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The Role of the Beth Din in Preventing and Resolving Agunah Cases
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The Role of the Beth Din in Preventing and Resolving Agunah Cases, Twenty Years with the Prenup & Postnup Orthodox Union National Convention: Sunday, Dec. 28, 2014 – 6 Tevet 5775 Chair: Benjamin S. Kaminetzky, President, Beth Din of America Rabbi Shlomo Weissmann, Director, Beth Din of America - https://www.ou.org/convention/speakers/#Rabbi_Shlomo_Weissmann
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good morning everyone uh my name is
benjamin kaminetsky
um
i'm an attorney at uh davis poke and
wardwell in new york i am also um
involved in the basement of america and
it's great pleasure for me to welcome
you to this session featuring one of the
true quiet heroes of the american
orthodox jewish community
i'm sure you've all had the following
experience you are
you hold an organization whether it's
jewish or otherwise in high regard and
then you get involved and once you are
on the inside once you see how the
sources is made you are disappointed and
you view that organization and your view
of that organization plummets since i
got involved in the beta of america i've
had just the opposite experience
after getting a glimpse of how the
sources is made my appreciation
admiration and reverence for the work of
the basement of america has increased
exponentially
be it the professionalism independence
and absolute impartiality of the dna
torah arbitration process done under the
auspices of the basin of america
and i commend you to read the anonymized
opinions that were recently issued by
the best thing of america in their dina
in their uh arbitration cases that
you'll find in your welcome packet in
the bethenny journal
whether it's the the kind of the
scholarship and independence and
fidelity to halacha in the law
that's reflected in that opinion or
an apropos to the topic of today the
extraordinary extraordinary care empathy
compassion discretion in which the best
in attempts to involve it to resolve the
most sensitive divorce and family issues
with absolute again uncompromising
fidelity to halacha and the law and just
to give you an example just you know
halacha i don't have to talk about as
you know we're under the leadership of
rav gadalia schwartz and rav willig from
yeshiva university
but this summer just to give you an idea
of how seriously we take what we do
spent literally hundreds of hours this
summer going through the prenuptial
agreement which you're going to hear
about today looking at the law of how
many different states 20 25 different
states to make sure that the prenuptial
agreement would be
enforced by courts in the various states
that uh that we looked at literally
hundreds of hours to make sure that we
know that we're doing things as uh
appropriately and as accurately as
possible under every possible scenario
that we could imagine i'm literally
awestruck by the work of the best then
and a big part of that is through the
leadership of the menahel the director
of the based in america rabbi
weissman who is today's speaker rory
weissman received his smiha from reits
in 2001 and recently also earned his
yada yada smikha from yu this past
spring he's a graduate of yeshiva
college and then columbia law school
where he was a harlan fiscal
fisk stone scholar and where he
graduated in 2001. before joining the
best den of america rabbi weissman
worked at some of the most prestigious
law firms in manhattan including deva
voice and clinton so it's with great
honor and cover that i introduce rabbi
weissman the men hell of the
bathroom of america
thank you very much ben
thank you for that introduction but also
thank you for your um
increased involvement over the past uh
year um in the governance of the
president of america ben joins a long
and or not a long but short and
formidable list of lay leaders that
we've been blessed to
uh have at our helm
in the modern era of the best in of
america
dating back to the mid-1990s starting
with
shelley rudolph oliver shalom the past
president of the ou
who served as our president
in the early 2000s
eric goldstein who is now the
chief operating officer of uja
federation of new york most recently
alan fagan who now is the chief
operating officer of the ou
and so ben we hope that you uh before
you go over to go to some huge big
organization that dwarfs us in size uh
you will
serve us
in the able way that you've shown
you've shown until now that you
that you're committed to doing
i'd like to talk a little about the
prenuptial agreement
i'd like to start by describing the
agreement
briefly
talking about its advantages
and what a groundbreaking and important
document it is
and then hopefully at the end we'll have
time for questions and answers
so we could have a dialogue about about
the agreement and its importance
the best way to describe the prenup
best way to describe anything perhaps is
with a story so i'll start with a story
in the fall of 2005
a husband and wife with one child
started
to get divorced they separated in
anticipation of divorce they had married
years earlier a few years earlier in an
orthodox wedding ceremony
and things had not gone well in their
marriage
the husband filed for divorce and early
on in that divorce process he approached
his wife and recommended that they
present themselves to a besdon to
arrange a get
and for whatever reason the wife
declined she said i'm not interested in
it yet leave me alone
their divorce proceeded and by 2008 the
couple finally
finished their civil divorce process and
at this point the husband realized he
needed to get more serious about getting
a get he really needed to get
in order to move on with his life and so
at this point when the wife continued to
refuse to receive a yet he contacted the
bethan of america to send
azman a summons to summon the wife to
come to besdon
now i serve
as the menahil as the director of the
bespin of america and almost always i
can't really tell stories about the
cases that come before us because of of
the promise of confidentiality
that we make to the people that come to
us for our services but every once in a
while a case makes it into the public
record and as we'll see in a moment this
is one such case
so as it turns out this couple had
signed
what's known as the rca or bethan of
america prenup
let's take a moment to talk about what
exactly the prenup says what it provides
um and then we'll continue the story the
prenup says essentially it's it's
relatively simple document it says that
from the
the day
the couple separates until their divorce
until their divorce as a matter of
