA progressives are biting off more than they can chew. They are trying way too hard to do way too much for way too many. In the effort to satisfy everybody, they need to do a lot of cutting and stitching.

Where I come from, there’s a term for bending and stretching to get an instrument to fit every goal and opinion – the “bed of Sodom”.

But now, good news for the BDA.

A recent find indicates that we can relieve some of their burden. The burden I refer to is the ultra-burdensome language that the BDA felt compelled to insert into the “sticky” (Rav Willig’s term) waiver-of-the-wife’s-earnings part of the contract.

In my Prenups series, I spent the first several posts in demonstrating that the part about the husband irrevocably committing to waive the wife’s earnings at “showtime” stands on very shaky ground. This is something that even Rav Willig admitted to.

In my post Prenups V, I wrote as follows:

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.

Of course, the BDA does not agree with me and does not think this terminology is useless. It was a key issue even in my first post. Here is what I wrote there:

… peiros cannot be called “my wife’s earnings” because they are automatically his as soon as they come into existence. Yet, the phrase “and I recite that I shall be deemed to have repeated this waiver at the time of our wedding” indicates otherwise. Why are those words there?

Rabbi Willig explains himself (71:00): 

“If you look in Kesubos 83 it says that you can’t do that (waive his rights) before the eirusin …”

I again elaborated on this convoluted language in my second post:

In the current English version there is an odd clause added in. It says: “and I recite that I shall be deemed to have repeated this waiver at the time of our wedding.” These words are not in the original Hebrew, so why are do they appear in the current English?

Says Rabbi Willig (70:45) that, without these words, the waiver part of the agreement will not be enforceable. He points to the gemara in Kesubos (83a) that tells us that one cannot relinquish any “rights” prior to the wedding because he hasn’t been awarded them yet. The opportune time for such a thing would be after the kiddushin but before the nissuin. So by repeating this waiver after the kiddushin, or being deemed to have done so, we have grand-slammed the ball on to Waive-land Ave.

Rabbi Willig was saying that because one cannot waive his upcoming rights until after the eirusin takes place, which is not before the chuppah, this “waiver” needs to be “deemed” to be repeated at that time.

So, here’s a special personal message to Rabbi Willig (if you speak to him, let him know): You can now totally expunge this verbose line from the text of the PNA.

Who says so?

The Mahari Kash (16th century Egyptian sage Rabenu Yaakov Kashtro).

This was ruled by the Rabbanut Beis Din in the Haifa District under the authority of Harav Avraham Meir Shalosh (AB”D), Rav Ephraim Bogard and Rav Ben-Tzion Topik. This is from Case File 1071879/2 issued on 13 Mar Cheshvan 5782 (10/19/2021). You can see it HERE.

In their ruling, they quote Mahari Kash in his sefer Shu”t Ohalei Yaakov 101, who says that what we call “shidduchim” in our times is just like the official eirusin period in the times of Chazal. Mahari Kash seems to draw support from the Rashba. The Haifa Rabbanut dayanim draw additional support from the Taz and the Chasam Sofer and Chavos Yair brought down in Pischei Teshuva Even HaEzer 162.

As such, there is no further need for this onerous “bed of Sodom” verbiage. To the extent that this siluk works even at the time of the eirusin, it works just as much if it is merely expressed during the “engagement” period prior to the wedding.

Nevertheless, I went on to say that it doesn’t matter if it is expressed before the eirusin or after it. It still doesn’t work. This is because, in reality, the chassan is not accepting upon himself any siluk at either of these times. As a result, this “waiver” is truly bankrupt.

So much for good news.

All told, the situation with these halachic PNAs is hopeless – but it’s not serious. I think we can come very close to accomplishing what we want with these PNAs as long as we don’t want them to do the impossible. We need to forget about trying to eradicate the “agunah” problem and get more proactive in terms of preventing it from coming about in the first place.

For this we will need the Yechezkel Hirshman Prenuptial Agreement, or the revolutionary Hirshman [Three-Step Plan] Initiative.

Yep, as usual, Yechezkel has it all figured out. It is amazingly simple, amazingly innovative, and amazingly old-fashioned. No fancy contracts, no lawyers or toanim or notaries, no asmachtas, waivers, “mezonos”, and no “kim li”s.

