Posted to Op-Ed on
by Yomin Postelnik

Op-Ed: Pre-Nup Is Not the Answer, Saving Marriage Is

The sum total of all of the recent discussions (from a halachic and moral standpoint) is that while everyone should strive to alleviate suffering and seek to resolve marriage disputes so that both can move on peacefully, we must first do everything possible to save the marriage.

Gittin are a hard process halachically largely in order to minimize the process.  Civil jurisdictions that have a 1 year waiting period before divorce (a concept that originates with Maimonides), such as Canada, have seen 60% of petitions withdrawn.

This is not only clear Shulchan Aruch (Even HaEzer 119), this is fundamental to Judaism.  Saving a marriage was the key mission of Aharon HaKohen and the responsibility of all to try to save as many as possible.  The continuation of the Jewish people depends on it.  With the affects of divorce on children (exponentially higher rates of truancy, substance abuse, delinquency, suicide and other factors, G-d forbid), make saving a marriage akin to saving a life.

Marriage is not seen merely as a relationship.  It is both the building block of the family and of raising children.  It is a responsibility far more than it is a matter of love, although that aspect is also important.  It must be protected in spirit and Shulchan Aruch mandates that people help save and repair one and look for ways to do this first and foremost.  By contrast, anything that threatens its spirit is harmful.

There are other important considerations as well, such as parental alienation and from a halachic standpoint, the exact wording of a Beis Din’s advice and what they can and cannot say to a divorcing couple have intricate laws.  If a mistake is made, the divorce can be invalid, just as one wrong word in the get can make it equally invalid.

It’s important to add the Rebbe’s words to the subject (see Igros Kodesh 24).

In Tammuz 5727 (Summer 1967), the Rebbe wrote a letter in favor of sane, rational solutions within halacha (the framework of Jewish religious law) favoring saving agunos (the definition of “aguna” then was clear and is misunderstood today, as will be explored below).  The Rebbe strongly cautioned against crossing the line of changing halacha.  This is not only because interference in such cases would be wrong (against Hashem’s will) and therefore harmful, as we see clearly today.

One does not have to wait until 5727 (1967) or letters to find the Rebbe’s opinion.  The first four volumes of Likutei Sichos are the most widespread and most foundational works of the Rebbe.  In the Sicha (speech) of Parshas Ki Seitzei (Vol. 4), the Rebbe brings the Chelkas HaMechokeik (one of the recognized commentators on Shulchan Aruch – the Code of Jewish Law), stating that even in cases in which one is obligated to divorce (which are serious cases and do not include divorce on demand), one should not rush to do so.

Of course, as a practical matter, one should not stay in a prolonged standstill, but defined steps to prevent divorce are an obligation.  Also, a non-obligatory divorce can only be suggested, ordering one or attaching a monetary fine to it can invalidate it as outlined above (to the same extent as a textual mistake in the document renders it void).

The Pre-Nup

Aside from the spiritual problem of mentioning a divorce document prior to marriage, which is a concern and serves to dampen the importance and strength of the commitment, the RCA prenup profound halachic and even potential legal problems.

The post-nup is even more problematic and if pressured socially, falls into the category outlined in Targum Yerushalmi (mistakenly called Targum Yonason), Deutoronomy 24:6 (that one who interferes in a marriage loses their portion in the World to Come, G-d forbid).  Fomenting worry and talk of divorce are extremely harmful.

The main problems with the prenup are:

a) There is no provision for counseling or attempts at reconciliation.  Almost all civil jurisdiction have such provisions, to be enacted by either party.  Torah marriage is more serious and a greater commitment, not a lesser one.  With today’s plague of divorces, anyone wanting to find solutions to Torah family problems would not exclude such a solution.

b) Far more serious, the usurpation of a local Bais DIn and its replacement with the Beth Din of America has the ability to render the get produced from such an agreement invalid.

A local Bais Din is best positioned to advise on marriage matters.  A get is specifically supposed to be handled locally for this reason.  But that is only part of the problem in designating the YU/RCA’s Beth Din of America, an organization whose attempted usurpation of local Batei Din was the subject of numerous legal complaints.

Stating that one is obligated to give a get when doing so is merely advisable, is not only far less effective than what is supposed to be said, but makes the get a “get mutah” (mistaken, and therefore invalid).  The Beth Din of America has a history of running roughshod over these laws, the result being “gittin” that aren’t worth the paper they are printed on.  This is obviously not my own opinion, but the written opinion of Rav Chaim Kanievsky, Rabbi Sariel Rosenberg, Rabbi Yechezkel Pales and others.

