Sunday, August 20, 2017

Rabbi Michael Broyde Responds

A Very Short Reply to the Many Substantive Comments on my Article: An Initial Analysis of Rabbi Moshe Sternbuch’s Teshuva on the Beth Din of America’s Prenuptial Agreement 

by Rabbi Michael J. Broyde


Thank you to many people who made substantive comments.  I share a brief reply to the many substantive thoughts voice in the comments section.  (I have not repeated any of citations that are found in the original article.)

Before I reply, I want to encourage all to listen closely to shiur by Rabbi Mordechai Willig שליט"א on this matter.  (One of the commentators also mentioned it.)  I believe that everything I have written is consistent with his remarks and Rabbi Willig says many other interesting things as well that I did not touch on.  Rabbi Willig remains a fountain of wisdom in this (and many other) areas.  Let me add that Rabbi Willig states directly in his shiur – based on his own and direct conversations with Rabbi Sternbuch שליט"א himself – that Rabbi Sternbuch’s view is NOT (as one commentator claims) “that any payment that is triggered by the failure to give a divorce is in essence a penalty” but rather that the payment that is triggered by the PNA has to related to the proper amount of support due in financial reality, given the economics of the community and person.  That is both the only reasonable way to read the teshuva and is now attested to by Rabbi Willig as something Rabbi Sternbuch said directly to him as his own view as well.

The remaining substance of the many comments fits into four categories.

First, some argue with my read of the economic fact in the Modern Orthodox community which uses the BDA prenup. I reproduce below what is referred to an Apendix A in the paper, which was not posted in the prior version and was written by Professor Leon Metzger.  I think it makes it clear that for large segments of our community, around $150 a day is reasonable support measure for housing, utilities, health care, car costs and insurance, personal care, housecleaning and clothing.  

I recognize, of course, that both around the United States and outside the United States, these numbers will change, but as the chart below shows, $150 a day is a good starting number and halachicly reasonable.  As I note in my comments, I have no particular problem with changing this formulation to “construct a new document in which the spousal support provision was not set at a fixed number, but was instead indexed to some official government averages for income and cost of living in the time and place in which the couple was domiciled prior to the dissolution of their marriage.”  

That number might be higher than $150 a day of course in some locations.  My sense is that secular courts have a preference for precise and non-liquidated damages, which would make this formulation more complex.  On this chart with its 38 locations calculated, only South Bend Indiana is below $100 a day and the overwhelming majority of locations are above, or at, or very close to $150 a day (including, Silver Spring, all of the Manhattan locations, Queens, all of the Brooklyn locations, Monsey the Bronx, West Hempstead, the Five Towns, Teaneck, New Rochelle and Scarsdale).

It is important to add that the halachic rule (See Tur EH 70 and Shulchan Aruch EH 82:3, 89:1 and many other places) is that the wife is entitled to support at either the level of the husband’s standard of living or the wife’s pre-marriage standard, whichever is higher.  (Thus, when a man from South Bend, Indiana marries a woman raised and living in the Upper East Side of Manhattan, and they live in South Bend, the rate of $150 a day is completely proper.)



Second, many ask what to do in cases where for one reason or another the woman is not entitled to support as a matter of halacha (such as she is a moredes) and yet the BDA Prenup mandates support.  There are two  primary answers, each important and independent of the other (and a third that is less relavant).

One approach is of the  Tzitz Eliezer I quote here from my book (page 51) “Marriage, Divorce and the Abandoned Wife” at page 51:

Indeed, this policy is noticeably different from the policy of the rabbinical courts in cases where the woman is a moredet (a "rebellious wife") and thus, according to most authorities is obligated to be divorced. In the case of a woman who is a moredet (such as, in the case Rabbi Waldenberg addresses below, an adulteress), a husband has no right to both decline to support her and decline to divorce her. As Rabbi Eliezer Waldenberg notes:

[When a woman has improperly abandoned the marital abode (is a moredet)], she forfeits her (marital) . . . rights and other financial claims against the husband. However, on the other side, the husband must [chayav] divorce her and may not keep her connected to him.[1]
Waldenberg states that the ruling (psak) of the Israeli rabbinical courts, with which he agrees, is to require support payments to be paid even to a spouse who improperly abandons the home and is an adulteress, when a reasonable time has elapsed and the husband has not ended the marriage by writing a get. Indeed, in the case of a moredet, no less an authority than the Pitchai Teshuva (Even Haezer 154:4&7) notes that the accepted practice is to make the husband support his wife (until he gives her a get) specifically to encourage him to give a get and not to compel a woman to remain in a "dead marriage," even if the marriage "died" because of her misconduct. Similar sentiments can be found in the name of many poskim, including such luminaries as the author of the Noda Beyehuda, Rabbi Akiva Eiger, as well as the authors of Chatam Sofer and Beit Meir; this view is the normative halachic posture, even if it is contrary to the assertion of Tosafot.[2]  Payments are not designed to support the women, they are designed to encourage the giving of a get.

Second, since the BDA Prenup is an arbitration agreement, the bet din panel hearing this matter could decide not to order the payments, in a situation in which the totality of the circumstances would cause the dayanim hearing the case to favor such a resolution.  It is exactly the job of the rabbinical court that is hearing any given case to determine that such payments are proper and to order them in a proper time frame.  The BDA Prenup gives the panel hearing the case such discression and authority, and when such payments are ordered, it is because the panel determined that they are appropriate.

(Also the BDA prenup explicitly notes that if the parties agree to submit the whole matter to the BDA, marital fault may be a factor, making this even clearer.)

Third, is the question of what to do when the husband fits either into a socioeconomic patern that makes the payment of $150 not a proper reflection of the amount he owes her given their standard of living, or the payment is a proper reflection of the amount he owes her, but beyound his actual ability to pay now.  [There are two ways this could happen.  The first is that $150 a day reflects her standard of living prior to marriage )see above) – and he can not afford her premarriage standard of $150 a day.  The second is that he can no longer afford the standard of living they jointly had while married due to changes in his earning ability post-seperation.]

In a case in which the proper reflection of their standard of living is less than $150 a day (such as in South Bend, Indiana, according to the chart), the answer is clear and is directly stated by Rabbi Willig in the above shiur.  THE BETH DIN OF AMERICA WILL REDUCE THE PAYMENT LEVELS TO REFLECT THE ACTUAL STANDARD OF LIVING OF THE COUPLE.  

This is not something new or unusual or a concession.  This is a support agreement and not a liquidated damages agreement and support must reflect the actual reasonable support.

The second case is much more interesting: A more than reasonable claim could be made that if the correct amount of the payment is actually $150 per day, but the husband geneuinely can not make such a payment due to his post seperation poverty, there is no illicit coercion at all, and what the husband ought to do in a case when the payment is proper, is give the get.  The decision to avoid a marital debt rightfully owned by giving a get is not a get meuseh at all.

Fourth and finally, it is important to emphasize that the BDA Prenup is not a communal decree, but is a contract signed by the parties withot coercion and of the free will of both sides.  Many – maybe most – Orthodox Jews do not use this or any other prenuptial agrement.  The community of those who will not do a wedding without any prenup being used is far from the majority of the Orthodox rabbinate and no agreement beyond a ketubah is mandated as a matter of halacha.  This agreement, with all of its various clasuses is selected by the husband and wife and binding as a matter of halach because they agreed to it and wanted it.   

The assertion that this or that specific provision of the BDA Prenup is a matter of dispute in Jewish financial law is perhaps sometimes correct.  But the BDA Prenup states explicitly that “As a matter of Jewish law, the parties agree that to effectuate this Agreement they accept now (through the Jewish law mechanism of kim li) whatever minority views determined by the Beth Din of America are needed to effectuate the obligations, procedures and jurisdictional mandates contained in this Agreement” and that is a very powerful tool to address matters of Jewish financial law.  Having realized that this agreement is a valid contract – and not some imposed agreement – allows one to accept clauses as proper because the parties accepted this as governing their agreement.

