{"id":28895,"date":"2012-08-23T02:01:56","date_gmt":"2012-08-23T02:01:56","guid":{"rendered":"http:\/\/www.ou.org\/life\/?p=28895"},"modified":"2017-02-09T05:17:30","modified_gmt":"2017-02-09T10:17:30","slug":"ending-agunah-problem-as-we-know-it-shlomo-wiessmann","status":"publish","type":"post","link":"https:\/\/www.ou.org\/life\/relationships\/ending-agunah-problem-as-we-know-it-shlomo-wiessmann\/","title":{"rendered":"Ending the Agunah<\/em> Problem as We Know It"},"content":{"rendered":"

One of the great challenges facing our community is the problem of the modern-day agunah<\/em>: women who remain trapped in marriages that have already functionally ended, because their husbands refuse to grant them a get<\/em>, a Jewish bill of divorce.<\/p>\n

But over the course of the past 20 years, one particular solution \u2013 the Beth Din of America prenuptial agreement – has emerged as the most promising preventative solution to the agunah<\/em> problem. \u00a0It has been so successful that it carries the promise of effectively ending the agunah<\/em> problem as we know it. \u00a0This article is an attempt to explain the importance of the prenuptial agreement, and argue for its wider adoption among all segments of the observant Jewish community.<\/p>\n

The Agunah<\/em> Problem<\/strong><\/span><\/h3>\n

\"\"Until relatively recently in our history, the agunah<\/em> problem was limited to cases of women whose husbands were lost at war or at sea, and who could not remarry without halachically<\/em> acceptable evidence of their demise. \u00a0Today the term \u201cagunah<\/em>\u201d has come to refer, more often, to women whose husbands refuse to give a get<\/em>, a Jewish bill of divorce, even after their marriage has functionally ended.<\/p>\n

Although a get<\/em> is ultimately delivered in the vast majority of divorces in our communities, in many instances the giving of the get<\/em> itself becomes a contested matter between a divorcing couple. \u00a0While it is true that a get<\/em> may also be withheld by a woman (as we shall see), because of a number of sociological and halachic<\/em> considerations, the vast majority of cases in which a get<\/em> has not been forthcoming have involved recalcitrant husbands, rather than wives. \u00a0Without a get<\/em>, a woman may not remarry and the children born from any subsequent unions bear the stigma of mamzerut\u00a0<\/em>(offspring of a relationship forbidden by the Torah).<\/p>\n

The anguish experienced by spouses who are not assured their husbands will cooperate with the get<\/em> process is heartwrenching. \u00a0Some women in this position were victims of domestic violence in their marriages, and despite their best efforts to the contrary, remain wedded indefinitely and against their control to their abusers. \u00a0They are robbed of the autonomy and freedom necessary to begin new relationships and attempt to rebuild their lives.<\/p>\n

But the plight of the modern-day agunah<\/em> should capture our attention not only because we have a responsibility to ameliorate the suffering of long-term agunot<\/em> and prevent the occurrence of more such cases going forward, but also because the potential for get<\/em> recalcitrance dramatically affects the balance of power in quite a number of divorce negotiations.<\/p>\n

Divorce is a messy prospect. \u00a0Two people who, until now, had ordered their social and economic affairs based on the proposition that they would remain together, are forced to negotiate a separate existence. \u00a0Ideally, a husband and wife wishing to separate negotiate an agreement with the help of their rabbis, their lawyers, or a mediator, that involves mutual compromise and allows both of them and their children to move on with their lives. \u00a0But that does not always happen, and sometimes the parties engage in a protracted and highly litigious ordeal (ideally in beit din<\/em>, a rabbinical court but, too often, in a secular court), with each spouse fighting intensely over money and child custody and visitation arrangements.<\/p>\n

In the very worst cases, a recalcitrant spouse may put a price tag on a get<\/em> and use it to extort large sums of money. \u00a0But even short of that, a husband might threaten to withhold a get<\/em> until his wife meets certain demands that he genuinely views as reasonable. \u00a0Sometimes, the get<\/em> becomes a potent tool to extract financial or other concessions in divorce negotiations, beyond those that a disinterested third party would judge to be reasonable. \u00a0A woman may be so desperate for a get<\/em> that she will consider agreeing to an unfair financial settlement, or custody and visitation terms that are not in the best interests of the children. \u00a0In some extreme cases, safety concerns may require supervised visitation arrangements, and the use of a get<\/em> to obtain unsupervised visitation can be downright dangerous.<\/p>\n

