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Why do many ppl not hold of the halachik pre nup?
Because poskim, including Posek HaDor HaRav Yosef Shalom Elyashev zt’l, paskened that it is against Jewish Law. And if utilized causes a future Get to be a Get Me’usa (invalid Get).
I was told that R’ Elyashiv did not hold that the RCA prenup is Assur. I haven’t seen the Tshuvah inside, but apparently there is a whole story behind it.
Pashtus is that there is nothing wrong with the prenup (all it really contains is an agreement to go to a certain Beis Din in case of divorce, usually, but not necessarily, the BDA) and that if everyone signed it we would have almost no Agunos of cases of recalcitrant husbands.
I haven’t seen the Tshuvah inside
Perhaps it would be wise to look at it inside before commenting. I provided the maare makom. He most certainly was strongly opposed to it.
The Kesubah is a pre-nup. In fact, in some states you can file a notarized kesubah in lieu of having a marriage ceremony. In court cases, some American courts hold that the kesubah requires that when the marriage ends, the parties agree to end it in accordance with halacha, as specified in the kesubah. The kesubah already requires the husband to give a get if the marriage ends, so if you make a secondary agreement contradicting the kesubah, it is inherently dubious. The secondary agreement (the secular pre-nup) implies the first agreement (the kesubah) is invalid.
And that’s before the complaints of many poskim, some of which have to do with whether an act taken pursuant to a civil court order is voluntary, and if under duress, is it then invalid.
My suggestion is to examine the historic reason why this wasn’t a problem, and I suspect you’ll find that the way it used to work was that if the husband wanted to ditch the wife, he would rush to give a get so he wouldn’t be getting the bills (since the wife could shop for anything she considered a necessity, and the husband would get the bills). Desiring to cut off paying the wife’s bills was not coercion, and would discourage refusal to give a get.
akuperma: The Rama paskens that a husband is only responsible for his wife’s expenses while she lives in his home. The halacha also is that a wife cannot purchase anything without her husband’s approval. (And if she does her husband can reverse the transaction and is not responsible to pay for it.)
akuperma: Essentially, all the premup is is a legally-binding agreement that the husband continues to pay her bills until the Get is given. All it does is give the Kesuba legal teeth, which it doesn’t contain in America.
Any one relying on it would have to be nuts. It doesn’t even have a clause saying what happens in the event BDA is no loger existing, or if BDA is taken over by conservative/YCT.
It’s even worse than that. It only financially penalizes the husband if the husband doesn’t give it; it makes no provisions to penalize the wife if the wife doesn’t accept it. Furthermore, it pressures the giving of a Get even in cases where halacha doesn’t require a Get. And additionally it mandates using a beit din that has a reputation for issuing decisions that are based on popular feminist views and follow secular law over halacha when the two differ.
Any one relying on it would have to be nuts.
So can we be oiker all of their kiddushins l’mafrea altz mekach taos?
If the husband moved away, the wife was still in his home. If he wanted to move his home, he would have to take her with, or give her a get. In his absence, the Beis Din would seize his assets to support his family. The American style of the husband running away and leaving the wife to go on welfare wouldn’t have worked, and the American style of trying to blackmail the wife’s family to pay for a get wouldn’t work since the Beis Din as well.
Relying on an external force to coerce a get raises a shailoh.
An agreement that the husband agrees to support his wife until a get is issued (at a level reflecting the family’s past standard of living or his income, whichever is higher) would easier to enforce than an agreement requiring him to give a get. What is a reputable Beis Din, what is coercion, etc., are tough questions. Money isn’t. And with such a contract, the woman could sue in a civil court under the contract without trying to get the government to collect support which is a much more complicated proceeding. And such agreements avoid all the issues of the various pre-nups.
Joseph: Akuperma is describing the prenup perfectly. Learn Kesubos. It’s not penalizing anyone. It’s just a legal contract that the husband will pay Mezonos until the Get is given, which is Halachic requirement. There is no such requirement for a wife who refuses a Get. She would be a Moredes and Beis Din would waive her Kesuba. You don’t need a legal document enforcing that.
“And additionally it mandates using a beit din that has a reputation for issuing decisions that are based on popular feminist views and follow secular law over halacha when the two differ.”
This statement is false on several counts. First of all, it does not mandate using the BDA. It mandates pre-agreeing on a Beis Din before the marriage. It just so happens that most people who use a prenup agree on the BDA. Secondly, your statement that the BDA follows secular law over Halachah is absurd Motzi Shem Ra and I’m disgusted that the mods let it through. If you have a source for that, bring it. Otherwise, maybe call them and ask for Mechilah.
http://hebrewbooks.org/pdfpager.aspx?req=7512&st=&pgnum=101&hilite=
(Last paragraph; It’s not discussing the prenup, but we can easily apply it to the prenup.)