No, Yechezkel is not going to reinvent the wheel. I didn’t get much credit for it the first time I did it. That was in a previous galgal, anyway. Not at all. We will simply take the tools that Chazal have given us for centuries and, for a change, learn how to use them. Here is all we need to do:

Step 1 - Revamp the Kesuba

Step 2 - Revamp the Chassan/Kallah classes

Step 3 - Revamp the Tanayim

 

Are we ready? Let’s go!

 

Step 1 – The Kesuba

MA[K]GA – Make Ashkenazy Kesubot Great Again! or “Where’s the trei gadya Beef?”

One thing I learned from my decades here in Eretz Yisrael is that our Sephardi brethren and the Rabbanut in general take the Kesuba very seriously.

We know that a Kesuba has three parts. The principle (ikar kesuba), the nedunia (tzon barzel), and the tosefet (bonus). The principle is a set 200 zuz for all chaste Jewish maidens. There is a dispute on how much this amounts to in today’s terms. The Mechaber holds a mere 120 grams of silver. We Ashkenazim are much more magnanimous. As such, the Rema rules that it is 960 grams of silver.

I checked today’s price of silver for a kilo (1000 grams) and got $782.85. As such, the value of the ikar kesuba for us Ashkenazim is a whopping $751.68. For the Sephardim, they can manage with a grand $93.94. but the Sephardim are not to be outdone. In Sephardic circles it is customary to add a very substantial tosefet. Usually, it is nothing less than 120,000 shekels and it is not uncommon to go to 555,555 shekels. Wealthy folks pledge even higher. This amount in today’s dollars would range from about $35,000 to about $163,000.

These amounts are usually marked in current local currency so there will be no need for precious metal conversions. Moreover, since the amount is clearly stated in current local currency, it is generally upheld when a kesuba is mandated for payment in a divorce case. As such, many contentious divorces here in Eretz Yisrael include a full-scale litigation over whether the wife is eligible to collect her kesuba since, typically, there is a serious handful of money at stake. For this reason, Beis Din needs to examine the conduct of the two spouses to determine if either one can be faulted for the divorce. Thus, the prize money of the kesuba plays an influential role in how divorce proceedings proceed and how the couple behaves.

We Ashkenazim are a bit more traditional and prefer to rely on antiquated Aramaic language. We offer 100 zekukim for the nedunia and another 100 zekukim for the bonus for a grand total of 200 zekukim after the principle $750. It is not our custom to add to this.

It should be.

The kesuba is meant to be an amount of money that the husband would take pains to avoid being required to pay and that the wife would take pains not to forfeit. So, let’s check it out. What is the true value of 200 zekukim? (You can check it out HERE.)

We will start at the low end. This is the opinion of the Nachlas Shiva who maintains that the entire 200 zekukim amount to a paltry 2.784 kg of silver which, in today’s prices, will add a whopping $2,180 to the principle $750. According to the Nachlas Shiva, the total value of an Ashkenazy kesuba today is less than USD $3000! This is not likely to have much impact on the spouses.

On the very high end of the spectrum is (who else?) the Chazon Ish who contends that our 200 zekukim come out to 57.6 kg of silver. In today’s world this will amount to just around USD $45,000. This is indeed a respectable amount but still not very exorbitant. In any case, it is by all accounts the upper limit.

The Chazon Ish’s shiur may be effective but it is very difficult to enforce. The general rules of המוציא מחברו עליו הראיה and kim li dictate that, for lack of clarification, we cannot impose more than the minimum amount. In many specific cases, the Beis Din has bent over backwards to justify some of the higher opinions such as averaging out the extremes or imposing the Chazon Ish, but such a recourse needs to be justified. It cannot be imposed by default.

What’s more, this can only work due to the inherent safek of the true value since, in most cases, no chassan really tried to determine how much 200 zekukim are worth when he got married (I certainly didn’t). As such, Beis Din can claim that he accepted upon himself whatever amount they determine. However, if a chassan – or a sharp to’ein – expressly declares that, at the wedding, he had in mind the opinion of the Nachlas Shiva or some other low-price opinion, it is really hard for any Beis Din to forcibly impose a higher amount.

To sum up, even though we can claim a standard Ashkenazy kesuba to be worth $45,750, we must acknowledge that the default amount is a mere $2,950.