Halachic<\/em> Attitudes Regarding Get<\/em> Recalcitrance<\/strong><\/span><\/h3>\n

On a practical level, a husband who can threaten to withhold a get<\/em> possesses unfettered control in determining the outcome of his divorce dispute. \u00a0This lack of balance is untenable, and stands diametrically opposed to the Torah\u2019s vision of how irreconcilable conflicts must be resolved \u2013 through the determination of impartial dayanim<\/em> (judges) in a system of conflict resolution that is entirely neutral. \u00a0No civilized society, let alone a Torah society founded on a keen sensitivity for due process and justice, can tolerate a system where one side of a dispute gets to call the shots.<\/p>\n

This means that, notwithstanding the supreme importance of shalom bayit<\/em>\u00a0(marital harmony) and preventing marital conflict and divorce, when a marriage has failed beyond any hope of reconciliation, and a wife unambiguously expresses her desire to be divorced, the husband has a moral obligation to deliver a get<\/em> to his wife. \u00a0Rabbi Yosef Eliyahu Henkin, one of the foremost halachic<\/em> decisors in the United States in the 20th<\/sup> century, put it this way: \u00a0“One who withholds a get<\/em> because he desires money for no just cause is a thief. \u00a0Indeed, he is worse than a thief as his conduct violates a sub-prohibition (abizrayhu<\/em>) related to taking a human life.”<\/p>\n

Throughout the ages, Chazal<\/em> have interceded and introduced rabbinic solutions when people have sought to take advantage of the halachic<\/em> system of marriage and divorce. \u00a0At the most basic level, Torah law grants a husband full control over the divorce process. \u00a0He is free to unilaterally divorce his wife, and a get<\/em> may only be given by a husband “meritzono hatov<\/em>,” of his own free will, and may not be coerced.<\/p>\n

So to protect women from the sudden dissolution of their marriages with no economic protection, the rabbis (and in some cases, the Torah itself) provided a financial incentive to prevent unilateral divorce, in the form of the ketuba<\/em>. \u00a0In the tenth century of the common era, Rabbeinu Gershom altogether removed a husband\u2019s power to divorce a woman without her consent. \u00a0And various Rishonim, such the Rambam and Rabbeinu Tam, discuss rabbinically sanctioned methods which batei din<\/em>\u00a0may utilize in certain circumstances to compel a husband to divorce his wife, such as social ostracism and, sometimes, even physical compulsion.<\/p>\n

But if Chazal<\/em> were successful in curbing many of the potential abuses of the system, some of their methods simply cannot be implemented in today\u2019s open society. \u00a0In pre-Emancipation Jewish communities where authority was centralized and individuals could not easily relocate, social ostracism was a harsh punishment, and a recalcitrant husband could not easily escape the consequences of his bad acts. \u00a0Today, we suffer from a multiplicity of batei din<\/em> and a lack of communal cohesion. \u00a0If one shul denies privileges to a recalcitrant husband, he may be welcomed by the shul down the block. \u00a0If not, he might move to another community. \u00a0In too many cases, unfortunately, he is simply immune from communal pressure because he has left the observant community altogether.<\/p>\n

In a nutshell, this is the problem of the modern-day agunah<\/em>: \u00a0a husband\u2019s unilateral ability to deny a divorce to his wife, combined with a lack of communal authority to regulate the behavior of individuals who violate Torah norms and the frequency and contentiousness of divorce in our contemporary society, creates a perfect storm that can result in the use of the get<\/em> as an improper tool for leverage or revenge.<\/p>\n

The Prenup<\/strong><\/span><\/h3>\n

\"PrenuptialWhile numerous solutions to the agunah<\/em> problem have been proposed, only one has received the backing of many prominent halachic<\/em> authorities and consistently lived up to its promise of preventing situations of get<\/em> recalcitrance. \u00a0This is the Beth Din of America prenuptial agreement, which was first developed in the early 1990s by Rabbi Mordechai Willig in consultation with halachic<\/em> and legal experts. \u00a0It consists of a mechanism that authorizes a beit din<\/em> to determine when a get<\/em> should be given, and empowers the beit din<\/em> with the necessary tools to ensure that its rulings will be followed.<\/p>\n