jewish law in other words until the get
is given the husband owes the wife 150
per day
um now if the wife doesn't cooperate
with the process for example at any
point she declines to receive a get even
though the bes didn't suggest that she
received the get so the support
obligation isn't collectible it goes
away but assuming that's not the case
this 150 accrues per day until the get
is given the idea here clearly is to
provide an incentive for a husband to
give a get earlier in the process rather
than later in the process
and as we'll see it works well
now in order to follow this story it's
important to realize that in may of 2008
we added a slate
a tinkering with to the
agreement we added a sentence that says
that the support obligation really only
begins to accrue
from the moment the wife notifies the
husband of her intent
to collect the support
and so for example if they separate but
the wife doesn't notify the husband of
her intent to collect the support
the 150 dollars a day doesn't begin
doesn't begin to accrue uh it only
begins to accrue once she sends a notice
to the husband that she intends to
collect the support obligation now the
case we're talking about was governed by
the old prenup and so at this point in
the story
when the wife was contacted by the
bethan of america after the finalization
of their civil divorce to receive a get
the wife responded that she was prepared
to receive a get
but only if the husband first paid her a
hundred eight thousand dollars
representing the hundred fifty dollar a
day obligation for the roughly two years
that it took for them to get civilly
divorced even though she had declined to
receive that get there had never been a
formal best in proceeding in which she
did that and so she reading the literal
terms of this document insisted that he
owed her 150 a day 108 000
and she wasn't prepared to receive the
get
until he would pay her the hundred eight
thousand dollars
the husband of course argued nothing
doing he said i was prepared to give her
a get from day one why should i pay her
a hundred eight thousand dollars that's
crazy and so they ended up coming to a
hearing before the bethan of america in
front of a panel of three dayanim
the wife maintained her little literal
reading of the agreement the husband
said i don't owe her a penny
and the bethin
convened they convinced her that it was
in her best interest to receive the get
regardless she received the get and we
promised her a written decision on the
merits of her monetary claim for the 108
thousand dollars
a few days later the panel issued a
written determination rejecting the
wife's claim for a hundred eight
thousand dollars but awarding her ten
thousand two hundred dollars this amount
reflected the daily support obligation
accrued from the date of their
separation until the date the husband
first approached the wife and suggested
they get to get
now both the husband and the wife uh
were upset now the ex-husband and
ex-wife they were both upset the husband
thought he shouldn't have to pay
anything let alone ten thousand two
hundred dollars the wife still thought
she was entitled to a hundred eight
thousand dollars now one of the unique
features of the bethenny of america of
our arbitration process is that under
section 31 of our rules and procedures
we have an appeal process
where a
non-prevailing party can appeal the
decision of the panel to the av bezdin
to rival dove schwartz and the way it
works is that they submit you submit a
written appeal
the appeal has to be
you have to present it under one of a
number of uh conditions one of which is
that the the decision reflects a mistake
in jewish law
and so in this case both of them
appealed
now regulator of schwarzenegger has the
opportunity of authority to delegate it
to a different diane and in this case he
delegated to rabbi mordecai willig rabbi
wilg was a good choice not only because
he
is an expert in these issues but he's
the prime architect of the prenup
and in march 2009
rabbi willig handed down a ruling
modifying the lower besden panel ruling
and concluding that the husband didn't
owe anything to his wife
the clear intent of the prenup he
reasoned was to give a good incentive
for the husband to give a get early in
the process in this case the husband was
prepared to give a get in fact he was
the one who was always advocating giving
a get
and he shouldn't have to pay anything
now predictably the ex-wife was now
really upset
and she promptly went to secular court
to argue that an arbitration
organization can't overturn its own
ruling
and at the very least she should be
entitled to the ten thousand
two hundred dollars that the lower panel
had awarded her
and finally in 2011
in my favorite judicial decision ever
written
the court upheld rabbi will's decision
and the husband now
at the end of the story was permanently
off the hook from paying the wife
anything under the prenup it's my
favorite decision for four reasons
number one it upheld our conclusion
number two it spoke favorably about our
process and specifically affirmed our
appeal process under section 31 of our
rules and procedures
uh number three it actually went further
and said that rabbi will make rabbi
willow's ruling made sense it was the
most equitable
way to handle this case
and number four if you look at the dates
in the uh in the decision you see that
the civil court process took a full two
years convincing anyone who would have
thought otherwise that the uh process at
the beth in america is much much more
efficient than any litigation in secular
court
i like to tell this story because it
sheds light on the nitty-gritty
mechanics of the prenup how it's
technically structured
the case
and the pathway its pathway through the
besden and secular court system
also demonstrates in a really in a real
way in a very
way that this document isn't just
symbolic
it's a real legal instrument
that depends on court enforceability to
accomplish its goals and the best in of
america even in an anomaly like this
case
vigorously administers the agreement
and ensures that it's interpreted justly
and fairly
i should mention at this point that the
post nup works identically to the prena
many people who got married uh before
there was a prenup have signed post
notes my parents are in the audience
they just signed a post up last week i
think
it's a great way to show support for the
document and then to spread awareness
about the document
the truth is that this story isn't
typically what happens
much more often almost always almost
always the prenup works in the way it
did in the following case
this case happened recently over the
past several months but the same
description applies to scores of cases
