‘The Prenup Is Not Foolproof’

For many agunot, halachic document won’t break their chains.

12/04/13
JTA
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For years, Rachel Light felt like a hostage, worried she would be forever trapped in her marriage to Eben Light.

Even in April 2012, after Eben was arrested for allegedly threatening her and was slapped with a restraining order, Rachel was unable to get a writ of Jewish divorce, or get.

That made her an agunah — Hebrew for “chained woman” — putting her in the company of hundreds of other Orthodox women who cannot remarry because their husbands refuse to grant them divorces according to Jewish law, or halacha.

Fortunately for Rachel, who was Modern Orthodox, she and her husband had signed a halachic (Jewish ritual) prenuptial agreement. In 2013, hers was the first such prenup to be enforced in a U.S. civil court. Light obtained her get and a substantial financial settlement in Connecticut.

“I’m so thankful that I happened to have signed it, because I don’t know that I’d be remarried today with an awesome, wonderful new family without it,” Light told JTA. “But nevertheless, it’s not going to be able to help everybody in every case, and I would love to see a solution that could.”

First developed in the 1990s in an attempt to protect women from becoming agunot, halachic prenuptial agreements stipulate that the couple in a dissolving marriage must come before a predetermined court of Jewish law. If the man refuses to provide the get, he must continue to support her, typically in the range of $150 per day — an agreement enforceable in civil court.

Yet while halachic prenuptial agreements have been touted as a solution to the agunah problem, they have hardly been a panacea — because many are reluctant to sign them in the first place.

“Those who are most likely to need to use it are least likely to sign it,” said Rabbi Jeremy Stern, director of the Organization for the Resolution of Agunot, or O RA, which says it deals with more than 150 cases of agunot per year.

The problem is unique to the Orthodox world, because non-Orthodox movements have rejected or found ways around traditional rules that give husbands practically all the leverage. And, frustratingly for advocates on behalf of agunot, most Orthodox couples hail from segments of the community that aren’t interested in halachic prenups.

“The problem is in the black-hat and haredi community, where they don’t have prenups or rabbis don’t agree to enforce the idea of having a prenup,” said Stanley Goodman, director of an organization known as GET - Getting Equal Treatment.

Rabbi Avi Shafran, spokesman for the haredi Orthodox Agudath Israel of America, said Agudath does not advocate the use of halachic prenups.

“There is a concern that introducing and focusing on the possible dissolution of a marriage when it is just beginning is not conducive to the health of the marriage,” Shafran said. “I don’t think it is really possible to gauge their efficacy without data, and in any event, it would be impossible to know when the existence of a prenup might have eased the way toward a divorce when a marriage might, with effort and determination, have been saved.”

Even the centrist Orthodox Rabbinical Council of America, which reiterated its support for prenuptial agreements in a statement last week, does not require its member rabbis to request a halachic prenup before performing weddings.

“Rabbinic authorities that are guiding the RCA, with whom we consult, feel it is inappropriate to make an absolute obligation for members,” Rabbi Mark Dratch, executive vice-president of the RCA, told JTA.

The RCA’s public statement on prenups came on the heels of several high-profile cases of get refusal. In October, the FBI announced it had arrested a group of men in New York who were accused of taking money to use violence to compel recalcitrant husbands to give gets. Their methods allegedly included kidnapping and the use of electric cattle prods. Agunot were paying tens of thousands of dollars for the service.

In early November, the New York Post featured on its front page the story of an agunah from Lakewood, N.J., Gital Dodelson, who said her husband’s family had demanded $350,000 and custody of the couple’s son in exchange for a get. A storm of media coverage followed, prompting the husband’s father and uncle to temporarily resign from their positions at Artscroll, a leading Orthodox publishing house.

One of the main problems with the halachic prenup, advocates say, is the lack of enforcement of its financial penalties.

Although the agreements stipulate a daily fine to be paid by the husband to the wife while a get is refused, these fines are nearly always waived in exchange for the get itself, according to Rabbi Joel Weissman, director of the RCA-affiliated Beth Din of America, the religious court that oversees many agunah cases. In current versions of its halachic prenup, the Beth Din of America exercises absolute control over the payments and may waive them at its discretion.

“They’re emasculating their own prenuptial,” Susan Aranoff, co-director of the advocacy organization Agunah International, said of the Beth Din of America. “The way the Beth Din enforces it is a smokescreen that deprives the woman and does not protect her.”

In response, Weissman told JTA: “In a vast majority of cases, the woman will walk home with the get and not push the case for support.”

Rachel Light says it wasn’t until she took her agreement to civil court in New Haven that she was able to receive her get. Her then-husband had avoided multiple summonses to the beit din without any consequences, she said.

