Thank you, Sharon and JOFA for arranging the blogcast and inviting me to participate.
Regarding the effectiveness of prenups, a number of points need to be made:
1. Prenups are only effective if they are used. We still have a long way to go before they are the standard in the Modern Orthodox community, let alone all of Orthodoxy. We owe the RCA and the BDA a big debt of gratitude for instituting the prenup in a way that it is effective according to halakha and secular law, and that is being used quite often. That being said, I believe a recent internal poll of the RCA showed that it was only being used 50% of the time (perhaps I am mistaken, and it was 50% of the rabbis). This figure might be somewhat inaccurate, but the bottom line is is that there is no excuse for it not to be used 100% of the time. The RCA can easily make it a requirement for membership, and they have chosen not to. This, of all things, is not the place to be pluralistic! If rabbis are required to use it, then it will be non-negotiable at every wedding ("I'm sorry, my rabbinic organization does not allow me to forgo this, even though you the groom may not want it"), and the strength of the moral statement behind it can help it to become a standard outside of MO. I should mention that YCT requires all of its rabbis to use a prenup, as does the IRF. As I said, we are deeply indebted to the RCA for the prenup, and it is critical for them to take the necessary step and make it required.
2. Failure to secure payment for the terms of the prenup is not just a financial issue (although there is the reality of pain and suffering that is not being compensated for) - it is an agunah issue as well. In this reality, there is no incentive to give a get sooner - why not just schlep it out? Heck, I won't have to pay anything as long as I deliver a get in the end. The husband thus continues to exercise power and control over his wife throughout the process. While a get will - God willing - result in the end, the basic power imbalance and abuse continues.
3. This brings me to the final point about prenups - the argument that it is 100% effective. I believe that that is true - that it has always resulted in a get, and - as stated - we require all of our rabbis to use them. That being said, they do not change the power dynamics, and this means that a lot of compromises, not just the waiving of the payments of the prenup, are being made along the way.
Let me share with you a story. A few years after my mother aleha ha'shalom died, my father began to date again. Every time he would take out a divorced woman, he asked her if there had been any problems with the divorce or around the gett. Every single woman responded that she did not fight her husband on anything - custody, support, etc. - because she did not want the gett to become an issue. My father said to me that it was at that stage that he realized that every woman who has been through a divorce is an agunah. As long as this tremendous power imbalance remains, a woman will always concede more than she would, will always act in fear that the gett could be used as a weapon, even if it hasn't been brought up at all.
It is thus critical to prevent a protracted gett process, and to neutralize the tremendous power imbalance that undermines the fairness and justice of every case of religious divorce, that we work to find other solutions to be used alongside the prenup that will make the process of religious divorce as fair and equitable as the process of secular divorce is.
I will post later to add to these thoughts.
I am thrilled to hear that in Israel the presence of the prenup has led to almost immediate compliance by the husband. My sense is that in the U.S. this is far from being the case. We must on the one hand recognize how powerful and effective the prenup has been and demand its use at every wedding, and at the same time stop hiding behind the "100% effective" statistic which hides the often prolonged and agonizing nature of the process, and the profound power imbalance which leads to so many concessions along the way.
Thank you, Keshet. I first want to reiterate that we all must be strong advocates for the prenup and that YCT (and the IRF) absolutely mandate it for its rabbis. It is enormously effective and we must constantly underscore and proclaim this fact. The question is – do we stop there? Have we fully solved the problem?
I think the real point of disagreement here is whether the reality in the US is as you describe it. From what I’ve heard and seen, the picture is not so rosy. Even with the prenup, these matters can take years, and women feel abused throughout the process, and do wind up making concessions that they would otherwise not have. I would love to hear from those who are in the trenches about what they have seen. Has the prenup in the US not only produced a gett in the end, but also created a parity between the parties and led to a quick resolution of the issue?
I think that additional work is clearly needed, that we can be strong advocates for the prenup while we continue to look for additional strategies and solutions. There are still two areas that need to be worked on within the world of prenups:
1. Making the prenup even better than it is. This is in line with what Rachel Levmore was describing is the reality in Israel with the Agreement for Mutual Respect – a document with no discretion and no wiggle room. I see no reason why the prenup in the US cannot be modeled after that.
2. Making it required – and I would encourage ORA, JOFA, and other organizations to actively advocate for that to be the policy in all rabbinic organizations. I also would encourage shuls to make it a requirement of the rabbi and to put it in the contract. Perhaps JOFA can start a list of rabbis who require prenups and shuls which demand that their rabbis use prenups. The modelling and publicity could be very good for the community and the cause.
Other additional solutions are more drastic but, in my mind, need to be explored. These include the Tripartite Agreement suggest a few years ago by Michael Broyde, but actually suggested a hundred years ago by great rabbis working to solve the agunah problem. It is a way of bringing together all the possible devices – hafka’at kiddushin, tnai bi’kiddushin, and minuy get – so that even if any one of those solutions can be critiqued, their combined force should definitely be effective. For those who want to see an overview of some of those solutions, you can see a source packet the I prepared on this topic. Rav Yoel Bin Nun, who recently penned an impassioned piece on the culpability of the rabbinate for not coming up with a satisfactory solution, has advocated a similar approach focusing primarily on pre-assigning a get.
Recently, a powerful added component has been added, that of da’at and mekach ta’ut. This new document states that if these solutions – tnai, hafkaah, etc. – are deemed to be non-effective, then the couple fundamentally does not want to enter into a halakhic kiddushin, and the whole kiddushin is b’taut. I believe that for a lot of people there is a deep truth here – that they do not want to enter into a halakhic kiddushin that does not fully neutralize the agunah problem.
It is my understanding that there is a growing number of people who are using the Tripartite agreement, or some variation of it. I have heard from multiple sources that Rabbi Riskin uses some version of it, although I have not verified those reports. It should be noted that using a Tripartite Agreement can be done in conjunction with the standard prenup – these do not have to be seen as being in competition.
I understand those who feel that these solutions are too radical or dangerous. To them I would say – fine, then at least beef up the current prenup, as discussed above. But don’t be complacent. As long as one woman is still suffering, as long as we have not achieved total parity, we cannot allow ourselves to think that our work is done. I would also add, that even for those who are not happy with the halakhic devices used in the Tripartite Agreement, its presence will do a lot to level the playing field. The same way the presence of the gett – even when the husband has not threatened to withhold it – can serve to change the power dynamics of the couple in the middle of a divorce, the presence of something like the Tripartite Agreement, even if it is not used, can do a lot to reestablish balance in those dynamics.
End of the day –if you totally reject searching for other strategies, at least don’t sleep easy at night until the use of the prenup is required by every rabbi and until the provisions of the prenup are strong enough to truly create parity between the parties.