The prenup, which is available at www.theprenup.org<\/a>, is signed by a couple prior to their wedding, and provides that in the event of an impending divorce, either spouse may require the other to appear before the Beth Din of America. \u00a0Under the agreement, if the couple no longer lives together, the husband becomes obligated to provide monetary support to his wife at a fixed, daily rate (which adjusts for inflation) for so long as they remain married under Jewish law. \u00a0The default daily rate is $150, which comes to approximately $54,000 per year, but may be adjusted by a couple at the time they sign the agreement to reflect their actual standard of living. \u00a0Once the beit din<\/em> orders the daily support to be paid, it becomes a legal obligation, enforceable in secular court.<\/p>\n

The solution is as elegant as it is effective. \u00a0Under the terms of the prenup, a husband is not fined or forced to give his wife a get<\/em> (either of which could potentially harm the validity of the get<\/em> as a matter of halacha<\/em>). \u00a0The husband is free to decline to give a get<\/em> and to remain married to his wife for as long as he wishes, provided he financially supports her pursuant to the prenup until he is prepared to end the marriage. \u00a0The agreement provides a clear incentive for the husband to give the get<\/em> once it is clear the marriage is over, but is not halachically<\/em> overreaching.<\/p>\n

What is most remarkable about the prenup is that it actually works. \u00a0It has been utilized in scores of cases before the Beth Din of America, and has consistently prevented the use of the get<\/em> as a tool for improper leverage or extortion. \u00a0It has worked dramatically to produce a get<\/em> even in highly contentious cases, where couples have bitterly litigated all the other issues on the table. \u00a0Most often where there has been a prenup in place, the Beth Din has not even needed to begin formal proceedings to award support under the arbitration provisions of the agreement. \u00a0The mere existence of the prenup, and the husband\u2019s knowledge that it is an enforceable document, has convinced the husband that he has nothing to gain by delaying the delivery of the get<\/em>.<\/p>\n

The Challenge Going Forward<\/strong><\/span><\/h3>\n

In my position as menahel<\/em> (director) of the Beth Din of America, I speak regularly with women seeking gittin<\/em> from their husbands. \u00a0Their stories span the spectrum of the modern-day agunah<\/em> experience. \u00a0Some already obtained their civil divorces, but their husbands are withholding gittin<\/em> for better financial or custody deals, or simply out of spite. \u00a0Others are in the midst of ongoing, bitter divorce contests, and live with the uncertainty of when or whether they will receive their get<\/em>, or have been explicitly told by their husbands that the get<\/em> will be an issue.<\/p>\n

While the marriages of some of these women predate the introduction of the prenuptial agreement in the early 1990s, many do not. \u00a0They had either not heard of the prenup, or they dismissed it as unnecessary. \u00a0But in each one of these cases, the simple act of signing the prenup would have averted the potential for tremendous human suffering, not to mention the chillul Hashem<\/em>\u00a0(desecration of G-d’s name) that results from their terrible stories. \u00a0All the time, I hear women tell me that they wish they had insisted on signing the prenup.<\/p>\n

So why is it that this solution, 20 years after its introduction, has not been universally adopted? \u00a0To be sure, the most important prerequisite to any solution to the agunah<\/em> problem is its halachic<\/em> viability. \u00a0A halachically<\/em> problematic solution to a halachic<\/em> problem is no solution at all. \u00a0In particular, any mechanism that incentivizes the giving of a get<\/em> must not unwittingly create gittin<\/em> that are invalid because they have been improperly coerced. \u00a0But the prenup has been unconditionally approved by a wide range of rabbinic authorities, particularly because it was intentionally structured in a way that poses no risk of improper get<\/em> coercion.<\/p>\n

Among others, Rabbis Ovadia Yosef, Zalman Nechemia Goldberg, Gedalia Dov Schwartz, Asher Weiss and Chaim Zimbalist have all endorsed the use of the prenup. \u00a0In 1999, a group of leading roshei yeshiva<\/em> at Yeshiva University, including Rabbi Hershel Schachter, issued a statement endorsing the use of halachic<\/em> prenuptial agreements like the Beth Din of America prenup. \u00a0In 1993 and 1998, the Rabbinical Council of America passed resolutions encouraging the use of prenuptial agreements such as the prenup, and in 2006 the RCA passed a resolution declaring that rabbis should not officiate at a wedding where a proper prenuptial agreement has not been executed.<\/p>\n

For the most part, the obstacles to wider adoption of the prenup have consisted of cultural and practical concerns. \u00a0Some are reluctant to advocate the use of new tools, particularly in the context of the age-old and sacred traditions that surround the Jewish wedding. \u00a0Others have argued that the joy of a young couple about to be married should not be upset by conversations about divorce and the agunah<\/em> problem that would inevitably result from discussions about signing the prenup.<\/p>\n