The RCA has also engaged in mass impropriety, some of it documented by the American Beth Din project.  One of the leaders of the “Beth Din” has 2 open seruvim against him from a Monsey Beis Din.  Having represented someone in a momenus case in 2008 in front of that body, I have evidence of impropriety in making financial decisions and although the “dayan” in that case was the now discredited Michael Broyde (founder of the Beth Din of America), the litigant’s rights were also usurped by Mordechai Willig, their senior “dayan” whose actions in several cases were found to be beyond the pale.  Documentation is available upon request.  Barry Freundel was also a high ranking member of this body.

In short, the body is recognized as an embarrassing Modern Orthodox farce amongst the entire yeshiva world.  It also should take a good lawyer all of two seconds of pouring through the American Beth Din’s research to invalidate any prenup listing the Beth Din of America, based on fraud and gross misrepresentation.

Simply substituting another, more reputable Beis Din, makes the prenup somewhat less halachically problematic and less open to legal challenge based on fraudulent misrepresentation.

c) The halachic logic behind the prenup is faulty.

Reb Moshe Feinstein ruled that one may coerce a get if all that the person wants is ill-gotten money, because you’re coercing him not to give a get but to forego to money (this does not apply to a case in which he is asking for a settlement al pi din).  However, all agree that money may not be exacted as a punitive measure if the husband does not want to divorce, except in those rare cases (extreme violence, etc.) outlined in Shulchan Aruch, Even HaEzer 154. $150 a day mandated upkeep of the wife is only warranted in those defined and limited cases.  In most cases, the fine renders the get “meusa” (forced and therefore invalid).

Rav Chaim Kanievsky has already written that one who gives a get based on such agreements must give a second get.  To have a “solution” that will cause questionable divorces isn’t proper.  A person who is divorced with a prenup will not find that get accepted by the Yeshiva world and any kids from a second union would, G-d forbid, be viewed with suspicion.  You can argue as to the merits of this, but since Rav Kanievsky’s ruling, and others, it is a fact that this would happen (and is pretty clear from Shulchan Aruch, for good reason).  This is especially not worth doing if only because another solution exists, such as the detailed involvement of local rabbonim.

Get refusal in any meaningful sense is rare.  The recent use of the term placed on anyone who refuses to give a get without a set number of counseling sessions or until the settlement of all marital issues (without which any get, which must be a “sefer krisus” is highly questionable to begin with) is not only ridiculous, but immoral.

Marriage is serious and divorce is a lifetime of pain with devastating consequences to children.  The Torah, in its wisdom, allows both sides the ability to try to prevent this, within reason.  The prenup and destructive YU theology disagree, but this is Hashem’s Wisdom, not to be usurped by self-styled leaders who cannot answer basic questions of morality.

A Workable Solution

One “bedieved” (not preferred but possibly halachically acceptable) solution would be to have an agreement that upon separation, Hashem Yishmor, both parties agree to go to a proper Beis Din with jurisdiction in their area for all matters.  This would also avoid costly lawyers who seek to promote strife for their own gain.  A number of the standstills in gittin stem from insane “orders of protection,” not taken out for any safety reasons, but as a one-up on custody or assets.  This is a violation of Torah law and divorce proceedings must take place in a Bais Din.   The consequences of not doing so are outlined in Choshen Mishpat 26.  This is not only the Torah right of each litigant, but also saves each much heartache and money in the process, not to mention how it facilitates dialogue and resolution, absent cases of real danger.

As touched on above, the definition of aguna is also important.  While it was the obligation to find any leniency to permit a war widow or someone whose husband had disappeared and to pressure a husband who would not care for the wife in extreme ways, it is also an obligation to seek to repair even other marriage, as outlined clearly in Even HaEzer 77 and 119.  Doing so also facilitates a get even if all else fails and would end the standstill in almost all cases.

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35 Comments

  • Great Dane

    I wish I had made a prenup with my ex. Most importantly, my daughter would be able to share time with both her parents. As an aside, heirloom jewelry and inheritance would have remained where it rightfully belonged.

  • A Male

    “the detailed involvement of local rabbonim” is precisely the problem and not a solution. The fact of the matter is people, primarily women, don’t trust the local rabbonim because men and women are not treated equally. If the proposed solution in this article was at all practical there wouldn’t even be an issue to begin with.

    It strikes me as though one of the biggest problems “local rabbonim” have with this concept is that it usurps their authority. But they must earn that authority. If they are unwilling to act others will and have.