We need to change this. An Ashkenazy kesuba needs to be worth a substantial amount. This is how it was in the old days, and this is certainly what our wives and daughters deserve. We need to take a page out of the Sephardic “book” and do a tosefet kesuba that has teeth.

I personally think that אפילו עני בישראל לא יפחות from $36,000 tosefet on a kesuba. Minimum. $360,000 is more like it. $100,000 would be very reasonable.

This would not be changing any minhagim or even the text of the kesuba. We can leave in the standard 100 zekukim keseph for nedunia and 100 zekukim keseph for tosefet and right after it says:  סך הכל מאתיים זקוקים כסף צרוף simply add  ועוד ______ and fill in the blank. (I have seen Sephardi kesubos just like that).

Another very simple method is, that immediately after those fateful words, סך הכל מאתיים זקוקים כסף צרוף, just add these five magic words: כפי דעת מרן החזון אי"ש. This tells us that the chassan acknowledges the higher value of silver zekukim and automatically brings up the tosefet to the $45,000 range without any disputes should the unthinkable happen.

Accordingly, instead of recklessly mandating every mesader kiddushin to refuse to officiate if the chassan does not sign a controversial prenup – which will more than likely lead to a get meuseh and many mamzerim – we should mandate every mesader kiddushin in all circles to refuse to officiate if the kesuba is anything less than $36000 (about NIS 125,000) or, at least, to define the value of silver zekukim according to the Chazon Ish.  

[Update - After this post went online, an astute reader contacted me offline and informed me that the Rabbanut has a standard version of an Ashkenazy kesuba that contains both some blank spaces for adding extra amounts of tosefet and it notes that the zekukim are in accordance with the Chazon Ish. You can see it HERE.

I am grateful for this information and gratified that these "reforms" are available out there. Despite this, I remarked to the reader that this version certainly needs more marketing and wider usage.]

Once the sides agree to beefing up the kesuba, we can advance to Step 2.

 

Step 2 – Chassan/Kallah lessons

An Educated Consumer (Chassan and Kallah) is our Best Customer

 

I wrote earlier that the purpose of boosting the kesuba is to make it into an instrument of influence. It should be something that a husband is not going to want to pay out and that a wife is not going to want to sacrifice. All of this only counts if two things are in effect:

• The relevant parties are aware that the kesuba is a valuable and enforceable document.
  
  
• The parties are aware of when it can be enforced and when not.

Besides this, in exceedingly succinct language, the kesuba spells out all of the other rights and obligations of the two sides.

Knowledge is power and it is also safety and security. It is vitally important to for a newlywed couple to know all these things. Sadly, most of us do not.

In the recent decades there has been much controversy as to whether the yeshivos and the Bais yaakovs are adequately preparing our youth for marriage. Well, the answer is a resounding NO. This is because the aforementioned rights and obligations are spelled out in Shulchan Aruch Even HaEzer. In order to know them, one has to learn these parts of Even HaEzer. But almost nobody does.

The yeshivos don’t teach them. The Bais Yaakovs don’t teach them. And the Chassan and Kallah instructors don’t teach them.

I already wrote about this issue at length almost five years ago in the second half of this post:

The Strange Arm of the Law

 

I highly recommend linking over there and reading the entire post (or at least the last half), but for those who don’t want to bother, here is the primary excerpt:

When even the most observant couples go to Beis Din, they commonly squabble about what he does or doesn’t do and what she does or doesn’t do. Oft times they are shocked when the dayan asks him, “Why do you think she is required to do that?” or he asks her, “What makes you think that he is not entitled to do that?”

They never really knew the rules. And if they did, maybe they wouldn’t be in Beis Din.

When I was a chassan more than 30 years ago, my chassan teacher taught me all of the Halachos of Taharas HaMishpacha like standard and gave me the standard pep talk about how to interact with my wife during the night and during the day. He also did one extra thing that I don’t think was standard. He told me to read over the kesuba up front and make sure I understand what it says.

I am told that today, there is a little more training about worldly issues. But still something is missing.

The rules.

Chassanim [and kallahs] are taught the relevant parts of Yoreh Deah 183-200 but they are not taught the relevant parts of Even HaEzer 69-90. This is where the rules are. I really think that Chassan and Kallah lessons need to include these Halachos.