Of course, those of you who want to follow up with me, should know that my email address is not hard to find and I welcome your comments to me directly.




     [1]Tzitz Eliezer 18:58. This psak can also be found in Peskai Din Rabaniyin 1:238 and 9:171 as the psak of the rabbinical courts of Israel and is defended by Rabbi Herzog and others in the appendix to volume 2 of Otzar ha-Poskim. Particularly the analysis found in 9:171 supports the contention that the moredet issue is not significant, since a get should be given even to a moredet.
     [2]Tosafot, Zevachim 2b s.v. stam. The approach of Tosafot is rejected, or limited to a case where the woman does not want to be divorced, by a breadth of authorities, including Noda Beyehuda, Tenyana Even Haezer 12, Rabbi Akiva Eiger, Derush Vechedish, teshuvah at the end of the ketavim section, Chatam Sofer, Nedarim 89a s.v. berishona (cited in the preface), Beit Meir Even Haezer 117, Pitchai Teshuva 154 (4&7) and it can be implied from Aruch Hashulchan Even Haezer 178:25-26. See the short article by Rabbi Yakov Moshe Tolidano in the appendix to Otzar ha-Poskim (2:16); he avers that the approach that requires a husband to support his wife who is a moredet, and thus not technically entitled to support, in order to encourage the writing of a get by the husband, is the normative halachah without a doubt.

Friday, August 18, 2017

Islamic Terrorism, Charlottesville, Lakewood, and Antifa

Image from Yahoo News
This morning’s news does not come as a shock. Which is itself a shocking statement considering what that news is. Once again. Unfortunately this happens so frequently that it no longer shocks anyone. Islamic terrorists decided to murder innocent victims for God. This time ISIS actually took credit for it. Meaning that it was not just inspired by them but was carried out by them in their Islamic ‘Milchemes Mitzvah’ (better known Jihad) to achieve a world run K’Hahalcha of Islam (Better known as Sharia Law).

I’ve said this ‘a thousand times’. Most Muslims are abhorred by what these Islamic terrorists do. Most of them are fine upstanding peace loving people and sometimes victims of terror themselves. But it cannot be denied that a significant number of them are supportive of it for religious reasons sourced in a fundamentalist understanding of Islam. For them terrorism is a means to an end in their war for God! 

ISIS is not some criminal element. They are a religion based army. They believe that Islam supports doing ‘whatever it takes’ to get the job done. Including taking the lives of not only innocent people, but even giving up their own lives as martyrs for the cause. Which instantly earns them a place in ‘Olam HaBah’. Much the way Judaism see dying Al Kiddush HaShem. 

These Muslims are not people misusing their ‘Torah’ (the Koran). Theirs is a legitimate interpretation of it. An entire Arab nation, Saudia Arabia, subscribes to it. It is called Wahabbism or Salafism. That is a fundamentalist Islamic doctrine that justifies killing Muslims who disagree with their version of Islam. Many experts believe that Wahabbism is what inspires ISIS. It is not a coincidence that the 9/11 terrorists were Saudi Arabians.

As much as most Muslim clerics try to dissociate Islam from these terrorists - constantly rejecting them as a gross distortion of Islam, it is really hard to accept that. Unfortunately many world leaders do buy into that argument. I can’t tell you how many times I have heard – even Republicans like George W. Bush, let alone Democrats like Barack Obama say that these terrorists do not represent Islam. They are a corruption of it. That may be true about most Muslims. But it is certainly not true about all of them. Which is why we continue to have these kinds of attacks. They are inspired by a fundamentalist version of it. Not something they made up or corrupted in ignorance.

It is time to face reality and say that there is something wrong with a religion that can be interpreted by so many of its adherents to the point of killing innocent victims (even members of their own faith) and to blow themselves up in the process – all service of God. And inspiring others to do that all over the world.