  • Menachem Roetter (i stand by my comments)

    two points (i see more, but no time):
    1- “b) Far more serious, the usurpation of a local Bais DIn and its replacement with the Beth Din of America has the ability to render the get produced from such an agreement invalid.
    A local Bais Din is best positioned to advise on marriage matters. A get is specifically supposed to be handled locally for this reason.”

    one problem. no Crown Heights Beis Din does Gittin!!!

    2- “A person who is divorced with a prenup will not find that get accepted by the Yeshiva world and any kids from a second union would, G-d forbid, be viewed with suspicion.”

    simple solution: sign the gett b4 it gets to a point of enforcing the prenup!!

    • Citizen Berel

      It’s very special that you stand by your words and that makes your words very very special.

      Does it give you no pause whatsover, that you are giving halachic solutions and workarounds for a matter in which the wrong answer gifts you a mamzer in a basket. Since you (wait a minute be right back, googling… OMG!!!) are no rov, have you no fear or shame of maybe being a cook what serves mamzers in baskets?

      A mamzer in no basket is the same thing as mamzer in a basket. Except for the basket.

      EVERY AGUNA IS MY SISTER!!!!

    • Reb Zalman

      Och Un Vay tzu unz.
      Mr Roetter as the first one to tell you.
      People may think you are smart and very nice. BUT let me tell something to YOU Jews have Torah whether you like it or not its still OUR TORAH.
      God Gave Moses the ten Commandments did hear about the Fifth Command ?
      Honor your father and your mother: that your days may be long upon the land which the Lord your God is giving you.
      and the Torah Command the Jew to Honor his father Before his mother .
      so mr Roetter you are very wrong.
      and if you cant observe the ten commendments WHO ARE YOU ???

    • to menachem rotter

      i would like to make a very serious point to you

      just because someone goes through a situation does not make them a professional in that situation for example if you in a car accident and broke your leg and needed surgery does not mean you are now a doctor or a car maker or a lawyer, you may have some more knowledge then someone who was never involved in a car accident but it does not give you the right to have your say over a real professional.

      same goes the other way around a doctor can know more about surgery even if he never needed that surgery

      point is im sorry you came from a broken home but that does not make you a professional in marriage divorce relationships or halacha

      if you want to have a real opinion get educated instead of just screaming nonsense all the time

    • Yomin Postelnik

      I don’t think it’s right to go personal on Menachem Roetter. What Citizen Berel said is true (that playing around here could cause mamzerus), but to the other posters, even Chazal said ain odom nitfas al tzaaro and it would be better to encourage him to find helpful solutions instead.

  • Izzy

    From reading just the first 3 paragraphs I got a disturbing feeling. To start “preaching” about the importance of marriage, seems very disconnected and like you’re in your own world.

    It’s like preaching about Bitul Torah, Lashon Hara, etc. without any context.

    The ideal situation may be that nobody should be molested, killed, attacked, beaten or whatever. But that ideal is irrelevant in reality.

    This ideal of all marriages working sounds simply disconnected. Many marriages should end, and many people who don’t follow through with divorce because they have to wait a year, are doing it for the wrong reasons.

    The research also may be flawed. Children of divorced parents can be just as healthy as anybody else. It may not be the divorce that has anything to do with the problems. The divorce itself may be one of the results of a home with strife and dysfunction. And so the divorce may contribute to helping the health of the family members that can be helped, especially the children.

    I don’t believe that flying in the skies with fantasies is part of the solution, I believe it’s part of the initial problem in the first place.

  • Izzy

    Another point: You mention the emotional issues with a Pre-Nup. Do you know that a Kesubah is related to concern that the husband may divorce his wife?

    It won’t be like they will each talk about it and discuss it and dwell in it.

    It would simply be included.

    By the way I don’t have an opinion on this. I’m just reading the article and commenting. I find that many articles magnify one point and with this distract from many other obvious and contrary points. It seems dishonest and disconnected to me.

    I can write entire articles about a 1,000 other topics based on Shulach Aruch that are ignored today. I think that we often lack context in these discussions.

    • Milhouse

      A kesubah is the exact opposite of these pre-nups. Its entire purpose is to discourage divorce, not to encourage it!

    • Izzy

      Berel it seems you did not understand my point.

      He was saying that bringing in a pre-nup is including the worry of a divorce when a young couple are embarking on something full of joy, happiness, and hope.

      I was saying that the Kesuba is also bringing in that same thing. It’s saying “let’s do this so that I won’t come to divorce you easily”. That’s all.

      I have no idea what should be or should not be done. I am just pointing out that certain arguments are faulty and not reality.

      If a pre-nup is included, it will just be something that is done. Not a whole big thing.

