“I’d never get married without it,” said Brocha Benamou, 24, a Lubavitcher Hasida from Hollywood, Florida, when asked about “the prenup,” as it is known. “When you buy a house, you buy fire insurance. Right?”
Manhattanite Devorah Kessler, 35, and her husband signed “the prenup” before they got married two and a half years ago, and to make sure their wedding guests knew it, the rabbi made an announcement under the chuppah. What moved Devorah to sign were the consequences, if she didn’t, that could befall her future children. “I would never want to bring a child into the world who would be at a disadvantage in the Jewish community,” said the special education teacher.
Brooklyn acupuncturist Joey Siegel, 32, and her husband got married in January 2015; they had yet another reason for signing. “I support the cause,” said Joey. “But really, I just did it because you wanted us to.” (Full disclosure: Joey’s my daughter.)
No one knows the number of couples who are signing this particular version of the prenuptial agreement. It’s a binding arbitration agreement aimed at protecting a Jewish woman from becoming an agunah, a chained woman.
“There’s no central registry,” said Rabbi Shlomo Weissmann, executive director of the Beit Din of America, the religious court that adjudicates more Jewish divorces than any other in the country. “But anecdotally, there appears to have been a big increase in awareness and usage in the last few years.”
According to halakha, Jewish law, if a marriage breaks down, a husband must give his wife a get, a Jewish divorce, so that she may remarry. If he refuses, she becomes an agunah. The prenup is designed to discourage a man from turning his wife into an agunah—and to protect a woman from becoming a victim of get extortion to buy her way out.
Historically, an agunah was a woman whose husband was lost at battle or at sea, with no witnesses to verify his death. But in modern times, and in dramatically increased numbers with the huge rise in divorce rates, an agunah is a woman whose marriage is effectively over, her husband’s whereabouts are known, but he just refuses to give her a get. A rabbinic court can’t force him to give it, because, based on a passage in Deuteronomy, he has to give it of his own free will.
A landmark survey run by Washington-area agunah activist Barbara Zakheim revealed that, between 2005 and 2010, 462 women in the United States and Canada were agunot. The survey surely underestimated the true number of chained women, for two reasons. Data were obtained from Jewish social service agencies that offer assistance to agunot; some serving the most religious, haredi women, refused to cooperate with the study. Further, some women, to obtain a get and move on, agree to extortionate demands without turning to social service agencies for help; therefore, they were never counted. Nevertheless, the striking results of the study, which were widely reported, galvanized attention.
A barrage of media exposure over the past 15 years has heightened awareness of the festering problem. From the New York Times and The Wall Street Journal to NPR; from The Sopranos to Dr. Phil. My documentary, Women Unchained, produced with Leta Lenik and released in 2011, has been featured in Jewish film festivals, on Jewish TV stations, and in special screenings on four continents. All have surely done their parts. And press attention to the agunah problem reached a fever pitch in October 2013, when New York and New Jersey rabbis were arrested on conspiracy and kidnapping charges in connection for a plot to beat a get out of a recalcitrant husband.
If a woman without a get decides to move forward with her life and remarry civilly, a child born of that union will be stigmatized in the Orthodox world and in Israel as a mamzer, illegitimate, and severely limited in his or her marriage options. No such curse applies to the future children of the get withholder though, because, technically, a man can have more than one wife. Think: Jacob and Leah, and Rachel, and Bilhah, and Zilpah.
Even in the haredi world, a growing number of rabbis, as well as some of the rank and file, believe that the best solution to the problem of get refusal is a preventative one.
“Each time the problem makes waves,” said Weissmann, “people think, what’s the solution?”
That’s where this special prenup comes in.
The earliest prenuptial agreement to prevent get refusal was developed by rabbis in Morocco in the 1950s and endorsed in concept by the chief rabbi of Jerusalem in the 1980s. In the early 1990s, Rabbi Mordechai Willig developed an American version at the behest of the Rabbinical Council of America, the main association of Modern Orthodox and centrist Orthodox rabbis, with which the Beit Din of America, a rabbinic court, is affiliated. A decade later, Israel came out with its own version, known as the Agreement for Mutual Respect.
