A Legal Guide to the Prenuptial Agreement for Couples about to Be Married

Marc D. Stern

It no doubt seems odd to be presented with agreements dealing with the possibility of divorce in the weeks prior to a wedding. Surely, at a time when two people are deeply in love and are planning a wedding, divorce seems totally beyond the realm of the possible. The answer lies not in any suspicion that any particular couple's marriage will end in divorce. In the Orthodox community, divorce is fortunately far less common than it is in the general community. Unfortunately, it is not so rare that the risk of divorce can be discounted entirely. More to the point, the rate of divorce is increasing even in the Orthodox community, and what is true today may not be true ten or fifteen years from now.

Like a disability insurance policy, one hopes never to have recourse to agreements concerning divorce. But if, God forbid, one does become disabled, having a disability insurance policy can be of great value. So too, these agreements concerning the details of a divorce can be of great help in making an unpleasant experience less unpleasant. They will also insure that the bitterness of some divorces does not become the occasion for blackmail under the guise of religion. There is another reason to sign these agreements. Each couple which signs the agreement indicates that it believes that religious blackmail has no place in the Jewish community. The very act of signing these agreements is a protest against, and repudiation of, religious blackmail. Even if a couple never needs to use these agreements their acceptance is a tangible victory in the battle on this issue.

A very small percentage of divorces become so bitter that the parties, or one of them, will do almost anything to spite the other party. In the Orthodox community, this sometimes results in either the husband withholding a get, the wife refusing to accept it, or either or both parties simply refusing to respond to a summons by the other spouse to attend the bet din. Jewish law requires that a marriage be terminated by a get which must be voluntarily given by the husband, and voluntarily accepted by the wife. The refusal of either party to give or accept a get can leave the other spouse stranded, unable to remarry. The consequence of this state of affairs is worse for the wife, since if she remarries without a get the child is illegitimate.

The two agreements are designed to be acceptable under Jewish law, and legally enforceable in the civil courts. These are not just meaningless pieces of paper. They are as important as any prenuptial agreement or any other contract. They are fully enforceable and legally binding.Both bride and groom should read these agreements carefully, and may want to consult their own attorney about these documents.

Arbitration Agreement

The first of these agreements is an arbitration agreement. It is signed by both parties, and binds each of them to appear before a bet din which is empowered to decide all issues concerning a get. The rabbi will suggest a bet din, but the parties may if they wish insist on their own bet din. Generally, it is preferable to designate a particular organizational bet din (e.g., Beth Din of America, Agudas Ha-Rabbonim, etc.)

There is yet another potentially important option couples will want to consider. The current practice with regard to the ketubah is to provide for a fixed payment upon the death of the husband or the couple's divorce. At other times in Jewish history, it was the practice to vary these amounts based on the financial status of the parties as of the time of marriage. Moreover, within certain broad limits, Jewish law recognizes the right of the parties to restructure their marital financial arrangements to depart from standard practice. In contrast to the current halakhic practice, all states today apply some sort of scheme which apportions the property between the spouses based on their respective financial contribution to the marriage. These are known as either equitable distribution or community property schemes. Although the details vary from State to State, in practice these schemes are likely to result in a greater allocation to the wife upon divorce than does the standard ketubah, particularly if the wife works, and earns a substantial income. The agreement (Section 3(d)) allows the husband and the wife to agree to require the bet din to settle their financial arrangements under their state's equitable distribution scheme as it exists on the date of the agreement.

Husband's Support Obligation

The second agreement is signed only by the husband-to-be, in return, as it were, for the future wife's agreement to marry him. It obligates him to pay his wife a daily amount for support per day. This amount will be adjusted annually for inflation. The obligation is triggered only if the parties are living apart, and ceases when the husband responds to a summons by the bet din or asks the bet din to decide the parties' marital dispute. This agreement is designed to deny to the husband any economic benefit from the too-common tactic of refusing to give a get unless a large sum is paid to the husband by the wife or her family. On the other hand, by stopping the obligation with the refusal of the wife to honor a summons to bet din, the agreement avoids any possible unfairness to the husband. In theory, these support and arbitration agreements are independent of one another. But they were designed to be applied together and will be most effective in reducing or eliminating the problem of agunah if all couples sign both. The choice, however, must be made by each couple in consultation with their rabbi.

Finally, there are certain formalities which need to be observed in the execution of these documents. After both the husband and wife-to-be sign the agreements, the original will be given to them. Copies will be given to each. These should be kept in safe places. The rabbi also keeps a copy.

In addition to all of the above, the following considerations ought to be kept in mind by both parties, when signing the prenuptial:

(1) The forms have been prepared for nationwide, as well as Canadian, use. Because in the U.S., marital disputes are decided under State law, each State has specific requirements for agreements which refer marital disputes to arbitration (e.g., number of witnesses, formalities of execution, signature of parties). To be on the safe side, we have proposed the use of two kosher witnesses and an acknowledgement in the manner appropriate for real estate transactions before a notary public. Before using these forms, which were specifically designed for use in New York, it would be wise to check with a competent local attorney who can suggest those formalities which are either necessary or desirable to comply with local law.

To avoid later disputes about whether the parties understood the agreements at the time they were executed, it would be prudent to let the parties study the agreements in advance, together with a fact sheet explaining the agreement, and to let each one decide whether to consult with their own attorney before signing the agreements. Since the interests of bride and groom are not identical, the rabbi should not suggest that they consult the same attorney. Whether or not either party actually consults with an attorney (or whether the couple jointly consults a single attorney) is less important than that each is advised that it may be desirable that each do so.

(2) The agreement offers a couple the option of referring questions of child custody and support to a bet din for decision. Couples should be told, however, that in no, or almost no, State will the secular courts defer to a bet din on matters of child custody. An agreement to arbitrate such disputes will give rise to expectations which cannot later be fulfilled.

(3) The prenuptial documents include a Hebrew version of the support obligation, patterned after the classical tena'im, as well as its English language equivalent. As a legal matter, it is preferable to utilize only the English version to avoid disputes concerning the accuracy of the translation and to dispel any question of whether the husband (or the wife) understands the nature of the document he or she is signing.

This article appears in the book, "The Prenuptial Agreement - Halakhic and Pastoral Considerations" by Rabbi Basil Herring and Rabbi Kenneth Auman. It is available through the office of the Orthodox Caucus:
124 Cedarhurst Avenue, Cedarhurst, NY 11516
(516) 569-5977, fax (516)569-5897.
orthodoxcaucus@worldnet.att.net