      And again, I have no idea what should be done. But when I see what seems like a faulty point, I think that’s a mistake. Stick with the truth.

  • Menachem Roetter (i stand by my comments)

    problem 3- “It’s important to add the Rebbe’s words to the subject (see Igros Kodesh 24).

    In Tammuz 5727 (Summer 1967), the Rebbe wrote a letter in favor of sane, rational solutions within halacha (the framework of Jewish religious law) favoring saving agunos (the definition of “aguna” then was clear and is misunderstood today, as will be explored below).”

    when quoting a letter from the Rebbe DO NOT include ur own opinion!!!!!!!!!!!!!

    • Rabbi S

      Dear chef Menachem,

      I understand you come from a background that makes this topic emotional for you. I Truly feel for You and your siblings and your parents and hope you all have nothing but joy. However I think you are allowing your feelings to blind you.

      Firstly the Author did not add his opinion he explained a simple Hebrew word: Agunah. It is not different from him translating the letter.

      Secondly not every man and woman going through a divorce are your parents. Joining your parents case to every other possible case only weakens your point it doesn’t strengthen it.

      If a couple marries with a prenup they might as well write “when we divorce” not if we divorce”

      Every Agunah and in fact Jewish woman is my Sister. What a beautiful line. But dont forget every Jewish man is my brother regardless of his circumstances and every Jewish child is my future.

      Please know this is not a attack but said with love and affection. May the words that come from my heart go to yours and may we soon see the day when we all march properly from 770 to yerushlayim with our Rebbe

    • Lets get real

      Really missed the point of the article have you?
      The author problem with the pre-nup is everyone’s rush for Divorce without going for counseling.
      In many countries even the civil court mandated counseling before proceeding with the legal divorce(Canada and Italy amongst others) We as Frum jews who view Marriage as something holy: more than just a “Tax break” should try to salvage the marriage if there is still that possibility, something that the pre-nup is missing.
      Yes certainly in cases where there is no hope for the marriage there should be a Get given as soon as BEIS DIN says so.

  • Izzy

    I’m personally not impressed with so much here. The level of bad mouthing of others is ongoing in the article. So will you now quote the terrible ramifications of that? How this is actually the very worst thing a person could possibly do?

    Or do you feel that there is a context for this?

    There is a context to reality as well. I don’t know you, but it seems to me that you have a very childish and black and white perspective of the realities of people and of marriage. Your talk of saving every marriage, is like the talk of people who want to stop all wars in the world or who want to just bomb entire countries to stop their acts of hostility.

    Sounds very immature and disconnected. Theories, philosophies and fantasies that lead to real pain for real people.

    I apologize for saying this, but I can imagine this article being written about protecting child molesters or some other ideal without context and awareness of REALITY.

    • Citizen Berel

      yoUr apoloGy is accepted Mr. Izzy. next time thougH yoou need to cllect yourself and write your thoughts in 1 comment … so thtat you don’t come ofF as very WRked UP!!!!

    • Yomin Postelnik

      Izzy, why does your side always look at the one in a hundred or less cases (that Shulchan Aruch also deals with, just without throwing out the baby with the bath water) and apply it as a general rule, the end result being the lack of any attempt to save thousands of marriages? Fortunately, Hashem’s way says otherwise. The piece isn’t disconnected from reality. It’s disconnected from the worst excesses of cynicism.

  • perplexed

    Why does a every Tom, Dick and Harry get to comment on major issues concerning Yiddishkeit today.

    Who are you? What are your credentials in this manner?

    This is an issue that many great Rabbonim are tackling and many of them are very supportive of the penup. Who are you to disagree?

    • R

      I don’t know the author, but I give him credit for apparently using his real name which you can use to do easily find out what he is leaving out of his article.

    • Citizen Berel

      That’s very special Mr. perplexed because none of those rabbonim have written the 5 or 6 previous op-eds on this and that website-what-greets-you-with-the-giant-popup-ad-on-its-home-page what have mentioned favorably this contentious issue which many rabbonim oppose.

  • one-comment

    The issues are too complex to simplify and the variety of reasons for divorce (including Halchik) can not be mitigated , corrected or resolved by means of a SINGLE solution.

  • eli

    The real victim(s) in all of this are the children. All the money, jewelry, etc. will not mend the souls of the innocent children involed in some of these idiotic and brutal battles.

    We need responsibility – tons of it. Unfortunately not the divorcing parents, rabbis, attorneys, etc. posess an ounce of it.

  • Gittin was never handled by local chabad rabbonim!