The BDA agreement contains two simple provisions: First, if either spouse requests, the couple agrees to appear before a panel of dayanim, judges, and to abide by their decision regarding the get. Second, if the couple separates, the husband’s obligation under Jewish law to support his wife will be set at $150 a day, indexed to inflation, from the date he receives notice of her intention to collect, until the time that they are no longer married under Jewish law—i.e., until he gives a get.
The prenup says nothing directly about a get, as that could be interpreted as compromising a man’s free-will decision to give it; the man must give the get freely—although in the 12th century, Maimonides created a loophole that allowed rabbis to beat a man to help him realize that he willed his wife her freedom. Instead, the prenup just enforces the husband’s obligation, as set forth in the ketubah, the Jewish wedding contract, to support his wife. Basically, the prenup imposes a monetary cost to a husband’s decision to stay married to her.
But if the wife fails to appear in beit din or abide by the court’s decision, the husband’s support obligation ends.
“It’s a rock-solid solution,” said Rabbi Yona Reiss, head of the religious court of the Chicago Rabbinical Council and past director of the Beit Din of America. The prenup, said the Yale-trained lawyer, “has produced a get in a timely fashion in 100 percent of the cases where it was duly executed.”
Before it was challenged in civil court, however, some critics contended that if the prenup worked, it was only because the men who signed it would have given a get without a dustup anyway. Doubts about the prenup’s ability to withstand a legal challenge were significantly allayed in February 2013 when a Connecticut court affirmed its constitutionality. In the opinion of the judge, the BDA prenup, in terms of enforceability, was no different than a secular contract.
“It’s a huge win for the Orthodox Jewish world,” said Dr. Rachel Light, the agunah in the case, who received a significant award and a get.
“The prenup is a very good and important solution, and no one should get married without it,” said Audrey Trachtman, longtime board member of the Jewish Orthodox Feminist Alliance and a former head of the group’s Agunah Task Force. “But it’s not the only solution.”
The prenup, for all its success, can only help a woman who has one. And even among those women, the complete elimination of get extortion is unlikely, because, as Reiss admits, “you can always find a man so demented that no matter how much he’ll suffer as a result of not giving a get, he won’t give it anyway.”
To free agunot, women’s rights activists and some Orthodox rabbis are pushing for the development of other halakhic solutions. A new Orthodox rabbinical court, the International Beit Din, currently is working toward that goal. In the past, however, similar attempts generated fevered controversy and ultimately failed to win acceptance. Rabbi Emanuel Rackman, a leading light of Modern Orthodoxy, created a beit din in the 1980s to free agunot with annulments, circumventing the need for a get. (Halakhic annulment doesn’t affect the status of children born of the annulled marriage.) It didn’t work. Other Orthodox rabbis wouldn’t accept a Rackman annulment as valid.
Until acceptable solutions for freeing chained women are developed and deemed kosher within a significant swath of the Orthodox rabbinate, enabling women who are freed by those methods to remarry in the Orthodox world, the prenup, as a good working solution, despite its obvious limitations, stands alone.
“I believe that a major part of my job is to alleviate suffering,” said Reiss, who travels around the country speaking to congregational audiences to broaden the scope of the prenup’s reach. His goal is to see it become universal.
Slowly, the word is getting out.
“The only problem with the prenup is that many couples are still getting married without it,” said Dr. Sharon Weiss-Greenberg, executive director of the Jewish Orthodox Feminist Alliance.
“I think the prenup should be mentioned when you sit down with a rabbi to discuss everything else you’re signing,” said Elissa Staimen Emanuel, 32, who first heard of it last year on Facebook, in a volley of postings about a woman whose husband was withholding a get. Modern Orthodox, Emanuel got married in 2012, without one, because no one told her about it.
Many modern and centrist Orthodox synagogues now sponsor prenup education featuring speakers, film screenings, and panel discussions. Last weekend, for example, Congregation KINS of Chicago hosted a three-part program featuring Rabbi Jeremy Stern, executive director of the Organization for the Resolution of Agunot, or ORA, the Yeshiva University–affiliated group that has helped more than 200 women receive gets, at times mounting demonstrations outside the homes and offices of recalcitrant husbands.
