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

Prenups XI: The Final Trei Gadya – Part 2 of A Consumer’s Guide to Halachic Prenuptial Agreements

  

Author’s note – Please see Part 1 of this post HERE.

 

I don’t hide that, personally, I am not a proponent of Halachic prenuptial agreements. To date, I have dedicated no less than ten posts to the goal of explaining the Halachic and Hashkafic reasons for this. But I can’t deny that there is an active market for them. So much so that, to date, I have come across not less than eleven possible contenders. I listed them at the beginning of my previous post.

As I discussed in my previous posts, creating a valid and effective Halachic prenup is a daunting task. The general rule is the more valid the less effective, and vice versa. This paradox behooves us to find a winning formula. This is why we have such a wide selection to choose from. Many creative Halachic minds have weighed into the contest. Some have fallen by the wayside and others seem to be making progress. As I look them over for my “Consumer’s Report”, I sometimes marvel at their creativity as well as their futility.

I began my Consumer’s Report in the previous post. I covered two additional prenups after the BDA prenup which launched this series – Rav Moshe Feinstein, ZT”L and Dr. Rachel Levmore. In this post we pick up where we left off. I first want to briefly cover some of the older, lesser-known candidates and get them out of the way and then get to the more recent innovations.

The lesser known prenups are those that are analyzed in Dr. Susan Metzger Weiss’s undated essay that looks to have been released about the year 2000. Yep, that’s twenty years ago. In case you don’t know who Dr. Susan Weiss is, you can check out my September 2018 blog where I analyzed a blog she wrote in Times of Israel a month earlier. In that post I copied the biographical blurb which said:

Dr. Susan Weiss is the founder and director of the Center for Women's Justice (CWJ), an NGO leading the battle to advance the civil and religious liberties of Israeli women when compromised by state institutions.

Dr. Weiss titles her essay Sign at Your Own Risk. Hm-m-m-m. What does this say to you? You can see the essay HERE.

Dr. Weiss critiques the prenups that were available in those days – including an earlier RCA version – and basically complains that none of them are one-sided enough. She writes on page 9: 

This Article does not analyze which of these contracts better conform to the requirements of Jewish law. This has been done by others. Rather, the Article attempts to analyze the following questions:

Does the prenuptial agreement acknowledge the inequities and abuses resulting from the imbalance of power inherent in the Rules of Law, which characterize Jewish divorce; and do it attempt to realign, correct or at least, address that imbalance? Does it merely corroborate the current status quo? Or worse, does it exacerbate that imbalance and place women at a greater disadvantage?

In short, Halachic validity is not her priority. It looks like even effectiveness is not her priority. Her priority is leveling the playing field between husband and wife for better or for worse. HKBH does not think it’s a good idea for the playing field to be level but Dr. Weiss does. G-d proposes and she disposes.

Truthfully, her analysis does not interest me. Mine does. I am not interested in what the various prenups have in common but rather in what way are they different.

The sample prenups in her essay are printed in the appendix. Evidently, none of these ever earned widespread recognition but some of them were put into operation by the Rabbis who authored them (Rabbis Lookstein, Cohen, Dick, Bleich, etc.). Either the authors never tried to proliferate their versions, they did not have the means to do it themselves, or they weren’t effective enough (or valid enough) to become widespread. They certainly did not have the clout of the BDA (except the RCA version).

So let’s discuss them. As I said, I want to do the shorter ones first. Here we go:

 

RCA Liquidation Prenup (Appendix 6 – page 33)

This one seems to be a predecessor of the current BDA prenup. It works on the same principle of obligating the recalcitrant husband to pay a hefty daily payment to his wife for not delivering a get. The proposed amount is $250 per day with is even 40% more than the current amount 35 years later!

The catch is that instead of calling the money a support payment (mezonos) it is referred to as “liquidated damages”. This is meant to imply that it is very “damaging” for a person to be chained into a dead marriage and unable to move on and so, if one spouse is holding back the other, he or she is inflicting damage. The payments are merely damage payments – supposedly not a knas.