Sam: That is not correct. The amount specified in the RCA/BDA prenup is far in excess of “mezonos”. It specifies the husband must pay her $150 a day. That is in excess if $50,000 a year in so-called “mezonos”. It is clearly and unambiguously designed to far exceed any reasonable mezonos need in order to effectively penalize him into pressuring him to give a Get. Regardless whether he has a halachic obligation to give it or not.
It starts taking effect the day she (on her own volition) walks out of his home (or forces him out). Under many such circumstances he has zero halachic obligation to give her any mezonos (see my earlier comment regarding the Rama) let alone pay her an amount far in excess of mezonos of over $50,000 a year. An amount that is the same even if they have no children. (And it wouldn’t replace his child support obligation even if they do have children.) How many men even earn enough to pay someone 50,000 after-tax dollars a year plus support himself and his children. It would require an income of over $125,000, at least, pre-taxes. His individual (not family) income.
This prenup doubtlessly and undeniably is designed to be penalizing. (And to an extent where the vast majority of husbands couldn’t even afford it.) This is no mezonos.
As far as the BDA, the prenup doesn’t have a fill-in to indicate one’s preferred beis din. (There are other provisions in it that are optional and can be selected, if desired.) It is pre-printed with the BDA in the terms. And the instructions indicate not to change any provisions unless first contacting the BDA.
chush: Read Rav Elyashev’s teshuva I referenced above. His various objections remain relevant to the prenup.
It is widely used. Check out the ORA website. The list of rabbonim how use the pre-nup is huge.
Popa, why on earth would the BDA no longer exist, or be taken over by YCT? Do`you refrain from signing legal documents, fearing that the USA will be taken over by ISIS?
Matan1: The list is almost only of MO rabbis. And it isn’t as widely used even in the MO community as supporters tout. (Check around with recent MO couples and you’ll likely find most never signed.)
Outside of the MO world it is virtually unheard of. I saw a YT video of Jeremy Stern claiming Rav Shmuel Kaminetzky told him he supports it when he bumped into him on a plane ride. I called Rav Shmuel and he told me he certainly does not recommend or encourage it but rather if the other side asks for it he doesn’t think you should fight them over it since he doesn’t have a halachic objection to signing it. (Rav Elyashev does halachicly object, as his teshuva states.) Rav Shmuel specifically told me it should not be recommended or encouraged.
First off, The pre-nup has the endorcment of Rabbis Zalman Nechemia Goldberg, Dov Schwartz and Moshe Heinemann, who I do not believe are MO.
Second of all, why does it matter that most of the rabbonim are MO? Rabbis Willig and Schachter are both gedolim. Why should their opinions matter less?
Finally, the pre-nup is widely used. The RCA released a statement saying that none of their members should officiate a wedding if a pre-nup was not signed. All the YU roshei yeshiva support the pre-nup.
Joseph: False. This is also a Gemara in Kesubos that a woman willingly forgoes some of her entitlements as long as she is happily married. Once she isn’t, she can demand what she deserves. The $150 a day is determined to be 1) about the same value that the Nachalas Shivah mentions for Mezonos in his Sefer and 2) about the same as what is considered a median middle-class income, i.e. what she is entitled to.
Sam: 1) The Nachalas Shivah is irrelevent to the prenup argument. Even Rav Asher Weiss, who supports the prenup for other reasons, admits as much. Rav Weiss writes about the Nachalas Shivah as thus:
???”? ??? ?? ???? ???”? ????? ?????? ????? ?? ????? ?????? ???? ?????? ?? ???? ???? ?????? ????????, ??? ?????? ???? ?? ???? ???? ?? ????, ??”? ??? ??? ???? ?????? ????.?
“In my humble opinion this is not related to our case for it seems that this enactment’s fundamental purpose is really to guarantee the well-being of the woman and the distribution to her of her food, and not as a medium to force the husband to divorce his wife, and if so there is no proof to our case.”
And she can’t demand what “she deserves”. Mezonos is based on the cost of basic living expenses for anyone in that locality. Furthermore, the BDA prenup kicks in the so-called “mezonos” even in cases where there is no halachic obligation to give a Get and cases where he has no halachic obligations to give her any mezonos. (See previous comment on the Rama.)