So, I said it then and I repeat it now. Chassan/kallah classes cannot be limited to Yoreh Deah and Orach Chaim 240. These classes need to cover the relevant parts of Even HaEzer.

The entire body of Halacha is quite vast. It begins at siman 66 of Even HaEzer and continues to siman 118. That’s 53 topics. Of course, we don’t need all of them. But the curriculum must begin at 69 and continue to 80 non-stop. Special emphasis on siman 75 which deals with where to live and 77 which deals with what is a mored and a moredes. It needs to be made clear to the chassan that in the event that he is deemed to be a mored, Beis Din is empowered to add more sums of money to his wife’s kesuba! 

(Note - The official amount is 3 dinarim per week. A dinar is 4 zuz so this would amount to 12 zuz per week which, according to Rema, is a bit shy of USD $50 and about $200 per month. This is not a scary sum of money for a well-off person, but it would still be effective for one who is living on a tight budget. Moreover, it is possible that a modern Beis Din is empowered to adjust this amount to reflect current CPIs.)

After this it’s a good idea to know siman 85 about financial rights. The kallahs must also study 115 about Das Moshe and Yehudis and how they can lose their kesuba rights. The feminists should learn siman 154 about when they can dump their husbands without losing their kesuba. Finally, everybody should learn siman 178 about [in]fidelity.

All this is the get-ready-for-marriage curriculum that every chassan and kallah must know. If they are not taught early on in the yeshivos and Bais Yaakovs, they must be integrated into the chassan and kallah lessons.

Of course, many will ask: Are you insane? It is almost impossible for a chassan and kallah to find time for the crucial Yoreh Deah lessons during the course of their engagement. Now you want us to triple it with half of Even HaEzer on top of that?

And the obvious response is that nobody said that this part needs to be studied exclusively during the engagement period – unlike the Yoreh Deah topics which do. These do not need to be taught one-on-one, either.

Ideally, as noted, these can certainly be part of any yeshiva or Bais Yaakov or Girls’ Seminary curriculum. And they should be. Perhaps BMG should make it a prerequisite of leaving the freezer.

But, if not, and if there is not enough time to get it done before the wedding, then by all means, do it after the wedding. Indeed, if it is a post-wedding extension of the pre-wedding chassan and kallah lessons, it can double as a post marriage supervision program that can help the sides adjust to marriage. Several Chassidish courts have programs like these in place.

Alternatively, it can be offered as a group class by a community institution like a shul or local Kollel. Or, I think it may be a great idea for the couple to actually study it themselves as a “chavrusa-shaft” and consult their joint or individual mentors for their questions and to clarify their differences of opinion on the subject matter.

 

Step 3 – The Tanayim

The Hirshman-RMFeinstein PNA

Once we have a chassan who makes the kesuba worth something and who learns the rules – so he knows what to expect at Beis Din down the road, and we have a kallah that knows that her kesuba is not just a fancy piece of paper to store in her jewelry box but that it is really worth something and it comes with strings attached, all we need to do is to write a very succinct PNA wherein the spouses pledge to allow either the designated Beis Din or some other local Beis Din handle the proceedings in the event of marital strife.

Certainly, we need some teeth to enforce this. But we only need one “threat” to the parties: Anyone who violates this PNA and does not approach the designated BD, but instead takes their dispute to another court before Beis Din allows it, is automatically deemed a mored or moredes respectively.

Now where have we already seen such a PNA?

That’s right. This is HRHG Rav Moshe Feinstein’s “prenup” with just a little bit of mustard on it. And he suggested that it be inserted into the tanayim.

So, in conjunction with the other steps, this is all we need to do. We need to incorporate HRHG Rav Moshe Feinstein’s prenup into the tenayim but just tailor the language to reflect the other steps.

What will the terminology look like?

What was Rav Moshe’s nusach?

In English this is what it says:

“If after the wedding they (the couple) should come to a separation (פירוד – “pirud”), cha’v, then the husband will not hold out from giving a get piturin and the wife will not refuse to accept it, as will be mandated by Beis Din xxxx, etc.”

Firstly, I believe his precise language is too rough and needs to be polished. It is not logical that he meant that any kind of separation (pirud) should automatically mandate giving a get. It is obvious from the context that when he wrote “separation” (pirud), he meant what we refer to as “irreconcilable differences”, meaning there is clearly no hope for the marriage. Since it is quite possible for others to interpret the term “pirud” as only a trial separation or a less extreme level of marital discord, it is too ambiguous to safely use this terminology.