On the plus side, this would actually dispense with the waiver problem and the problems of the wife not being entitled to mezonos since the payment is not earmarked as mezonos. If it is truly a payment for damage, there is no problem of asmachta, either. But the problem is that, in Halacha, a damage is defined as a measurable amount of tangible monetary loss. In cases of personal injury, Chazal allowed for two types of intangible damages – pain and embarrassment – and in each case, they presented a formula on how to assess the monetary value. But for all other types of intangible “losses” such as frustration, ogmas nefesh, vicarious damage (grama) and loss of time or loss of potential revenue (bitul kis), there is no mandatory compensation. Any such compensation, even if ordered by a Beis Din, would be considered a knas. Incidentally, this explains why it is all but impossible for somebody to sue in a Beis Din today for any of these intangible losses. A Beit Din today cannot order knassot.

Back to this initial RCA prenup, clearly they were serving up a knas in disguise which did not have the support of the Toras Gittin and certainly not the Chazon Ish who says that any mandatory payments designed to pressure a husband to give a get is pure knas even if it’s called mezonos.

Understandably, this did not draw the backing of any prominent gedolim. Most likely, even Rabbi Willig wasn’t happy with it, so he needed to redesign it.

 

Rabbi Haskel Lookstein (Appendix 7 – page 35)

This one may be the most Halachically sound because it is so short and sweet and toothless.

All it says is that in case the marriage goes south, and the spouses undergo a civil divorce, each side agrees to cooperate to carry out a Halachic divorce as well. The “penalty” for not doing so – recalcitrance – is to be liable for all the damages and expenses that the other side needs to get the job done. Though it may be implying some intangible damages, it does not set a predetermined price.

I wrote that this may be Halachically sound because if the damages are actual, we can say it is not a knas and nobody is really forcing the husband to give a get. However, I don’t think this agreement would accomplish much in a Beis Din and it seems to be addressing a spouse who anyway isn’t showing up in Beis Din. This brings us to the severe problem of a civil court enforcing this without the blessing of a Beis Din. Aside from the standard prohibition of litigating a case of damages in civil court, if the damages are not authentic, this is indeed a recipe for a get meuseh.

 

Rabbi Shear Yashuv Cohen (Appendix 5 – page 32)

Rabbi Shear Yashuv Cohen, ZL, was the Chief Rabbi and Av Beis Din in Haifa for many years until he passed away in 2016. He was an early Mercaz Harav talmid and a renowned Talmid Chacham. We can view him as a nationalistic Chareidi.

The text that she printed, which is her translation from the Hebrew, a relatively simple agreement with no binding arbitration agreement. There is also no fixed “daily payment” – not “mezonos” and not “damages” – so there is no knas in disguise. There is, however, an unspecified obligation for mezonos.

There are two parts to this agreement. The first part is an immediate and unconditional waiver of rights to the wife’s property which does not seem to relate to whether the marriage is going north or south. Also, it does not relate to the wife’s work income at all. As such, it does nothing to motivate the husband to give a get. I cannot see any purpose in it unless this agreement is designed primarily for a second marriage where these types of agreements are standard.

The second part is the relevant part. It says that the husband agrees to give a get to his wife within 30 days of when she requests it from him in writing. The “penalty” for not doing so is that he must pay her the ketubah immediately in full including all additions. In addition, he agrees to pay her mezonos as if she is a woman who is prevented from marrying (no fixed daily amount).

It looks like it is emulating the Toras Gittin approach except there is no waiver for the wife’s work income - only for her property revenues and this is forfeited from day one! One positive thing is that it does not inflate the value of mezonos and this is more in line with Toras Gittin.

The striking thing is that it makes absolutely no reference to Beis Din whatsoever. This agreement to divorce within 30 days or pay the ketubah and mezonos only makes sense if this demand comes after a Beis Din rules in favor of a get. It can’t work if they haven’t come before a Beis Din.