I have no solution to the problem. But at the very least we need to realize what the truth is before we can even dream of a way to stop it. We can no longer afford to react after the fact. Nor is it enough to keep increasing safety measures that increasingly burden the public. Especially at airports. While it is important to do that in the interim, it isn’t enough. These attacks will continue. Islamic terrorists will find their way around the increased security measures. They always do. We have to be proactive on an ideological level to recognize that it is an ideology sourced in Islam. And somehow seek to destroy that ideology. Until that’s done the world will be increasingly at risk for death and destruction at their hands.

Heather Heyer (Info News)
On a completely different subject, I have to applaud what religious leaders of Lakewood just did. I certainly have my issues with Lakewood. Especially in light of some recent arrests there. But I absolutely agree with a statement they just released. Especially in light of the fact that almost 75% of that town voted for Donald Trump. It is worth quoting in its entirety: 
"Heather Heyer, a gentle soul murdered by an intolerant racist in Charlottesville last weekend, died defending our freedoms. Most likely her loved ones would say that she was no hero, simply standing up for the founding values of our great republic – equality before the law, tolerance, justice and the rights of all to live in peace without oppression.
"But she was a hero. She encompassed the heart and soul of all Americans from North and South, East and West, of all skin colors, backgrounds, ethnicities, and religions, indeed of all humanity with a moral compass and a conscience. Her message was timeless, let bigotry have no haven on this earth that we all share together.
"Heather defended the fort – our fort – tragically with her life. She sanctified the moral values instilled by the All-Mighty in our souls and boldly defended the principles embodied in our Constitution.
"Elie Wiesel, the noted humanitarian and the voice of innocent victims once said to a president of the United States: “Mr. President, this is not your place.” Your legacy is not to give fodder to racists and anti-Semites to warp and hate with. Your place needs to be exclusively with the innocent victims of intolerance.
"Groups marching with swastikas and assault rifles, protected by the very Constitution they seek to destroy, are not defenders of freedom – they are not America. Now is the time for us all to rise, as a united republic, and to say to each other, once again, that we are one nation where all are equal, with liberty and justice for all.
"Mr. President, please join the countless good Americans who are honoring Heather's legacy and making that statement.'' 
I could not have said it better myself. But a word of caution. Lost in all of the is the fact that Ms. Heyer’s death could have been avoided had the hate groups (who came prepared for a fight and hoping for one) not been attacked by ‘Antifa’ activists that were there with counter-protesters. There is little doubt that they initiated the fighting. That a hero like Heather Heyer was murdered at the hands of a crazed neo Nazi can be traced right back to that.

True, sometimes you must fight violence with violence. Had those hate groups attacked the counter-protesters first, they would have been right to defend themselves and fight back with everything they had.  But that is not what happened here. As much as those hate groups wanted the outcome they got, had the fighting not been initiated by these ‘Antifa’ activists, Ms. Heyer would probably still be alive today. In that sense these they share some of the blame. You do not throw a lit match into a keg of gun powder. That is what ‘Antifa’ did. They asked for a fight and they got one. And Heather Heyer paid the price. 

Thursday, August 17, 2017

What is Modern Orthodoxy?

YCT head, Rabbi Asher Lopatin (Image from NJJN)
Open Orthodox no more. So says Rabbi Asher Lopatin in a recent interview in the New Jersey Jewish News. He objects to the use of that term as a description of his school, Yeshiva Chovevei Torah (YCT). This is because of the controversy it has generated. And yet he says  that his liberal philosophy is exactly that of Open Orthodoxy but that term detracts for the mission of the school.  In a personal conversation I had with him a while back he expressed the same sentiment to me. He then said he just wants his Hashkafa to be known as liberal Orthodoxy. But now he seems to prefer being known simply as Modern Orthodox. In any case he has dropped the term Open Orthodox from all of YCT’s literature.