But surely the promise of preventing situations of <em>get<\/em> recalcitrance\u00a0justifies the introduction of this modest innovation in Jewish life. \u00a0And even at the happiest times of our lives we are duty-bound to plan realistically for the future and to address contingencies that we do not anticipate happening. \u00a0At a wedding we sign a ketubah<\/em>, even though it is an economic document that addresses worst case scenarios such as death and divorce. \u00a0When we buy a new house we purchase homeowner\u2019s insurance, even if we do not ever expect our homes to burn down, Heaven forbid. \u00a0New parents buy life insurance and vaccinate their babies, even if they do not want to think about topics like death or disease, r\u201dl.<\/p>\n

Consider, also, that the claim that signing a prenup disturbs the joy of premarital planning is overstated. \u00a0When I got married, I knew that the vast majority of my friends had signed a prenup prior to their weddings, and my wife and I treated it as just another pre-marital task that needed to get done. \u00a0As time goes on, and as the prenup becomes accepted among more and more segments of the Orthodox Jewish community, the argument that it conjures negative associations will become increasingly less compelling. \u00a0Signing a prenup will become as routine and expected as signing a ketubah<\/em>, buying insurance, or vaccinating our children.<\/p>\n

Introducing the prenup to couples prior to their weddings carries one more advantage: it provides a valuable opportunity to teach them a critical lesson about healthy marital relationships. \u00a0In its essence, the agreement represents a commitment to selfless behavior, a promise from a prospective husband to his wife-to-be that he will treat her with dignity not only when it benefits him, but always. By signing the prenup, a chattan<\/em>\u00a0(groom)\u00a0<\/em>communicates to his kallah<\/em>\u00a0(bride) that even in the worst of circumstances he will not act indecently to exploit advantages he may possess. \u00a0In a society where marital strife affects too many households and where divorce is an epidemic, this is a worthwhile message. \u00a0There is no better time to sign a document that provides the basis for a marriage that is grounded in love and respect than in the period preceding a wedding.<\/p>\n

For those who have felt compelled to take action to address this tragic problem, but who have sat on the sidelines until now because no ready solution appeared possible, the 20th<\/sup> anniversary of the introduction of the prenup is a good time for a reassessment of its virtues. \u00a0An idea that two decades ago may have seemed like a fine scheme in theory has now withstood the test of time and represents an effective, long-term solution to the agunah<\/em> problem. \u00a0To the extent that the prenup is signed by more and more couples and eventually becomes a prerequisite to marriage in our communities, we have the opportunity to virtually obliterate this problem from our midst.<\/p>\n

This article is reproduced with permission from Viewpoint\u00a0Magazine, National Council of Young Israel, Spring, 2012. It is part\u00a0of a larger feature section on Jewish marriage, which may be accessed\u00a0at\u00a0www.youngisrael.org<\/a>.<\/em><\/p>\n

\n

For more information about the prenup and for printable forms\u00a0of the prenup, go to:\u00a0www.theprenup.org<\/a>.<\/strong><\/p>\n

The Beth Din of America<\/a> is a rabbinical court that serves\u00a0the entire spectrum of the Jewish community. \u00a0Its services include\u00a0arranging Jewish divorces, arbitrating and mediating commercial and\u00a0communal disputes, and the resolution of halachic<\/em> personal status\u00a0issues.<\/strong><\/p>\n

Rabbi Shlomo Weissmann <\/em>is the\u00a0Director of the Beth Din of America.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

While numerous solutions to the agunah<\/em> problem have been proposed, only one has received the backing of many prominent halachic<\/em> authorities and consistently lives up to its promise of preventing situations of get<\/em> recalcitrance.<\/p>\n","protected":false},"author":823,"featured_media":55429,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[17],"tags":[],"class_list":["post-28895","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-relationships"],"yoast_head":"\nHalachic Prenup: Ending the Agunah Problem as We Know It - OU Life<\/title>\n<meta name=\"description\" content=\"Many solutions to the agunah problem have been proposed, only 1 is been backed by many prominent halachic authorities & consistently prevents recalcitrance.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.ou.org\/life\/relationships\/ending-agunah-problem-as-we-know-it-shlomo-wiessmann\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Halachic Prenup: Ending the Agunah Problem as We Know It - 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