A woman cannot decide on her own that she is entitled to a get no matter how miserable she is. If she unilaterally leaves her husband, she is a moredes and is not entitled to a ketubah or mezonos! He can nobly state that he is still willing to pay the ketubah and mezonos but if he doesn’t really have to pay it and is accepting to pay it anyway he is accepting to pay an obligation which he does not have.

In other words, he is giving himself a knas.

Also, if it is not truly obligatory, his agreement to pay it anyway is an asmachta. And this document is so brief, it doesn’t begin to neutralize the asmachta issue.

If the couple were already at Beis Din and BD decreed a get without faulting the woman, then Beis Din is perfectly authorized to order payment of the ketubah and mezonos without any prenuptial agreement allowing them to.

All told, I see absolutely no value to this prenup.

It may be a poor translation from the original. But, if not, it is very hard for me to believe that a person as distinguished as Rav Shear Yashuv Cohen, ZL, can author and promote such a prenup.

 

Ariel Rosen-Zvi (Appendix 3 – page 27)

I never heard of Ariel Rosen-Zvi until I saw Mrs. Weiss’s essay. Apparently, he is a law professor at Tel Aviv University.

His prenup is almost identical to the BDA prenup. The only major difference is that it does not include any type of arbitration-in-BD agreement. We can say that since this was written and promoted in Eretz Yisrael where all divorce cases go to BD, the arbitration agreement is superfluous.

After that, it is almost word for word like the BDA. It calls for a more modest fixed amount for mezonos and it does not kick in until after the couple is separated for at least 12 months. Even though it states that the payments are made “without the need to take into consideration the extent of the wife’s income from wages, earnings, properties or any other source”, there is no official declaration of waiver from the husband. With or without a declaration, all of the issues that I previously mentioned apply.

The other issues about not being eligible for mezonos and all of the other issues that were raised in the previous post are all just as applicable with this prenup.

 

Rabbi Judah Dick (Appendix 4 – page 29)

Rabbi Judah Dick, ZL, was a lawyer and Torah scholar and a ranking member of Agudath Israel of America until his passing in 2005.

Most of the prenups I covered until now are full or miniature imitations of the BDA prenup where the husband is obligating himself to some form of expanded maintenance from the time the marriage goes sour. As noted, they generally share the same package of Halachic issues. I assume that Rabbi Dick was aware of all these problems and wanted to try something a little more original. So, here’s where things start getting creative.

In this prenup there is no obligation for support nor any penalty for not giving a get. What there is, is an immediate obligation to the other spouse for the amount of $100,000 (this was drafted in the mid 1980s) in the form of a promissory note. In Halachic terms it is called a hitchayvut or a spontaneous obligation. This obligation takes effect immediately at the time of the marriage but is offset by a signed agreement of the other spouse not to demand the debt unless the marriage goes sour and there is a civil divorce or a decree from Beis Din for a Halachic divorce or a ruling from Beis Din that the marriage cannot be salvaged.

Similar to the Levmore prenup, this one circumvents many of the halachic issues listed in the previous post. It uses the old Chachmei Sefard trick of making an immediate unconditional obligation which is offset by a counter agreement through which to eliminate the problem of asmachta. Also, the payment is not being labeled mezonos so it is not contingent on the wife’s eligibility for mezonos. Lastly, since this only takes effect when the marriage is deemed to be hopeless, it is not so much a catalyst for divorce.

From the perspective of Halacha, this may actually be the best player in the game. But, as we have noted, what it gains in Halachic integrity it loses in practicality.

Not only are there four signatures by each spouse but the draft indicates that it is meant to be certified in a Beis Din. This is not something that is going to be done in some Rabbi’s office or at the chosson tish. It’s a very formal process and doesn’t really work into the hullabaloo of making a wedding.