I understand why he feels this way. Open Orthodoxy has been attacked so many times that it is in danger of losing its identity as an Orthodox institution. And for good reason.  It isn’t so much that his mission is problematic.  I even agree in theory with a mission that tries to be as inclusive and ‘open’ as possible.

My only difference with him is in how he pursues his mission.  Specifically that being inclusive does not mean including ideas and innovations that are not compatible with centuries of Jewish tradition. And that have been widely rejected by legitimate Poskim across the entire spectrum of Orthodoxy. There are some things that are just not ‘open’ to us as Orthodox Jews. Much as we’d like them to be.

The truth is that the fact that Rabbi Lopatin has not changed his philosophy but has simply chosen not to be called Open Orthodox any more - preferring the term Modern Orthodox - does not really help him. To paraphrase Shakespeare, a rose by any other name is still a rose.  It isn’t the name that is problematic, it is the philosophy behind it. Or more specifically in this case how it is applied.

What is a bit concerning to me that it is unclear whether he wants to co-opt that term exclusively for his Hashkafa or just want to be in the general category of Modern Orthodoxy. If it is the former then I have a problem with it. Even if I grant that YCT is still in the fold, it is unfair to co-opt that name for his movement to the exclusion of all others. Modern Orthodoxy is a broad definition that encompasses much more that the extreme left that Rabbi Lopatin and his yeshiva represent. It encompasses a right wing as well. Not a Charedi right wing. But a Modern Orthodox right wing. Whose Hashkafa is perhaps better known as Centrism.   A Hashkafa to which I subscribe.

A Centrist is someone that embraces modernity in positive ways as long as it is compatible with Halacha and tradition. To a Centrist there is nothing inherently evil about secular culture and much of it can be used to enhance our lives in variety of ways. We embrace secular studies as either a function of Torah Im Derech Eretz (TIDE) or Torah U’Madda (TuM). This is in contradiction to our Charedi  brothers who see secular knowledge as not much more than a means towards a livelihood at best. They see secular culture as wasteful at best or even inherently evil. To the extent that they participate at all it is for purposes of health or utilitarian benefit.  Secular knowledge it is seen as a means towards a livelihood at best and not valued at all otherwise.

Clearly therefore (at least to my mind) being a Centrist is being Modern Orthodox. Centrists are therefore entitled to be called by a name that described what we are: Modern and Orthodox. Centrists embrace modernity same as the left. What makes us Centrists is that we share many of the values of the right. We are in essence in the center Hashkaficly.

Why is a name important? Names are important because Orthodox Judaism has evolved to the point that there are many groups with different Hashkafos and therefore different identities. Those of us that are of limited background and seek truth can then find out what each Hashkafa  is about and choose which one they believe they are closer to. And it is useful to know that there are modern Hashkafos as well as right wing Hashkafos – each with their own different segments to choose from.

Gone are the days where we were all one people with a single worldview. Times have changed and Orthodox has changed with them. Who is the ultimate possessor of Truth? I think we will have to wait for Moshiach to find that out. In the meantime the best we can do is serve God in ways that we believe He best wants us to. For that is the ultimate purpose of Judaism.

Wednesday, August 16, 2017

A Shocking Press Conference

My worst  fears about the President are proving to be true. He is an incompetent President who is guided by whim and little else.  The latest and perhaps the most egregious manifestation happened yesterday at a press conference that was supposed to be about rebuilding this country’s infrastructure – something has the support of both political parties. Instead he could not help himself and spoke about the violent clash between white supremacist hate groups (which included swastika carrying Neo Nazis and members of the KKK) and counter protesters.

It was an astonishing reversal of his unequivocal condemnation of those hate groups the day before. Yesterday he decided to double down on ‘blaming both sides’. Thereby leaving the impression of moral equivalency between hate groups and those protesting them.

The President was rightly attacked for those comments by a wide variety of people on both sides of the political aisle from all walks of life. There is no moral equivalency between the two sides. Hate groups pure are evil. Counter protesters were on the right side of the issue.