that have developed over the years
before the bethenny of america under the
prenup in this case a couple had an
orthodox wedding
and they lived outside of the new york
area
their marriage ended in acrimony
and for several years they were engaged
in difficult litigation in civil court
at some point during this process the
wife began to ask the husband for a get
and the husband indicated he wasn't
prepared to give it to her and even at
times he suggested that he would not be
prepared to give her the get until he
was satisfied with the custody and
financial outcome of their divorce case
and so the wife began to get worried and
she contacted the bethan of america to
open up a file
and she presented her she realized she
had signed a prenup she presented the
prenup we began sending out hashmanas
summons summonses to the husband
we sent out one summons there was no
response we sent out a second summons
there was no response and i finally
ended up on the phone with the husband
just after we sent out the third hazmat
the third summons
and when i spoke to him on the phone the
husband complained bitterly
about the raw deal he was getting in
secular court
and he let me know that he wasn't going
to give a get
until his wife relented and gave him
what he thought he was entitled to um in
their divorce in their divorce process
i calmly explained to him how the prenup
worked
he didn't seem to move the guy
i suggested that he speak to his lawyer
to talk about his exposure under the
prenup that didn't seem to move him
either we sent one final letter
indicating to him that we were prepared
to schedule an arbitration proceeding
pursuant to the terms of the prenup
and within three days after we sent that
letter the guy calls me up and he tells
me he's prepared to give a get
that that case or something similar to
that happens all the time
now it's true inevitably there are going
to be cases
there are going to be cases where the
prenup doesn't work classical aguna
cases where a husband just goes missing
cases that we find every once in a while
where a husband just falls off the grid
he's got no assets and no hope
he's essentially judgment proof and it's
not clear in those kind of cases whether
a money judgment against him is going to
convince him to give a get
but in the vast vast vast majority of
cases
the challenging aguna cases that we read
about in the newspapers
that afflict people that we know
neighbors and friends of ours
that command an inordinate amount of
time of our besden and other batte din
cases where the
institution of the get is utilized sadly
as a tool of
extortion
causing hashem and sullying the name of
torah in all those cases or in the vast
majority of those cases the prenup has
worked smoothly and spectacularly
there's something something very
compelling
about the structure of the prenup
rather than seeking
to undermine or fundamentally change the
process
it reaches back in time
and it elegantly restores the authority
of the community over the individual in
the realm of the get
think think about what's brought us to
where we are today
and how the problem of the modern day
aguna developed
the torah tells us that before isro
advised moshe otherwise
most sharabanu sat and heard cases min
from the morning until the night
the talmud teaches us that this phrase
harks back to the arab and boker of
myself beratious of the creation of the
world
why why the connection between hearing
cases and the creation of the world the
governor tells us called dayan shadondin
that a judge that adjudicates
cases honestly and appropriately
is akin
to a partner of the rabona shalom in the
creation of the world
and again why that connection so the
bach in his commentary at the beginning
of khoshan mishpat
says that this connection is because the
continued
existence of shamayim and aaretz what
keeps the sky up and what keeps the
earth intact
is the social order that a working
system of law ensures
without a strong judicial system
and without the rule of law there's
anarchy
and the world in which we live in the
heavens and the earth just can't
tolerate a system with a society without
justice
but from the perspective from this
perspective of a strong jewish judiciary
of an intact business system
in 2014
on the eve of 2015 in north america the
sky is falling
there's no universally recognized vesden
there's no centralized communal
structure
there's no empowered rap in it there's
no authority to tell people what to do
to tell men and women
in the divorce process or in any process
how to behave in accordance with torah
values
for all the benefits of a decentralized
communal structure and there are many
benefits to a decentralized communal
structure local autonomy multiplicity of
communities diversity
there are also some downsides and one of
those downsides
is that a get can be withheld with
impunity
without a beside that's both empowered
and prepared to justly adjudicate cases
the decision of when to give a get or
whether to give a get is left to one
divorcing party's unilateral discretion
that's a recipe inevitably for the abuse
of the torah system of divorce it's a
recipe for disaster
and that's precisely how it's played out
over these years
their women out there again our friends
our neighbors people we know who have
been who simply can't remarry
despite the functional end of their
marriages years long uh ago
we've dealt that the besdom with cases
of husbands who've withheld getting
made explicit demands for money for
getting we've seen women of child
bearing age who have been denied getting
for years one year two years three years
more
where their inability to date and move
on with their lives has a real effect on
the trajectory of their lives
i've seen insane cases of
agunas who have been agunas for 17 years
20 years
but the prenup when it's signed is like
a magic potion that just magically
reverses the state of affairs
when a couple signs the prenup
we know that the get won't be improperly
withheld because there's a disinterested
third party the besden
that will step in to determine
the proper time for the get to be given
and importantly it has the power of the
purse to back it up
and what's encouraging is that quietly
over the past 20 years
the solution of the prenup has emerged
more and more
as the long-term solution really the
only promising long-term solution to the
aguna problem
think about this when it was first
proposed in the mid-1990s
the promoters of the prenup the initial
promoters of the prenup had to strike a
confident tone
about the kind of solution they were
proposing and its effectiveness
because its effectiveness depended on
everyone's participation if the prenup
had held any promise of working and
ending the aguna problem that could only