For this reason and because such an obligation is a heavy load for a chosson to take upon himself at the outset of his marriage, regardless if the wife is held back from claiming the bonus for the time being, it is a very hard sell. Also, even though it may not be itself a catalyst for divorce, it is certainly a sword of Damocles that hangs over the marriage and casts a pallor from day one. Though it may be Halachically sound, it is not a recipe for a healthy marriage.

 

Rabbi J. Dovid Bleich Tenayim Prenup (Appendix 2 – page 25) 

Rabbi J. Dovid Bleich, Shlita is (or was) a senior Ra”M at RIETS. Apparently, his approach, at least initially, was to incorporate the terms of a prenup as part of the text of the customary Tenayim document. Like the BDA prenup, it relies on the financial pressure of a daily supra-mezonos to facilitate a divorce as of the time that the wife is not taking board from her husband – i.e., separation – for any reason. It continues until the time that the woman can Halachically remarry, which is a euphemism for obtaining a get.

Interestingly, this prenup makes no mention of a waiver of the wife’s income. Conversely, the amount of daily “support” that was mentioned in the version printed by Mrs. Weiss was a whopping $200 per day - $6000/ month!

Mrs. Weiss actually praises this approach for two areas where it goes beyond the original RCA (now BDA) prenup: (A) This “mezonos” obligation is not based on the wife’s eligibility for mezonos and, therefore, there is no indication of fault of the wife and (B) Whereas the RCA prenup allows payments until the couple shows up at Beis Din, the Bleich Tenayim prenup allows it all the way up to the get. She then criticizes that it does not go far enough to allow a woman to unilaterally free herself from her husband.

In truth, the two “improvements” that Mrs. Weiss praises actually are strong Halachic liabilities. For Improvement A, if the wife is at fault and not entitled to mezonos, we are back at a self-imposed knas. Rabbi Bleich seems to subscribe to the faulty “Trei Gadya” concept that a person can obligate himself to any amount in the ketubah and label it “mezonos”. I challenged this idea in a previous post. He certainly cannot claim to have the blessing of the Toras Gittin on this approach and, as such, what is he relying on?

For Improvement B, he essentially shoots himself in the foot. The BDA prenup – and the patron Toras Gittin – can allow for this payment to continue “for as long as they are married” since it is based on the concept that the woman is eligible for mezonos and is, consequently, a marital obligation. Rabbi Bleich dispenses with eligibility for mezonos and can’t call it a marital obligation. Thus, he has no choice but to link it to withholding the get. So, not only is he not covered by the Toras Gittin, but he is in direct conflict with the Chazon Ish.

What is more important is that these two “improvements” are benefits to the wife but, just the same, create more risk for the groom. It allows for the wife to be a full-fledged moredes and worse and demand an unconditional divorce plus a fine for any kind of delay. Whatever time the husband spends fighting for Shalom Bayis or his financial or parental rights or any other legitimate delay comes out of his pocket. Likewise, there is no allowance for any incidental delays such as if a get is agreed upon but Beis Din cannot arrange it for another two months or is closed due to Covid restrictions or any other “act of G-d”. Even if the wife decides not to show up that day and reschedules for a few weeks later or the husband falls sick, according to the prenup, he still needs to pay the fine.

Who in their right mind would want to sign such an open-ended obligation and why should they?

So the core of this prenup is just like the BDA prenup and, thus, has almost all of the detriments, except one: there is no problem with the waiver of the wife’s income because there is no waiver. The waiver per se may not be very significant since most women are not such big earners, but it is the basis of the formula of the Toras Gittin so, leaving it out looks like a deviation from the “source”. This also does not mention an absurd “kim li” clause.

Furthermore, in terms of the non-Halachic issue #9 - that these prenups are a catalyst for divorce, this one is at the top of the pile (which may be why Mrs. Weiss is fond of it to some extent). As for issue #7 – coercing the chosson to sign it – since this is not a separate agreement but rather tucked into the text of the Tenayim, it is very likely that the chosson won’t really go over it and really understand what he is signing despite the declaration above his signature. It certainly does not contain a legalese disclaimer that the parties had the opportunity to seek the advice of a Rabbi and legal expert before signing it.                                                                                                                                Sof davar, I see this prenup as even worse than the BDA version.