2) $Over $50,000 per year, for one person, is most certainly not “about the same as what is considered a median middle-class income”. The only way you get there is if you count a two-parent income, in which case a) she is already keeping her own income, per the prenup, even though halachicly if he gives her mezonos then he gets to keep all her income and b) if $50,000 after-tax for one person is what you call a “median middle-class income” then a two parent family with four children would need something like $200,000 pre-tax to be middle class. This is an absurd argument for both these reasons and this is blatantly obvious. It is a penalty not mezonos.
Matan: Rabbi Schwatz is MO. The RCA doesn’t disallow members from being mesader without the prenup. And despite the rhetoric, the very clear majority of MO chasanim don’t sign it. In the non-MO world virtually no one signs this prenup. And according to the Pew Research study from less than two years ago, 81% of American Orthodox Jews age 30 and younger are Chareidim.
This is the 2006 resolution of the RCA:
“RESOLVED that since there is a significant agunah problem in America and throughout the Jewish world, the Rabbinical Council of America declares that no rabbi should officiate at a wedding where a proper prenuptial agreement on get has not been executed.”
Part of a July 10, 2013 RCA resolution:
They still say you should sign a pre-nup.
Anyways, this is missing the point. There are many great poskim who encourage the pre-nup.
First off, The pre-nup has the endorcment of Rabbis Zalman Nechemia Goldberg, Dov Schwartz and Moshe Heinemann, who I do not believe are MO.
Rabbi Gedalia Dov Shwartz is definitely MO. You seem to assume that just because he is a talmid chochom and a well regarded posek, he must not be MO.
Matan, you may not agree with MO on everything, but this is way over the line.
I apologize for mislabeling R’ Gedalia Dov Schwartz as not MO.
Popa, why on earth would the BDA no longer exist, or be taken over by YCT? Do`you refrain from signing legal documents, fearing that the USA will be taken over by ISIS?
Because I view the USA as more secure than the BDA. If you disagree, that’s certainly your prerogative.
Fair enough
PBA: To be fair, your anger is misplaced. He used the word “Rabbis” before the whole list of names, implying that he was referring to all of them as Rabbi.
Joseph: I don’t know where you live, but 50K is pretty middle-class in NYC.
I’ll have to go over Hilchos Kesubos, but I feel like I recall that that Rama was rejected. I think most assume he is Chayav in Mezonos until the Get is given.
R’ Asher Weiss is certainly not “MO”.
And I’m not sure why all of this is even relevant. I have to think this out, but generally a person can pretty much volunteer any monetary Shibud he wants on himself. I do not see any reason why stating that “in circumstance X I will give my wife $Y” is invalid and what it has to do with the Get. It may be that he is defining “circumstance X” as “if my wife asks for a Get and I don’t give it”. But I cannot see what that has to do with a Get Meuseh. A person made a Shibud on himself. Like I said, I have to look into this more, but Al Regel Achas that’s what I would say.
Sam: This Rama is how we’ve paskened for centuries, at least.
$50,000, after-taxes, per-person, is far in excess of “middle class” in NYC. That would be defining middle class for a two parent household as being in the neighborhood of $150,000 pre-tax per year. Completely absurd. And the prenup amount is the same across the US, it isn’t a NYC amount. And it is post-tax dollars not pre-tax dollars. And it is for (mezonos supposedly of) one person not an amount for a family. And the prenup indexes it to inflation, meaning the amount will be more than $150/day, $55,000/year, when it kicks in.
More fundamentally, a husband is not even required to give his wife mezonos in amount equivalent to an upper middle class income lifestyle for her. (And, again, this prenup amount is far far in excess of middle class.) He only obligated to cover mezonos for basic living expenses. And in many cases (and with the Rama in virtually all cases the prenup applies to) he has no chiyuv to give her any mezonos.
Bottom line: The BDA prenup is set to an amount clearly and overtly and unambiguously to be a severe penalty that the vast majority of husbands could not even afford to pay (with the obvious intent of forcing him into giving a Get even in cases where he has no halachic obligation to give a Get). To call it mezonos is an unmitigated joke.
Read Rav Elyashev’s teshuva I cited on the issue of agreeing to a monetary Shibud. Rav Elyashev says that since at the time of signing he expected it to never actually coming into play, he effectively never agreed to it. Rav Elyashev further rules that even if he had properly and bindingly agreed to it, if the result is that it pressures him into giving a Get then it is a Get Me’usa.