happen if it were routinely signed by
brides and grooms when they got married
if nobody signed it or more likely if
the only people to sign it were the ones
least likely
to withhold getting then the solution
certainly wouldn't work and yet these
initial
drafters of the prenup the initial
promoters of the prenup couldn't really
have known with certainty in its very
very earliest days whether this was a
real solution that would work
would the agreement actually hold up in
court
would courts actually support awards
issued by the besdon
under the terms of the prenup
would money judgments actually work
to convince husbands intent on trading
money for a get to give a get well young
couples actually signed the document
when they got married
they couldn't have known for sure if the
prenup would be just one more tool that
would chip at the edge chip away at the
edges of the problem or if it would
offer a real robust long-term solution
to the problem that wasn't going away
this morning
twenty years later
the picture is entirely entirely
different
and we have in our possession a real and
tested antidote to the aguna problem
it's even been court tested in december
of 2012 in light v light a connecticut
court upheld the constitutionality of
the prenup the court gave what we've
always known was the correct answer the
prenup represents a neutral
secular contractual agreement and it
doesn't violate any of the
constitutional doctrines that would
ordinarily
bar a court's involvement in a religious
controversy
and that 2012 ruling set an important
precedent for other courts to follow
but more importantly the picture is
different today
because we have practical precedent
over and over again
the prenup has worked in the background
to prevent potential cases of egon
sometimes it doesn't even have to be
mentioned both parties know it's there
and they know how to behave
appropriately in their divorce
negotiations because they know the
consequences if they don't
sometimes like the case we just
discussed the couple needs to be brought
to her the husband needs to be brought
to the brink of a dintora hearing and
ultimately the prenup works sometimes we
even have to go further and actually
hold the hearing and issue a decision
but time and time again in case after
case
the prenup has yielded its positive
results
even in the most acrimonious divorce
cases
when it seemed improbable that anything
would work to get a time we get
now like anything new we can't expect
immediate
universal adoption of the prenup but i'm
hopeful that as time goes on
and as the experiment of the prenup
continues to succeed
more and more segments of the jewish
community of the orthodox jewish
community will adopt the prenup and
begin
insisting that it be signed by young
couples
for those who have questions about the
propriety of the prenup those are
important discussions that need to take
place in the public realm and among
postgame
but you've probably heard some of the
cultural arguments against the prenup
people say that it's not romantic people
say that it's awkward to raise issues of
egon and divorce
for a young couple in love and about to
get married
where they've said that having a prenup
this was actually reported in the
newspaper of two years ago by a
prominent member of the orthodox
community that the prenup brings the
possibility of divorce to the forefront
making it a real options when couples
who are having marital difficulties
should be focusing on
improving their marriage not thinking
about divorce
now intuitively many of us reject
these arguments
especially the last one because we live
in a time where divorce is not a secret
divorce is not a rarity everyone knows
about divorce it's hard to imagine that
raising the issue of divorce talking
about divorce with a young couple
actually significantly where it all
changes the psychology of a couple
that's an intuitive argument but now we
actually even have some statistics to
back up this argument
a few years ago an old friend of mine
rabbi shmuel maybrook moved to
passaic new jersey with his family
that's where my family lives and we
invited the may brooks over for a
shabbos lunch
and the conversation at the shabbos
table turned to what his wife rebecca
hani maybrook was doing she was at the
time finishing up her doctorate in
psychology
and
at the shabbos table we started talking
about what she was writing for her
dissertation and she told us
that she was writing about marital
satisfaction she was going to conduct
her she was just starting then to
conduct a survey
of married people in the orthodox jewish
community she was going to send out the
survey and collect the data and write
about
the things that affect marital
satisfaction in the orthodox jewish
community and because of my line of work
i said to her you should throw
uh you should throw a few questions in
about the prenup i didn't know what the
connection to marital satisfaction was
but i figured
couldn't hurt get some data about the
prenup
and that was the end i for completely
forgot about that conversation until
this past july when i got an email from
she's now dr connie maybrook i got an
email from dr maybrook indicating that
she had actually finished up her marital
satisfaction survey she had succeeded in
getting 2600 responses to this survey on
marital satisfaction which is pretty
impressive
and she had followed my advice and
thrown in a few questions about the
prenup in her survey
and she invited me to work with her a
little and and try to understand what
the uh what the responses meant whether
we could use any of this data in a
positive
way and as it turns out
uh when you comb through the data about
25 percent of respondents again 25
percent of the 2600 respondents had
responded that they had signed the hello
75 percent had not as you'd expect the
younger the respondent the more likely
they were to sign a prenup that's i find
immensely encouraging that's a big
number just in its own right and to see
that 25 of a random sampling actually
signed the prenup i think that speaks
well
of the saturation
not saturation but of the of the of the
real uh
tremendous strides we've made over the
past 20 years in getting people to sign
the prenuptial agreement
but importantly when the data was
analyzed it showed the following the
survey calculated or the the the people
who analyzed the survey results
calculated marital satisfaction based on
the dynamic adjustment scale which
apparently is the most empirically used
scale
to determine marital satisfaction based
on answers to survey questions
and
they found no correlation
positive or negative
between having signed the prenup and the
success of a couple and achieving