Explaining to parents and students nationwide how the prenup works and why it’s necessary, Stern makes what he calls the “romantic” argument. “When a couple signs the prenup,” he said, “they’re saying, ‘I love you so much that I never want to hurt or abuse you.’ If a guy isn’t willing to say that, don’t marry him!”
Abigail Bachrach, a senior at Stern College, of Yeshiva University, whose wedding is set for summer 2015, knows about the prenup because she sees promotion on campus and on Facebook. Planning to sign one, she encourages her friends who come from haredi homes and who attended right-wing seminaries in Israel to sign it too. “I say to them, you’re shiddach dating”—dating for marriage. “You really should mention to the guys you go out with that you want to sign a halakhic prenup.”
For those who don’t sign it before the wedding, there are now post-nup parties.
Rori Picker Neiss, 29, director of programming, education and engagement at Bais Abraham Congregation in St. Louis, got married without a pre-nup, because none of the rabbis she and her husband knew at the time suggested it. In 2014, she received ordination by Yeshivat Maharat, the first yeshiva to credential women as spiritual leaders.
Working with kallahs, brides, before their weddings, Maharat Picker Neiss routinely encourages them to sign a prenup, and she became discomfited by the fact that she didn’t personally have one. So, she decided to invite her entire community to sign along with her. Following educational programs at “Bais Abe” focusing on agunot, the congregation hosted a post-nup party.
“We wanted to make people aware that even if the prenup didn’t exist when they got married, they can still be part of the movement,” she said. More than 30 couples participated and signed the agreement.
“We want to be part of the new norm,” she said.
When she heard about the parties, Los Angeles resident Daria Hoffman contacted her rabbi at B’nai David-Judea Congregation on Pico Boulevard and asked if they too could hold a post-nup party. “If they can get more than 50 people in St, Louis, no reason why we can’t get more than 100 in L.A.!” she recalls exclaiming. Her rabbi invited rabbis from three other Orthodox shuls to co-sponsor the event.
L.A.’s post-nup party took place on a Sunday morning “not in a shul basement,” said Hoffman, a designer, but at The Mark, a stylish party venue. The event featured a wedding theme, with a faux three-tier cake, sparkling apple cider in champagne flutes, simcha music over the sound system, a photo booth, and crystal bowls filled with chocolates. The pièce de resistance may have been the chaise longues, instead of tables and chairs. “There were notaries, of course, and the couples on the couches, they’d take a chocolate and they’d sign,” she said. “It was lovely.”
More than 200 people attended the party, and more than 80 couples signed, some little more than newlyweds, and some married more than 40 years.
According to attorney Esther Macner, founder of GET Jewish Divorce Justice, a Los Angeles-based advocacy group, among those who attended B’nai David’s post-nup party were people from haredi communities, whose children had had get-related problems in past marriages. They came not to sign but to hear the event speaker, Yona Reiss. “They came to get a sense of assurance that this is a viable preventative measure, and that it’s kosher.”
To date, no ultra-Orthodox group has come out with its own version of the prenup, or issued a formal endorsement. But small signs of big changes in haredi thinking are evident.
The clearest signal that prenuptial agreements might eventually become a routine companion piece to the ketubah appeared last November in Hamodia, a haredi newspaper out of Brooklyn. In a publication so conservative that pictures of women are never shown, in a dry article about a conference of North American mesadrei gittin, rabbis who adjudicate divorces, one obscure sentence, four paragraphs from the top, heralds historic relief for women: “HaRav Shmuel Fuerst, dayan of Agudath Ysrael in the Midwest, spoke about Klal Israel’s pressing need to institute the ubiquitous use of prenuptial agreements.”
Now all that’s left is for the culture to catch up with its leaders.
“I’m very hopeful,” said Reiss.
Correction, March 15, 2015: a survey of agunot was incorrectly attributed to the Greater Washington Jewish Coalition Against Domestic Abuse. The survey was initiated by Barbara Zakheim, who is also the founder of the Greater Washington Jewish Coalition Against Domestic Abuse. The organization itself did not commission the study. The piece has been updated accordingly.
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