This concludes the critique of prenup variations that were discussed in Mrs. Weiss’s essay. But I would like to discuss one more before I close this post.

 

Rabbi Shalom Chaim Spira (Per Rabbi Bleich)

Rabbi Shalom Spira is a pulpit Rabbi in Montreal and a research assistant at McGill University Jewish General Hospital. He also prides himself as a loyal disciple of Rabbi J. David Bleich, Shlita. He has a very formal and acute academic mind and writes profusely on medical and Halachic topics. I greatly admire his yiras shamayim and his scholarship.

In 2012 (5772) Rabbi Spira wrote an essay on prenuptial agreements “Written under the general and detailed guidance of Mori ve-Rabbi R. J. David Bleich”. This essay underwent several revisions and the one I have on file is the eight edition from Av 5775 (2015). This edition of the essay is 109 pages long!

The essay is exceedingly critical not only of the BDA prenup but also of the New York and Canada “Get laws”. The New York and the Canada Get Law are secular legal instruments framed and promoted by Jewish get advocates (“askanim”) to empower the secular courts to indirectly pressure a husband to give his wife a get. The respective laws basically say that if a couple is legally (i.e., civilly) divorced but one souse is resorting to external means of preventing the other spouse from remarrying, this can be “taken into account” when the court determines property rights.

In other words, if the couple underwent a civil divorce and the husband has not given a get to the wife, the court can financially penalize the husband for this. The framers and some Rabbanim who supported these laws saw this as Halachically sound since it can be labeled as a penalty not for withholding a get but for not “removing the barriers for remarriage”. Also, it is not a certain penalty but something left to the discretion of the court (albeit not to Beis Din).

Back to Rabbi Spira’s essay, his main concern about the BDA prenup was that the monetary obligation should be invalidated as an asmachta which makes the payment an involuntary knas and consequently brings us to the issue of get meuseh. As for the New York and Canada Get Laws, he, and many others, maintain that it is out-and-out get meuseh l’mehadrin. So much so that he and Rabbi Bleich and perhaps many others maintain that any woman who initiated a divorce and obtained a get in New York State or in Canada (at least in Ontario), has obtained an invalid get meuseh!

Note that even though I did not see a mention of this in his essay, it must be that Rabbi Bleich backtracked from his initial approach of a BDA-like amendment to the standard Tenayim since the asmachta problem is just as relevant in that approach as well.

Despite his criticism, Rabbi Spira presents himself as an advocate for prenuptial agreements and for eradicating the scourge of chained women in Klal Yisroel. He is very dedicated to finding the proper Halachically sound iron clad solution. As such, he proposes a 3-step solution.

Step 1 is for the couple to sign a mutual release from the obligations of the BDA PNA in the event that the couple may have actually already signed one. Needless to say that if they haven’t already signed the BDA PNA, this step is unnecessary.

Step 2 is to sign a document through which they are “shielding” themselves from being subjected to the NY or Canadian Get Laws. I will not dwell on this part and, obviously, it is only necessary for those who “plan” on getting divorced in New York State or in Canada. Of course, nobody who gets married can know for certain where they will wind up down the road so perhaps it is advisable for everybody.

Step 3 is the “kosher” monetary pressure which will inspire [almost] any husband to give his wife a get. His approach is similar to the Levmore approach in that the groom is obligating himself to some exorbitant payment to his wife for every day of their marriage. He justifies this payment by extolling the Trei Gadya concept of our matriarch Rivka. He says all young Jewish women are righteous and virtuous and deserve nothing less than our matriarch received. To this end, he coins a new phrase that, thus far, I have not found in any Halachic literature: Tosefet mezonos.

