By Michelle Greenberg-Kobrin
Religious prenuptial agreements attempt to anticipate issues that arise at the end of Jewish marriage. These issues, which include the granting of a get, occur because of the contractual nature of halakhic marriage. Unlike secular marriage, which is a status imposed on the parties by the state (and can therefore be removed by the state), halakhic marriage begins when husband and wife enter into a contractual relationship in which they accept certain mutual responsibilities, and therefore can only be brought to an end by a contractual recognition that those obligations have ceased — the get.
Although the various prenuptial agreements attempt to address a problem that is halakhic in nature and are drafted in order to fulfill all halakhic parameters, these contracts are essentially secular. As with every contract, their significance lies in whether the parties can rely on a court to compel performance of the parties’ obligations or to provide another form of compensatory relief if a party does not fulfill his or her obligations. In order to assist in addressing the problem of get, prenuptial agreements have to be enforceable as legal documents.
There are various types of prenuptials, ranging from simple arbitration agreements to promissory notes between the parties with executed releases. This discussion will focus on the prenuptial agreement that has been disseminated by the Orthodox Caucus, endorsed by the Rabbinical Council of America, and is the most widely used in the Orthodox world. The prenuptial consists of several separate documents. One is an arbitration agreement which requires the couple to appear before a beit din when the couple no longer lives together. Another is an agreement for a stipulated sum of spousal support the husband will pay to the wife for every day after the effective end of marriage that the husband does not give the wife a get. Granting the get would end this financial obligation, as would the wife’s refusal to appear before a beit din. If the couple wishes, they can also execute a second spousal support agreement from the wife to the husband, which would require the wife to support the husband if it is she who is the recalcitrant party.
Prenuptial agreements create a complicated situation where contractual obligations, ordinarily enforceable in secular law, are formed within the context of a religious document. Although secular courts that have addressed issues surrounding halakhic divorce have tended to brush over the question of constitutionality in an attempt to avoid an inequitable solution, courts are obviously reluctant to involve themselves in situations requiring jurisdiction over religious matters. Thus, these agreements have to be drafted in order to avoid the need for courts to involve themselves in questions concerning religion. In addition, because courts will look to see if the agreement was coercive or unfair in any way, the prenuptial agreements need to be entered into carefully and thoughtfully.
Keeping this in mind, there are a few steps one can take to increase the enforceability of these documents:
1. Read and discuss the prenuptial. Before the wedding, the couple should discuss the prenuptial and its significance. Although the prenuptial is similar to the ketubbah in that it addresses issues relating to the end of marriage, many couples are uncomfortable with raising the issue of the prenuptial, given that in our society entering into a prenuptial has connotations of distrust and lack of commitment to the marriage. An open conversation about these issues can dispel some of these notions and build a basis for trust and communication in a marriage. Such a discussion will also indicate to a court that the parties gave careful consideration to the prenuptial before they entered into it.
2. Sign the prenuptial in advance of the wedding. In order for a contract to be enforceable in secular law as well as in halakhah, contracts must be entered into without duress. Thus, if one party asks the other to sign the prenuptial on the day of the wedding, some courts might see, for example, the presence of the waiting guests as a form of duress — which would invalidate the prenuptial. The Orthodox Caucus prenuptial contains a clause whereby the signatories agree that they have been given an opportunity to seek rabbinic and legal counsel, which may not be possible if the agreement is executed shortly before the wedding.
3. Have the prenuptial reviewed by halakhic and legal advisors. Prior to the wedding, the parties should discuss the halakhic nature of the prenuptial and what it does and does not address with a halakhic advisor. As the prenuptial is a legally binding agreement, discussion with a lawyer may be appropriate, especially if the parties plan to have the beit din address monetary and custody issues.
4. Opt in or opt out. The prenuptial agreement contains three optional provisions, and the parties should clearly mark the document to indicate which provisions they want included. These provisions concern the scope of the matters the beit din is authorized to adjudicate. The first provision authorizes the beit din to decide any monetary disputes (in addition to those relating to get, ketubbah, tenaim, and the prenuptial agreement itself) that may arise. If the parties choose to authorize the beit din to decide monetary disputes, an additional provision allows the parties to specify that such disputes will be decided utilizing the laws of a particular state, with certain exceptions. A third provision authorizes the beit din to decide issues of child support, visitation, and custody. However, many states, including New York, reserve the right to overturn any decision regarding children and their support, even one reached by mutual agreement of the parties, if the state feels that it is not in the best interests of the child.
5. Fill in the name of a beit din. The prenuptial agreement may contain a space to specify the beit din before which one wishes to appear in case of divorce, and a beit din should be specified. Much of the difficulty surrounding a get occurs in the selection of a beit din. In order to ensure that the beit din will be available if needed, it is best to specify an institutional beit din rather than the names of individuals. If a beit din is not specified, a secular court may become entangled in determining an appropriate beit din, raising complicated constitutional questions which might make it difficult to enforce the arbitration agreement.
6. Fill in the amount of spousal support. As part of the husband’s obligation towards the wife (and the wife’s towards the husband, if the parties completed such an agreement), he commits himself to support her from the time the couple is no longer living together until a get is given or she refuses to appear before a beit din. The parties need to agree to an amount that is a reasonable approximation of the daily cost of living and should specify that amount in the prenuptial. For halakhic reasons, this amount cannot be so great as to constitute a penalty for not giving the get, and as such, a halakhic advisor may suggest a recommended range.
A final word: one should read the prenuptial carefully. Although the prenuptial agreement has been drafted with an eye towards problems that might arise if it is adjudicated in court, many potential problems can be avoided by a careful reading by the couple, to make sure the couple understands what they are signing and have completed all the required information.
Michelle Greenberg-Kobrin is an attorney at Arnold & Porter.