    In fact, during the rebbe’s reign, it was known that gittin was handled by non-chabad, non-local rabbonim – both gittin and giyur were not handled by our own beis dins!!

  • dovid

    its outrageous how the author is trying to invalidate gitin from serious rabanim. he also quotes many times hagaon r’ chaim kenevsky. but r’ chaim is not a posek hador by any stretch (i dont think he is even a standard posek) and he is known for many extreme outlandish psakim. and by the way i dont support this prenup idea.

  • yitzchak

    Dear yamin not evry marriage Can be saved sometimes divorce is the only way

  • Aden Robin

    I am very glad to see there is conversation about this extremely important issue of get refusal and the solution of the halachik prenup/postnup. However, this article is clearly written by someone very emotional about the topic with a clear agenda and one sided views. To learn more about the halachik prenup/postnup, its’ creation, the rabbinical authorities who endorse it, you can look at the website of the halachik prenup which is very informative http://theprenup.org/rabbinic.html
    There will also be an event in Crown Heights tomorrow night Sunday March 29th 7:30-9pm with educational presentations about the Halachik prenup/postnup if you are interested in learning more and asking questions https://www.facebook.com/events/337429933133540/

    • religious jew

      You are not helping your case. You claim that halacha backs up your idea and to prove you invite people to the local reform temple

  • Biased Author

    It is noteworthy that the author of this article reportedly refused to give his wife a gett and his wife sought help….it is therefore not surprising that he takes the stance he did in this article.

    • Yomin Postelnik

      Yes i actually chose to listen to real rabbonim (and worked with the very pro-women South Florida Bais Din throughout), secular professionals and others. I’m somewhat biased toward them over mudraking internet trolls or YU activist creeps. Here’s what Rabbi Senderovic (av beis din, rov who converted our kid – adoption, Twersky’s Rosh Kollel, etc.) had to say (posted on a site some friends put up to counter the mud that you seem to enjoy):
      http://www.yominpostelnik.info/professional-statements-concerning-yomin-postelnik.html

      Rabbi Osdoba and several others were consulted as well.

      Here’s what my children’s mother had to say about people like you, legal tricks, etc.:
      http://www.black-and-right.com/2014/05/06/defamation-yomin-postelnik-depravity-left-push-divorce/

      So yes, aside from the need too educate people about normative halacha and why Rabbi Elyashiv felt they could cause mamzerus, which is why this was written so quickly (so that well meaning people could be informed of the consequences of the post-nup in accordance with halacha and not CAY), i also have personal experience with the low level lies and tactics of the side that doesn’t follow halacha in favor of biryonisher tactics and sinas chinam – and which also have zero effect on the cases other than causing no get in many cases, even after all reasonable things have been done (which is not something I’d do).

      Maybe i should do another op-ed on internet defamation.

  • Menachem Roetter (i stand by my comments)

    in response to the people who responded to my previous comment

    Citizen Berel: i have never once said i was a rov. are you a rov?!? no. we are both just people with opinions. i was not “giving halachic solutions and workarounds” i was merely pointing out the 2 (actually 3) main issues with the article.
    and i cook mamzers in baskets?!? you totally lost me at that comment!
    and YES every agunah is our sister!

    mr. Zalman: yes i keep the ten commandments (and all others), how dare you suggest i dont. i do honor and respect my dad as my father. (i cant say anymore i LOVE him as a father.) i DO NOT however honor or respect him as MY MOTHER’S HUSBAND! you may not agree (as hopefully you have never been in this extremely difficult situation) but there is a difference between the two titles. and that is where i draw my line.

    “to menachem roetter” unsigned: i do not try to be an expert on divorces, i am merely a child of a “broken home” who is raising a voice against all those who THINK they know what a child going through this thinks. i dont tell people they have to sign a prenup. i WANT them to do their own research! i WANT them to look into it and decide as a new couple. and ive spent time educating myself on the differnt aspects of the prenup (halachic, legal, and rabbinical backing). therefore i am not “screaming nonsense” i am saying my research findings. and besides, that has NOTHING to do with what i actually wrote in my comment, so lets stick to the topic please.

  • Abid in Hashem, Save Marriages!

    FOR THIS REASON A MAN SHALL LEAVE HIS FATHER AND MOTHER AND THE TWO SHALL BECOME ONE FLESH; so they are no longer two, but one flesh. What therefore Hashem has joined together let no man separate.

  • Anonymous

    There are many instances where mental health is an unknown issue at the time of mairrage. Women need to protect themselves for such circumstances (which was the case with me).
    Unfortunatly there are circumstances that are not “fixable” ie; addictions, abuse and mental illness and many times all three of these problems!