marital satisfaction
but more to the point
the survey asked
the respondents the following question
one of the questions in the survey was
how often do you discuss
or have you considered
divorce separation or terminating your
relationship now remember some critics
of the prenup have argued that signing
the prenup makes it more likely that a
couple will inappropriately and
prematurely think about divorce or talk
about divorce or contemplate divorce in
in some real way
and if that's right then controlling for
other factors that would affect how this
answer was how this question was
answered there should be at least some
bump in the line
for how married people answer this
question depending on whether or not
they signed the prenup but when the
numbers were tallied the needle didn't
move at all there was no correlation at
all between signing the prenup and
discussing or considering the
possibility of divorce
we've talked
this morning about some of the reasons
for signing the prenup
its benefits thanks to this study we're
a little farther along
than we used to be in answering some of
the critics of the prenup
i'd like to close with one concluding
thought that i think is especially
appropriate
in the context of an ou convention the
development
and the adoption of the prenup i think
represents one of the signal
achievements achievements of
centrist orthodoxy in america over the
past quarter century
it was achieved by an extraordinary
partnership between the rabbinic and lay
leaderships of our community
the prenup couldn't have been developed
it couldn't have been authored it
couldn't have been written without the
besden and the cooperation of postgame
of stature
because the areas of al-akha that are
covered by the prenup cover some of the
most complex and fraught areas of
contemporary sakawacha
and just as much it couldn't have been
done without the lay leadership the
lawyers who drafted it the community
leaders who encouraged
its embrace
because the success of the prenup
depends on its legal enforceability and
it depends on the willingness of the men
and women who will sign it to do so
now it's true in some ways
the prenup is unique
because there are a few other
initiatives
that so perfectly marry together
secular and religious problem solving in
one document
but in other ways the creative
imagination
and the collaboration of rabbinic and
leadership is just as necessary across
the spectrum of challenges that our
community faces
rabbinic leadership has much to gain
from the professionalism and expertise
that way organizations like the ou bring
to the table and vice versa
all our institutions i think across the
spectrum across the board
stand to benefit from enhanced
relationship building and initiatives
that integrate and bring together the
very best and most talented elements
that our communities have to offer
i'm happy to open the four to questions
and open a discussion about the prenup
yes
i'll repeat the question the question
was whether i see any progress
uh in the embrace of the prenup among
the more haredi or more yeshivish world
the answer is not enough because clearly
we have a long way to go it hasn't in
any real way been embraced
outside or i should say to the right of
the modern orthodox world
but we do hear some chatter as they say
um and there are some positive
indications
um
every once in a while some form of
dialogue takes place we're in touch with
people who are you know
well uh situated within that world and i
think
increasingly
across the spectrum of orthodoxy and
even to the right people are coming to
the realization that this is just an
entire tolerable problem i mean the news
a year ago of the arrest of people who
took quite a different approach to the
aguna problem uh i think woke up some
people uh to the notion that this is
just not
a tenable problem we can't continue to
live uh in a situation where couples
can't get divorced in the orthodox
community without being forced to some
level uh or without being exposed to the
risk of some level of extortion or just
a you know an uneven playing field in
divorce negotiation so i think there's
some awakening on that front and i'm
hopeful that that will
in turn lead to further embrace of the
prenup
of america has
but
about 18 years ago that a daughter of
mine was getting married
i was informed about this one and when i
moved forever not the mosha templer
actually had copies of it
i sent a car service the way before the
wedding to pick it up
nobody
could argue against something like that
but most people i think was totally
unaware of them yeah it's true or moshe
feinstein has in his chuvas a prenup his
prenup
is a much shorter form as you mentioned
is it's really just an arbitration
agreement that empowers the besden
you can name a bezel and empowers the
best them to determine issues relating
to the divorce it lacks that enforcement
mechanism that our prenup has but it's
true and the truth is even if
people were to just sign that form of
prenup that would be a step in the right
direction uh the system as it is now you
know where there's no prenup signed in
in many communities it's just uh
leaves it completely uh
open
yeah
uh yeah the question was how do we get
more rabbis to insist on using a prenup
and the second was how we have we've
been in touch with groups in israel such
as sohar um
about advocating the prenup the answer
to the first question is public
awareness you know
the rabbinical council of america has
been instrumental from day one in
getting
rabbis across north america to sign it
from the very beginning the rca passed
resolutions
past resolutions encouraging rabbis
some newer organizations such as the irf
have gone even further and required
their rabbis
to sign prenups
and they and they deserve credit for
that there's no doubt
there's no doubt so you know national
organizations have a responsibility and
i think to a great extent have stepped
up to the plate we need more uh national
organizations we need more uh people of
influence to encourage rabbis to do so
uh we've been we have relationships with
raquel levmore is an important mover of
the prenup in israel
organizations such as baitille and sohar
have encouraged the adoption to print up
there's a movement even within the
rabbanut i think now
to encourage the adoption to bring up
that's another important
frontier uh that that will benefit from
uh
from the adoption of the prenup although
clearly the situation in israel is a
different story entirely because there
the baitin has authority more so than
what they did in the united states so
it's a little bit of a different
situation
but clearly that's that's an area that
uh that needs to be also worked on
i should ask ben