Joseph, why don’t you contact R’ Osher Weiss, and ask him how he can endorse it? That would give you a far greater insight than posting here. You can also contact R’ Zalman Nechemia Goldberg, a member of the Beis Din of Yerushalayim (as well as a son-in-law of R’ Shlomo Zalman Auerbach zt”l).
Because it starts off marriage on the wrong foot. You have to make marriages work, not stress the out clause.
They can get a video from every rav in the world, and can even video it on shabbos using a shabbos switch.
Until they get the roshei yeshiva to tell the guys to do it, nothing will happen.
My eoshei yeshiva could have instituted it across the board just by having a sign hung on the bulletin board.
DM: I have already been in touch with various gedolim and rabbonim on this issue. (I mentioned one earlier. There are others including on the MO side.)
Sam: According to Pew Research, nationally middle class income starts at $31,000 a year (for an individual). In Manhattan, middle class income starts at $45,000 a year for an individual. According to the US Census, the national median income is $36,000 for an individual and $52,000 for households (i.e. two incomes). In NYS, the household (i.e. two incomes) median income is $57,000. Upper middle class, nationally, starts at $62,500 per household (two incomes).
[And it should be again pointed out that mezonos obligations are not to provide a middle income lifestyle but rather only to meet basic living expenses.]
And under the prenup a) the wife keeps her own income (even though halachicly it belongs to him if he gives her mezonos) – this is effectively doubling the money she is getting b) if he is obligated on her mezonos, he only owes it to her as an individual (i.e. single person) c) his child support obligations are separate, enforceable separately, and the prenup payments to her are specifically not counted towards child support d) most people do not earn an $80,000 a year salary even pre-taxes and most people would be very happy with such a salary. $80,000 post Federal, State and City taxes is $60K-something a year. The prenup costs $55,000/year + inflation for all the years from the wedding date until the separation date. e) So on his $60K-something post-tax income he has to give her over $55K (probably $60K-something and maybe more) once the prenup termed mandatory inflation adjustment is added. Now after he gave her all his income, he has to pay his rent or mortgage, his kids tuition, food for him and his kids, miscellaneous expenses, transportation to work, car, insurance, healthcare, etc.
You know as well as I and anyone else reading this that $55,000 + inflation (post-tax money) for one person – plus her keeping her own earnings – is not any halachic or otherwise definition of “mezonos”.
Well, all the roshei yeshiva of YU have told the guys to do it
I should have said, except for YU, since the students don’t believe in daas torah so it doesn’t matter what the roshei yeshiva say.
Actually, I just proved that YU talmidim believe in daas torah. The roshei yeshiva said to sign a pre-nup, and YU guys do!
Actually I proved very many don’t. See the RCA resolution from 2013 that I quoted above. Even many MO rabbis who are mesader kedushin refuse to recommend the prenup. Or better yet ask around. Most MO newlyweds never signed the prenup. (And in the Chareidi world, which constitutes over 80% of the young American Orthodoxy [see above Pew I cited], it is virtually unheard of.)
The YU roshei yeshiva don’t believe in daas Torah, so if the talmidim do, they’re not listening to daas Torah…
Find me a MO rabbis that refuse to be mesader kedushin with a pre-nup.
DaasYochid and PBA: Without knowing too much on the matter, I believe your paradox can be solved in this way: YU Roshei Yeshiva and YU people may not believe in “Daas Torah” when it comes to non-torah related matters, but they certainly (at least, the majority who are truly “modern orthodox”, not the small minority of non-frum people trying to keep themselves called “orthodox” who make everyone else look bad) believe in daas torah (aka Psak) in halachic matters! If a YU rosh yeshiva tells his talmidim to do something halachically required, they would do so. (I have not seen that this agreement was portrayed as something everyone must do)
Side note: the prenup website also lists Rav Ovadia Yosef zt”l as being supportive of their prenup
See the aforementioned RCA resolution indicating their serious concern that a consequential number of their own MO marriage performing member rabbis don’t support these prenups.
(I have not seen that this agreement was portrayed as something everyone must do)
That’s precisely why they wouldn’t feel the need to listen.
Ivdu:
We’re talking about the area between halacha and non-Torah related things. Like whether to do a pre-nup, for example (according to those who do not think it is an actual halachic problem, like my rebbeim for instance).
If a YU rosh yeshiva tell his students that it is a bad idea to sign the pre-nup–I don’t think they would listen to him. Nor if he says it is a good idea.
PBA: I strongly disagree. There are certainly those who wouldn’t care. But I would guess about 80% (maybe a little more) of those in top Shiurim listen to any Psak from their Rosh Yeshivah (or community Rav).
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