We have a concept of Tosefet Ketubah which is an additional and usually extravagant one-time payout to the wife at the time of termination of the marriage that is added to the basic measly sum of 200 zuz. We do not have any exorbitant daily allowance (which I guess can be called “mezonos”) in our Ketubos. But we learn from Yitzchak Avinu that we can indeed do such a thing as part of the ketubah. Rabbi Spira wants to implement it for our ketubos and to call it “Tosefet mezonos”.

To make this sound practical, he conjures up a spiritual perk in the form of an “all-ladies’ Yarchei Kallah voyage”. The husband, in his zeal to spiritually (and materially) enrich his wife, is granting her a daily allowance of $1000 to use toward this lofty endeavor. This is totally unconditional and is a “tnai ketubah” which is in effect from the day of the marriage for “so long and only so long as the lady continues to live in domestic harmony with me. On any day that passes on which the lady does not claim – in whole or in part – the tosefet mezonot herein specified, the lady will forgive me for the balance of what she has not claimed on that day that has already passed.”

The understanding is that as long as she does not actually go on this “voyage”, she will be satisfied with whatever mezonos she gets from her husband on any given day and forfeit the rest. Yet, the document does nothing to prevent her from claiming this money and flying out on any given day at her whim. Actually, in his essay description, Rabbi Spira says the document entitles her to actually collect $1000 every day if the husband has it. If he has less, she should just take what he has and forgo the rest, but she doesn’t really have to. The husband will simply write her an IOU (promissory note) for the balance.

Rabbi Spira, who to the best of my knowledge is not yet married, assumes that every Jewish groom should and does feel so secure in the integrity of the newly met woman that he is marrying that there is no reason not to totally trust her to faithfully live up to the agreement and not abuse her unrestricted privilege. Also, that every Jewish male should actually want his wife to handle the household finances whether or not this is what makes them comfortable (each couple has their method) or if she is even capable of it. Certainly, he notes, if, indeed, he suddenly discovers that she is a con-artist, “he can bail out of the marriage without excessive financial loss”.

How reassuring.

All this to prevent our precious bnos Yisrael from any type of siruvei gittin.

Incidentally, there is no mention of a waiver of her earnings but, at $30,000 per month, I suppose it’s a moot point.

So what we have here is actually an impaired version of Dr. Rachel Levmore’s Agreement of Mutual Respect. Both are based on a Takanas Chachmei Sefard system that there is an immediate unconditional obligation to the wife which, supposedly, ends when the marriage ends, i.e., when the wife gets a get. In the case of the Levmore prenup, this obligation is offset by a reciprocal waiver from the wife. In the Spira prenup, it is not really offset at all and, at most, on sheer trust.

The Levmore prenup does not call this obligation “mezonos” at all but it is rather a personal hitchayvut. It is not incorporated as part of the ketubah. In the Spira prenup, this is called “mezonos” or, more accurately, “tosefet mezonos” and is part of the ketubah. As such, it has all the rules of a ketubah and mezonos whereas, if the wife initiates the divorce (which covers most cases of recalcitrance) or is otherwise deemed a moredes, she is not entitled to it at all. This is the meaning of the clause “so long and only so long as the lady continues to live in domestic harmony with me” – i.e., she is not a moredes. So, Rabbi Spira’s prenup will not work where the wife is a moredes and if she leaves the husband on her own. And if it’s the husband who wants out, very rarely is he recalcitrant at all!

One interesting issue that it seems that Rabbi Spira overlooked is what happens if they do not get divorced but the husband dies?

The standard tnai ketubah is that a faithful wife is entitled to mezonos from the husband’s estate until the day she dies as long as she does not remarry. We can assume that this would apply to our matriarch Rivka if Yitzchak would have died first (he didn’t). The clause of “living in domestic harmony” is only meant to exclude a moredes, not that the husband is no longer living. As such, she will certainly quickly consume the entire estate and leave nothing for the heirs!