when we spoke about what i mentioned in
my introduction the issues that we were
looking at this summer that's exactly
what we're
doing what we're trying to do is to make
sure that the prenup is enforceable in
as many states as you could imagine jews
living in and what some of the tinkering
that we're doing on a regular basis
is
precisely that reason we want to make
sure that this is enforceable wherever
we might find the gentleman or the
couple uh when ultimately classification
turns into a situation where the
enforceability needs to be retained so
the answer is
yes we're trying very hard to make sure
it's um
yes
this is a weissman's show but you know
i'm a lawyer so it's hard for me to
resist the podium um
you're exactly right the post nup um
california in general i don't know if i
don't mean to offend anyone from
california is the most difficult
jurisdiction when it comes to marital
matters because they have
very uh different strange idiosyncratic
laws when it comes to this stuff and i
would say that um i don't know 50 of the
time we spend worrying about the prenup
we worry about california and we address
issues that are unique to california but
we're certainly tackling it and we're
hoping that the version that we have now
would be enforceable uh in california
like it would be in new york or new
jersey or anywhere else but it's
interesting that you mentioned
california because that is a thorny
jurisdiction because of its unique
laws when it comes to this area
yeah for years we've had a separate
california version of the prenup that's
been really uh difficult it requires
both sides to have lawyers or at least
both the signed
waiver of lawyer representation full
financial disclosure it's a pain in the
neck of a document we're actually in the
next few weeks hopefully rolling out a
new california version that we hope to
may be much more streamlined so that's a
development hopefully in their own
yeah yeah no the expectation is
yes what the expectation is and
especially now with the new form the new
california form the expectation is that
uh prenup signed in new jersey will work
in idaho and we'll work in california
we're tackling that problem yep
yes
no
no meaning the get that's done under the
guise of the prenup where the prenup is
sort of lurking in the background
follows the typical
formalities of any get done at the
bethan of america
and
getting done at the beth in america are
universally
accepted by their abanot and elsewhere
we've never run into a problem of
someone challenging the propriety of a
get
that's been arranged by us
our team of um you've spoken about um
universal acceptance and it seems that
if it's it would be adversely required
um what we're doing to move along a near
universal
requiring the prenup is education events
like this getting the word out and
trying as much as we can to influence
the public debate and to get people uh
aware more aware of the prenup as a as a
solution uh and as an effective solution
um
the answer in terms of percentage we
actually conducted a survey of our rca
rabbis in 2009 and i don't have the
results here it was it was not a hundred
percent uh clearly but it was it was a
high percent and i could tell you that
among the rca rabbis that are rabbis of
big shoes that are the more prominent
and influential and that perform the
more weddings in america
i think that you'll find that the vast
majority of them
either require the use of a prenup or
highly encourage the use of a prenup and
i also think that the trend is moving in
the right direction and as time goes on
and as we share more and more stories of
the prenup having succeeded in its goal
of getting a get in a timely manner
more and more rabbis uh become aware of
the fact that this is just something
they need to require that they need to
encourage uh married couples to or
marrying couples to sign uh so it's uh
it's moving in the right direction i
think i i i hope at some point we could
say that it's uh it's been universally
adopted the truth is that the rca is a
diverse has a diverse membership um and
uh
each rabbi we live in america which is a
free country
which means that rabbis have
the autonomy to make decisions on their
own but the rci i i think should be
commended for spreading awareness among
its rabbis of the prenup for educating
its rabbis about the importance of the
prenup for passing resolutions year
after year about the prenup
and for raising awareness among the
community
the question was whether we've had
situations where a couple signed the
prenup and then went to a haredi besden
for their get how did that bes then deal
with the issue of the prenup the answer
is that if you go to any besden if both
parties present themselves and say we're
ready to do a get
it's pretty pretty much of a pro forma
event you do the get
the prenup really comes into play in a
situation where one side is prepared to
give a get the other side's not prepared
to give you a typically where the
husband is the recalcitrant party
and in those situations let's say for
example where a husband insists on going
to a different besden and the wife has a
prenup in her hand and says i want my
get now
the prenup
solves that problem because the prenup
names the bethdan of america as the
bethin with authority to determine that
case the husband loses his ability to
insist on going to another besden that
might be more sympathetic to his desire
to to delay the giving of the gap so
that's one of the
in terms of the mechanism of how the
prenup works that's really how it works
the wife has the benefit of now saying
no you have to come to the bathroom of
america we could then act unilaterally
even without his cooperation uh and
start charging him the support
obligation if he doesn't give the gap
uh the question was whether conservative
uh jewish rabbis or conservative judaism
except the prenup
the answer is it's really a different
landscape when you talk about marriages
performed by non-orthodox clergy
thanks to ramosa feinstein who was a
pioneer in this area and really paved
the way
for
for us in terms of dealing with status
issues that arise from the need for a
get
a wedding performed by a non-orthodox
clergy person at the end of the day
in just about all cases
very often
if uh if a spouse refuses to participate
in the get process there are sort of
other ways that we can look at the case
and hopefully free the woman to remarry
if it wasn't an orthodox wedding
obviously it's a case-by-case
determination but for that reason
non-orthodox weddings present much uh
much less of a of a high risk of uh of
egon um
conservative judaism
has kind of solved the aguna problem in
their own right because they do things
like
shin where they just kind of have a
