Focus on Issues: Newly Packaged Prenuptials Encourage Jewish Court Divorces

When Ben and Shafrira Wiener were planning their wedding three years ago, they decided to sign a prenuptial agreement.

This prenuptial agreement was not intended to protect their assets from each other in case they split.

It was a newly developed document that, when signed by both of them, would compel them to go to a religious court in the event that they wanted to divorce.

The prenuptial agreement was developed by a prominent Orthodox decisor of Jewish law, Rabbi Mordechai Willig, in response to two trends: an increasing number of Orthodox men who are keeping their wives chained to dead marriages by refusing to grant them a “get,” or religious divorce, and the growing number of Orthodox women and men who turn to civil, rather than religious, courts to settle their differences.

For supporters for the prenuptial agreement, the problem is that it is not widely used in the Orthodox world.

Although it received the endorsement of the Rabbinical Council of America in 1993, only about half of the RCA’s nearly 1,000 member rabbis urge marrying couples to sign it, Rabbi Basil Herring said.

Herring, who is promoting the use of the agreement, is coordinator of the Orthodox Caucus, an organization of Orthodox rabbinical and lay leaders working with the centrist Orthodox community’s major institutions on issues of common concern.

The group includes the RCA, the Union of Orthodox Jewish Congregation of America and Yeshiva University.

“We think 100 percent of the rabbis should be using the prenuptial agreement, but the only way for that to happen is for people to request it,” Herring said.

“It’s new and different, and many haven’t used these things in the past,” he said, adding that those rabbis who do use it “tend to be younger.”

Part of the problem in getting the prenuptial agreement widely used has been that it was in the form of a computer printout, the rabbi said.

It was not very attractive and was regarded by some rabbis as an afterthought – not as essential as the betrothal document, called “tena’im,” or the wedding contract, the “ketubah,” which are both signed immediately before a wedding.

To make it more appealing, the Orthodox Caucus put together a specially designed kit, using heavy paper in shades of teal with embossed gold-foil stickers, containing all the marriage-related documents endorsed by the RCA; the prenuptial agreement; the tena’im; and the ketubah.

The kit is being sent to rabbis who request it through the RCA, which has sent out about 400 since it was published three months ago. It is also now being offered to Jewish bookstores, where it will retail for $18, Herring said.

But to have the prenuptial agreement signed by every Orthodox couple getting married requires more than an attractive certificate, Herring said.

It requires “recognition of some of the realities and problems out there. There are so many cases of recalcitrant husbands who abuse the system in ways that were not anticipated centuries ago that we have to come up with contemporary responses.

“We’re reached the point in the Jewish community where women as well as men understand that we cannot expose ourselves to future blackmail.

“With the increasing breakdown of so many marriages there has to be thought given to properly terminating them in a way that does not disadvantage women in particular,” he said.

When an Orthodox couple wants to divorce, both parties are supposed to go to a “beit din,” or religious court.

But the reality in recent years has been that a growing number of men have refused to go to a beit din and sign a get, which only a man can grant according to Jewish law.

The result has been that thousands of women – no one is sure exactly how many – have become “agunot,” or women chained to dead marriages without the bills of divorce they require to date and remarry.

Although there are some tools – from shutting a man out of the life of the community to beating him up – that have been used in the past by rabbinic authorities to try to convince a man to give a divorce, they are ineffective or not widely used today.

Some in the centrist Orthodox community tried to find a solution that would protect women from becoming agunot, and also be accepted by Orthodox rabbinical authorities.

The first prenuptial agreements acceptable under Jewish law were used by a few Orthodox couples about a dozen years ago, but were not widely accepted by rabbinic authorities.

The Conservative movement has been using a prenuptial agreement since the late 1950s, said Rabbi Kassel Abelson, chairman of the movement’s Committee on Jewish Law and Standards.

The Reform movement, which does not regard Jewish law as binding, does not require a get to dissolve a marriage.

The Reconstructionist movement urges divorced people to have a Jewish divorce before remarrying, though many of the movement’s rabbis will officiate at the remarriage of someone who has only a civil divorce decree.

In 1993, after more than a decade of debate on the issue, the RCA endorsed the prenuptial agreement developed by Willig, who teaches at Yeshiva University and leads a congregation in the Riverdale section of the Bronx.

The concept of using prenuptial agreements to prevent women from becoming agunot is a good one, said Rivka Haut, an advocate for Orthodox women unable to get their divorces.

But she expressed reservations about “the ambiguous wording” of the agreement designed by Willig.

It permits a man and woman about to step under the wedding canopy the option of including or excluding in their prenuptial agreement three specific issues for a religious court to decide: financial disputes; division of assets; and child support, visitation and custody.

A man’s decision to sign a get should not be dependent on resolution of any of those issues, said Haut, and if a woman agrees to include the three clauses in the prenuptial agreement, she could be signing away her right to have those issues decided by a civil court.

Herring of the Orthodox Caucus agreed that a get should be given apart from any of the other issues between a divorcing couple, but that resolution of the other issues is often demanded by a man before he agrees to give a get.

“This prenuptial agreement recognizes reality. We’re saying, `Let’s not stick our heads in the sand,'” Herring said.

Ben and Shafrira Wiener, who are now the parents of toddling twin girls, are unequivocal in their certitude that signing the prenuptial agreement was the right thing to do.

“I hope that it doesn’t benefit me per se, but Jewish women and couples owe it to themselves to sign this,” said Shafrira, who stays at home in Teaneck, N.J., with their daughters.

Said Ben, who is in both rabbinical school at Yeshiva University and law school at Columbia University in New York City: “We both felt this was part of the commitment of love.”

“I hope that in 20 years the question is not `Did you sign a prenuptial agreement,’ but `Why didn’t you sign?'” he said, adding, “It should be just another document you sign without even thinking about it.”