This issue may not be very significant. It can probably be easily fixed with a clause that terminates the obligation upon the death of the husband.

Sof davar, what Rabbi Spira is suggesting is a very tedious, cumbersome and risk-laden agreement which, when it counts, is not effective in many cases. Hard to believe that any normal chosson would be willing to sign it. Perhaps it has the approbation of Rabbi J. David Bleich, but there do not seem to be any outside endorsements. It may remedy the BDA prenup issue of asmachta but I cannot see any improvements over the Levmore prenup. Actually, since the Levmore prenup makes the payment a straight hitchayvut as opposed to a marital obligation, it’s a lot better.

In my opinion Rabbis Spira and Bleich would be better served by simply endorsing the Levmore PNA. But he doesn’t even mention it, as if it doesn’t exist. Or, so it seems at first glance, but this isn’t really so. Toward the end of his essay, he does describe another similar prenup which seems to be the Levmore prenup. Only he doesn’t credit it to Dr. Rachel Levmore, he credits it to Rabbi David Joseph Mescheloff. But it looks just the same and I am assuming that perhaps Rabbi Mescheloff is a co-author of the Levmore PNA.

Rabbi Spira summarily dismisses the Levmore-Mescheloff PNA precisely because it is built on the Chachmei Sefard concept that I described in the previous post. Rabbi Spira believes that there is some kind of a tartei d’sasrei (catch-22) with implementing the Chachmei Sefard technique. He maintains that the hitchayvut of the Levmore PNA is contingent on the husband being able to deliver a kosher get. Thus, he argues, since the husband cannot give a get before the married and after the marriage the financial obligation coerces him to give a get which isn’t a kosher get, therefore the obligation cannot take effect. I don’t want to get too technical, but I am very skeptical about his catch-22.

Overall, I don’t think this PNA is very practical or useful. To the contrary, just as I previously criticized Rabbi Bleich’s Tenayim prenup as the strongest catalyst for divorce, I feel the same way about this one. Thus, it stands to do more harm than good. The only positive thing is the part about shielding the couple from the New York and Canadian Get Laws. This may be very worth-while.

Before I close this post, it is worth mentioning that Rabbi Spira, in his final section, brings one other type of prenuptial agreement devised by HRHG Yosef Eliyahu Henkin, ZTL. Rabbi Henkin suggests protecting women from agunah-ness by implementing:

a tripartite prenuptial agreement consisting of (a) an ordinance of a Beth Din representing the entire Jewish People to revoke kiddushin in case of an uncooperative husband; (b) the delivery of a get from the husband to the wife at the time of the chuppah, on condition that the get should take effect after the last act of cohabitation between husband and wife, before the husband becomes uncooperative; and (c) kiddushin on stipulation that if neither the Beth Din ordinance nor the get are successful, and still the husband should remain uncooperative in the future, then the initial kiddushin should be nullified.

In other words, at the time of one’s marriage, he should get divorced as well. Only the divorce will take place whenever Beis Din decides it should. In the meanwhile, they should act as if they are married.

Far be it for me to even contemplate holding a candle to the halachic prowess of HRHG YE Henkin, ZTL so this needs to be evaluated more on Hashkafic grounds than Halachic ones. Not only would such a system be used to mattir agunos but it would certainly be applied to retroactively clean adulterous affairs and mattir mamzerim. This would lead to a total breakdown of the kedusha of marriage and destroy more families than it will save. Needless to say, this approach did not gain a foothold in the chareidi world. As a post script, Rabbi Spira notes that it seems that Rav Henkin himself retracted his idea.

This basically concludes my Consumer’s Guide. I have critiqued ten out of eleven of the PNAs on my list and added Rav Henkin’s. There is only one more to discuss, and I intentionally saved it for last and what should be the final post in this series.

אשר עשה א-לקים את האדם ישר והמה בקשו חשבנות רבים.

Stay tuned…