magic way of
of of solving the problem even if
without a get if the husband refuses to
give a get so in a sense they don't need
the prenup because they could just
dissolve the marriage on their own uh
through whatever mechanisms they've come
up with
so so the answer is that the problem of
egon doesn't really present itself in
the same way in the conservative or
reform context and the prenup isn't as
necessary in that context
um okay the question was whether in the
dr maybrook survey or in study
uh the
signing of a post-nup had any effect on
bringing up issues of divorce that's an
excellent question i don't know the
answer because i don't think it asked
about the post up although i guess we'll
have to look it's a good question i
don't know the answer
i don't know the answer yes
i'm sorry
sure the question was can i explain
further what the post-nup is all about
post-up is really the equivalent of the
prenup but for people who are already
married a prenuptial agreement assigned
prenuptially before nuptials before
marriage a post-op is signed by a couple
that's already married who want to sign
on to the terms of the prenup and so
it's just a very slightly modified
document that makes it clear this
couple's already married and they're
agreeing to to adopt these provisions
yeah
sure yeah
uh the question was whether the best in
of america has any influence or ability
to convince organizations aligned with
the best of america to uh adopt the
prenup look the answer is that for
organizations aligned with the better
america meaning organizations like the
ou the rabbinical council of america
they have taken great steps in uh
promoting the prenup uh beyond that sort
of you know centrist orthodox community
um
we don't necessarily have the influence
and ability to get people on board with
the prenup we there are dialogues that
have taken place over the years um
conversations that have taken place
we've
not been shy about the success of the
prenup we try as much as possible to
share with the world how the prenup has
been successful and we hope that that in
the long run will
influence others to to adopt it yep
families to move outside of the eastern
seaboard to explore smaller and
sometimes first developing
fledgling orthodox communities
throughout the country are there states
uh the question was the ou has been at
the forefront of encouraging people to
move to uh more far-flung communities
outside of the new york area are there
states that were particularly concerned
about the enforceability of the prenup
you mean generally speaking you know
davis poke i should mention the
generosity of davis polk
and which is ben's law firm
in in terms of devoting those hundreds
of hours uh this past summer in
reviewing the enforceability of the
prenup
they deserve a lot of credit for that
they conducted uh you know when i when
we first talked about how we should
do this study i identify went on google
and i found the nine states with the
highest jewish populations
it's a fun
lunch table game to guess which nine
states have the highest jewish
populations
and they found that in those nine states
and i think they went even further and
looked at 20 25 states even
the laws uh governing the enforceability
of pre-optional agreements and
specifically this prenuptial agreement
were pretty much all
on board except for california which has
its own rules
but other than california everyone's
kind of in the same boat there's a
uniform prenuptial agreement act that
many states have passed
and so generally speaking there's not
one particular state other than
california that that concerns us i
wouldn't be worried about moving to a um
you know a community in texas for
example um even if it's not necessarily
one of the you know the states within
the nine top jewish population states um
so the answer is not really
yeah thank you
thank
i you this whole concept is wonderful
and it sounds like it could solve the
whole problem but i want to know did the
the
rca ever sit down in a room with russia
yeshivas of mir
of all right more right-wing orthodoxy
or who said the haredi world in america
because that's where the problem is ou
is doing a great job enforcing it and so
is rca but it's the other end of
orthodoxy that
i think is a problem did you ever
literally sit in a room like this at a
table with all the uh
the
performance
the answer is no there's never been a
summit where everyone sat around the
table
but and and i agree
you could organize it meaning
we're all in favor we're
okay
we're we're on board meaning rabbi
willig will show up and he told me he'll
show up any time any place to advocate
the prenup he's the man to do it he can
speak the halachic lingo and uh but but
the truth is the truth is
that's the question how do you get them
to come
so the answer is perhaps you need people
uh who are members of their communities
to uh to try to organize those kind of
uh meetings we're we're we're ready to
show up we're happy to participate
the revisions
i don't know if that's true but
but but to some extent they're you know
they're have conversation there have
been conversations it's not as if we're
talking about two completely isolated
communities there's there is there are
conversations that take place
my my experience my experience has been
that in situations where a massager
caducen who does not otherwise advocate
the prenup in situations where he's
presented with the prenup and let's say
for example the the kawa comes from a
family that insists on the prenup
they've gotten comfortable with it um
indicating that the objection is less
harajuku and more cultural
in those isolated events where even
massage recognition were prominent
and have relationships with prominent
postgame within the kharadi world
situations where they've been presented
with the situation
they've
they've accommodated it they've they've
accommodated it so that might be uh
perhaps a pathway towards
spreading the use of the prenup
literally bringing it up on a
case-by-case basis as people get married
you know to say look i'm a member of
your show i'm a member of your community
you are my rosh yeshiva you're going to
be my messiah conducion but in our
family we feel strongly that this is an
important document this is an important
communal problem
and it needs to be solved case by case
we we need to sign this prenup and uh
and maybe if enough people do that time
after time uh in a respectful way uh you
know and rep and and cognizant of their
hawaiian authority uh but again i think
that these are conversations that could
take place and there's an accommodation
that can be made on a case-by-case basis
over and over again that maybe that will
help spread the the use of the prenup