Alternatively, we can say that this is what Rav Moshe meant when he added the words “as mandated by Beis Din”. He is saying that this automatic obligation to deliver a get is only effective if and when mandated by the Beis Din. Either way, his language is too vague and subject to abuse, so it needs to be refined.

It is worth pointing out that Beis Din is not meant to be only the address for a tviat get. It should also be the address for a tviat Shalom Bayit.

Secondly, as noted, this clause needs to be beefed up to reflect the other steps we discussed and to include our threat for punitive action.

Hence, I propose something like this:

אם אחרי הנישואין יבאו לידי קטטה או סכסוך, ח"ו, לא יעכב שום צד להגיש את הסכסוך לבית דין _______ או לבית דין השורר באיזור מגורי הזוג, ויפעלו על פי הנחיותיהם. כל צד שיגיש תביעה בערכאה חילונית או אזרחית או שיעסיק עורך דין לשם כך ללא הנחיית בית הדין ייחשב כמורד/ת.

הצדדים מתחייבים להיות בקיאים [בהלכות טהרת המשפחה ו] בהלכות כתובות בשו"ע אבן העזר סימנים ס"ט-פ', פ"ה וקט"ו ולנהל אורח חייהם בהתאם.

And, in plain English:

If, after the marriage, a dispute or a conflict arises, cha”v, neither party will refrain from referring the conflict to Beis Din _______ or to the prevailing Beis Din in the area where the couple resides, and act according to their instructions. Any party who files a lawsuit in a secular or civil court or engages a lawyer for this purpose without a directive from the Beis Din will be considered a mored/es.

The parties undertake to study [the laws of family purity and] the laws written in Shu”A Even HaEzer simanim 69-80, 85 and 115 and to conduct their lifestyles accordingly.

This is it. Short and bittersweet. No more, no less.

הכל שריר וקיים

It will be signed by the witnesses of the tanayim and a kinyan made by the chassan and kallah and parents as is customary. However, I think it may not be a good idea to read this part out loud at the tish. Make a note to skip it.

Chronology is not important. Some people do tanayim at the engagement and others at the wedding. If it’s done at the engagement, just ascertain in the parental pre-engagement negotiations that the chassan needs to put some meat into the kesuba – either with a respectable tosefet or an acknowledgement of the Chazon Ish opinion on zekukim as explained above. Further, that both sides need to add the requisite Even HaEzer topics into their chassan/kallah education and intend to abide by it.

For those who delay the tanayim until the wedding, it is hoped that the beef-up of the kesuba and the additional education have already been undertaken or, at least, agreed upon.

Note, that since this is just an amendment to the standard tanayim, this should alleviate the objection said in the name of Rav Elyashiv, ZTL regarding the Yashar prenup, not to sign it on the day of the wedding itself. I saw it explained that his reasoning is that onlookers should not think that this is an additional ceremonial part of the wedding ritual. As part of the tanayim, this is irrelevant. The tanayim is indeed a standard part of the wedding ritual. After all, this initiative is modeled on Igros Moshe who earmarked it for the tanayim in the US where it is more customary to do it on the wedding day. Hard to imagine that Rav Elyashiv would conflict with Rav Moshe Feinstein on this issue.

So, here you have it. The Hirshman Three-Step Plan Tanayim Halachic PNA Initiative.

No fancy contracts, lawyers, notaries, fines or waivers. Nothing. And for those who put it into effect, it is guaranteed to bring positive results. This is the hydroxychloroquine and ivermectin of PNAs. Forget Rabbi Michael J. Broyde’s unsafe and ineffective vaccines.

Will this reduce recalcitrance?

Yes, it will. And it will strengthen their marriage. I guarantee it.

Will this eradicate recalcitrance completely?

Of course it won’t. But this is not our goal. Such a goal is unreachable in any case. Bear in mind that these agreements are only for people who want them.

 

Here is my guarantee:

אם את הדבר הזה תעשה וצוך א-לקים ויכלת עמד וגם כל העם הזה על מקמו יבא בשלום! 

Post Script - Any reader who wishes to promote or disseminate this initiative is hereby authorized to do so freely and is under no obligation to do so in my name or to credit me for it in any way.   YH