In such cases, the beit din, as an extralegal entity, has only one recourse: to issue a seruv, a religious contempt-of-court order akin to excommunication, in which the recalcitrant party is banned from participation in synagogues and other community institutions. In cases where individuals are indifferent to this exclusion, or communities are unwilling to cooperate, the seruv may be ineffective.

While civil courts have more tools at their disposal, that route presents challenges, too. Light’s case took a long time, cost a lot of money and ultimately did not guarantee that her husband would grant her a Jewish divorce — only that he would have to pay if he didn’t.

“I would love to think that our rabbis could come up with a more direct, protective solution, rather than a circuitous thing that maybe some rabbis will use and maybe some couples will sign — which you have to take to civil court anyway,” Light said of halachic prenups. “I would love to see our rabbis take this on full force and say this is something that we won’t allow.”

Judy Heicklen, president of the Jewish Orthodox Feminist Alliance, which will feature a session on agunot at its Dec. 7-8 conference in New York, says a Jewish legal solution must be found to obviate the need for enforcement in civil court.

“The prenup is not foolproof,” she said. “And on a philosophical level, we would hope that the halacha would be strong enough to find a solution within halacha and not have to rely on secular authorities to solve a human suffering issue that we should be able to solve within our own legal system.” 

editor@jewishweek.org

Last Update:

12/28/2013 - 12:24

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SK: I don't know how you can generalize for every case in the Jewish community based on the few fathers you have represented. I have come across injustice on both sides. One father was totally messed over because he chose to follow the advise of his Rabbis and eventually used an incompetent orthodox Jewish lawyer that almost put him in jail. The flip side, is where the father uses the legal system to his advantage over the woman's limited financial means and she loses out (actually lost access to her kids).

Support payments of, say, $150 per day, can fail even if enforced. If the man has no assets, a court order is meaningless as we do not have debtor prisons, nor does Israel. At the other end, if the man, or, more likely, his family, is wealthy, that $55K per year payment might be too small to provide real pressure. ---Mark Berch

The Agunah problem is the religious equivalent to Civil Contempt. In a civil contempt case the keys to the jail that holds you are in your own hands. In civil divorce cases that usually means pay up what you owe or fix the situation that's creating the contempt. Thousands of good men and fathers are jailed each year because they just cant afford to pay what the courts have imposed on them. The Civil Divorce system is broken and gender biased all of us involved in the industry know this for a fact.

The Jewish courts are notoriously corrupt and the left and right jewish orthodox wings have completely opposite views on divorce. By my understanding divorce under Jewish law has to be given by a man willingly and accepted by a woman willingly. extremely limited exemptions apply.

The Agunah is the religious equivalent to US civil contempt laws but with more options. The Agunah almost always holds the keys to her own perceived imprisonment she can either fix the situation that caused it (pay up what you caused him to loose and or allow him to be a father to his kids). Alternativley set aside your ancient and gender biased belief's and move on. They cant have both.

I am a fathers rights attorney practicing in NYC. I myself am not Jewish but have in the past few years represented several Jewish men in divorce.

Reading the article today has made me have to comment, a practice I normally vehemently refrain from doing.

The Civil Divorce system is broken. Men have very little rights if any, and only those that can afford high priced attorney's have any chance at all of coming out with anything but huge debt. The rest are systematically destroyed and many are even jailed. The system creates criminals out of good men and fathers and the women get away with lying and manipulating the courts with full immunity from the law.

I am not familiar with this particular case but have seen several very similar. The first two paragraphs of this article pretty much sums it all up.

In over 80% of all cases its the woman that wants the divorce, the men are usually the ones that fight to keep the marriage going. The woman then have to force the issue by hiring an attorney and suing in court for the divorce. The majority of divorce lawyers follow the same path and that is to get the husband out of the home as quickly as possible. They then proceed to reduce him to nothing more then a welfare state for the wife in the most disgusting and demeaning way.

The easiest and quickest path to this is to start by turning them into criminals. It is common practice to immediately get restraining orders based on lies or exaggerated truths because we all know nothing will happen to the woman. What's worse is the husband has no clue that its happening and isn't even allowed to defend himself.

At that point its all down hill for him. Most men go into panic mode and actually do break the law in one way or another thus proving the need for the restraining order to begin with. Cause and effect. Its perfect tactics and works 99% of the time.

In this article to me the second sentence explains the first. The restraining order based on allegation's is just that, quite probably false allegation's (standard tactics). The fact that she is now stuck in a religious marriage is true. But cause and effect!!!

For me as a fathers rights attorney, the shame of it is I don't have more orthodox Jewish clients because the rest have absolutely no recourse whatsoever. Suicide is not uncommon.

The answer is for all divorcing couples to be civil and collaborate, and this is especially true with orthodox Jewish women. Most if not all of you bring this upon yourself. If you live by your faith you die by your faith and anything you will do will be judged by your faith.

SK

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