yep
uh we we haven't coordinated with other
religious bodies because i think that
this problem is a unique one to judaism
um
oh i understand we were saying i'm sorry
the question the question was to what
extent have we
sought to enlist the support of other
faith communities
to get state legislatures to be more
open to passing legislation that will
allow for the enforceability of the
prenup
yes
i i think the answer is that
organizations like the ou which have a
robust advocacy arm like ou advocacy
work with other faith communities on a
daily basis to pass legislation and to
the extent that we needed to enlist that
kind of support we could but
the reality of the situation is that the
prenup is enforceable under existing
laws thankfully um but but i agree that
would be a way to go if we needed to if
we needed to yep
thank you that's a good opening thank
you mr man um i i i'll take the
opportunity um i'll take the opportunity
uh
one of the things that the bet in
america does is focus on the prenup and
resolvaguna cases that's an active part
of what we do each and every day it
occupies a good amount of my time but
another service that we offer to the
orthodox community and to the entire
jewish community is uh arbitration of
commercial cases
the
is that where jews have a dispute the
appropriate venue for resolving that
dispute is abbesdan is a jewish court of
law and we are unique among the batte
din that are out there in terms of the
legal professionalism and expertise with
which we attack these cases
parties that bring cases before us sign
a binding arbitration agreement and we
conduct proceedings that look very much
like secular arbitration proceedings but
that are really torah-based
dna torah
and we issue
we staff the cases with panels
consisting not only of world renowned
tamil ham experts in khoshan mishpat and
jewish law but also a mixture of
businessmen attorneys some of the dianam
are both rabbis and attorneys
that's vital because very often
the right answer to a case depends not
necessarily or not exclusively on how
jewish law looks at a problem but on
also what secular law has to say about
our problem what the common commercial
practices
that might govern the outcome of a case
and so we staff the cases with that
diverse group or that diverse uh mixture
of expertise we issue reasoned decisions
as ben pointed out we most recent over
the last few year we started to publish
those decisions so you could get a sense
of what the decisions look like how they
bring that expertise from both kosher
mishpat and from secular together
in a rational way
we are governed by a written set of
rules and procedures that look very much
like secular arbitration rules and
procedures but again our torah-based
arbitration uh you can go on our website
and read all about this and get a uh
download uh you know examples
bethan.org but just do one or two more
questions because we have to change over
the room and bryan weissman's available
to
he's very engaging i know but he'll be
available to take any questions
afterwards please
20 years
have you adjusted the five
that's a good question i'll repeat the
question the question was 20 years ago
when rabbi wood first went to israel to
secure the support of some of the godown
for the prenup
the fine was set at a certain low amount
have we adjusted that and i shouldn't
say fine the support obligation was set
at a certain low amount have we adjusted
the support obligation since then for
inflation so first of all it's important
to note that the agreement itself
contemplates inflation and adjusts the
daily support amount based on the
consumer price index so if you got
married in 2004 and the rate was 150 per
day now it'll be about a hundred seventy
dollars per day uh based on inflation uh
we the original agreement that was first
published in 1994
set the rate or set the support
allocation at a hundred dollars per day
in
the early 2000s the form raised it to
150 dollars per day so now the standard
form sets the support obligation uh at
the date of marriage at 150 dollars per
day and then it adjusts for inflation
thereafter we're ready we're ready to
peg it up to the next increment which
will probably be about 200 a day but we
haven't quite hit that yet in terms of
inflation we check about every year or
two and we're hovering now if you if you
figure that 150 a day as of 2003 when i
think it was set we're now like 170 or
180 and we don't want to jump the gun
but probably in a few years we'll we'll
jump it up to 200.
the question is what what do you do
about a situation where someone's
judgment proof or so wealthy that they
don't really care i worry more about the
judgment-proof cases than the someone
who's so wealthy they don't even care
because what we found is that even
really really wealthy people don't want
to pay their ex-wife fifty thousand
dollars a year
they just don't like doing that uh
judgment-proof people
those are the cases that really scare me
you know a few years ago we had a case
of a guy who was declining to give a get
he had signed a prenup and he was just
he was living out of his car he was on
drugs he was like completely off the
grid
and i really worried about that case
and thankfully the case resolved itself
we part of the solution was that we were
able to get him into the room thanks to
the prenup the prenup itself
just
got us and got him into the room a
person like that who was in touch with
all sorts of uh characters
in a case without a prenup he would have
named some other bes then he would have
said i want to go to you know
some desden that my uncle has in his
basement uh you know
it would have been a really difficult
situation even to issue a seder against
a guy like that but because he had
signed the prenup we were able to get in
the room and the day on him rabbi can be
really really charming and uh convincing
when he's dealing with the again
he's really very good at that and that
that worked he the guy gave the get
so those are the cases i worry about and
the answer is that the prenup won't
solve every last case it's been
enormously successful but it won't solve
every last case but it's an entirely
different problem communally when you
have a problem that affects a few people
than when you have a systemic problem
that affects many uh and in that sense i
think the prenup is really the solution
to the problem
we want to thank rabbi weissman and we
want to thank the orthodox union i
should have mentioned the orthodox union
is the largest supporter uh financially
and otherwise to the basement of america
and we appreciate that and we appreciate
dr tannenbaum allowing us and giving us
this forum uh roy weissman will be
available for questions now thank you