The President added fuel to his fire by saying that there some good people on both sides. That it wasn’t only hate groups protesting but good people. People that simply were protesting the removal an iconic Confederate statue. And not motivated by hate.

I’m sorry. Anyone that stands with neo Nazis for any reason is not a good person, even if they were there to express a legitimate grievance that had nothing to do with hating anybody. You don’t stand with Nazis for any reason.  If you do, then you are standing with evil. That a President can come anywhere near saying something like that, let alone saying it outright, is beneath the dignity of his office in unprecedented ways. It besmirches not only his own reputation, but that of its people and of this nation whose principles reject racism and bigotry.

I am still stunned that this man was elected President. And yet he is.

That said, if we examine the truth, I have to agree that there was violence on both sides. And I even suspect that it may have been started by the ‘good guys’ – those who were there to protest the Nazis. They in effect played right into the hands of those neo Nazis who came prepared for violence – hoping it would come so that could bash a few heads in. They got their wish and that is exactly what happened.

I say now as I said then. Had the counter protesters asked me, I would have told them to stay home. But they came. Some of them came for a fight – to physically fight evil with violence. Now I’m sure that is most of them came to protest the neo Nazis peacefully with some very loud voices. But a small segment of them were not going to stand by idly and let these hate groups march. They attacked them. I don’t think that there can be any argument about that. I believe the Charlottesville police department actually confirmed that.

So in effect, Trump is technically right. But saying that in this context where it will be seen as granting these hate groups moral equivalency with the counter protesters is a foolish and stupid thing to do. Because that is clearly the reaction of every observer. Including people like former KKK leader David Duke who was one of the few people that praised the President’ for having the ‘courage’ to tell the ‘truth’! This will no doubt embolden these hate groups to carry on their racist crusade for ‘white America’. Which is what their protest last week was really about. That was evident by their repeated refrain of ‘Jews will not replace us!’ –as they marched carrying torches. Which was reminiscent of images recorded during the Holocaust of Nazi soldiers carrying torches marching in Germany.  

Being right about a particular fact does not justify what Trump did. He seems incapable of seeing the bigger picture.  He does not seem to have the intelligence to make those kinds of judgments.  Or worse he is doing it to retain the ‘hate group’ vote – as some have suggested.  

I happen to think it is the former. Because he has not recanted his unequivocal condemnation of those hate group that he made the day before. He reiterated it when challenged by a reporter yesterday.  He also made clear that the driver that rammed his car into the crowd of counter protesters killing one young woman is a murderer. But that was almost beside the point of his rant which sent the message of moral equivalency. It was equally foolish to criticize people that were there to protest these hate groups, most of whom came there to do that peacefully.

I continue to be disgusted by this man and am more embarrassed by his presidency than ever. His oversize ego is so huge he actually believes he can do no wrong and that every word out of his mouth is a pearl of wisdom. He thinks that every word he utters should be taken as gospel.  A man that insults his enemies with lies, half truths, and innuendo - never taking the blame for anything that goes wrong. Frankly I don’t know how his children put up with him. Nor can I understand how his Chief of Staff  John Kelly can continue in that role after this.

And yet, as much as I would like it to be so, I don’t think Trump has committed any high crimes and misdemeanors for which he can be impeached - and then removed from office. I don’t believe that Special Counsel Robert Mueller will find what everyone is hoping he will – a smoking gun showing that Trump himself  colluded with the Russians to undermine his opponent during the election.

This man is here to stay for the rest of his 4 year term. Let us pray that he will be defeated in the next election. We will just have to hold our collective noses until then and hope the country will survive. I think it will. We are stronger than just one man – even the President.  The polls show his approval ratings at historic lows for any President. If that is any kind of indicator, he will be defeated in a landslide. On the other hand, polls have been shown to not be very unreliable predictors of how people will vote. Hillary Clinton will tell you that. God help us all.

Tuesday, August 15, 2017

Ruling With their Heart - Not their Head

Rabbi Shlomo Riskin
Why do they do it? Why do some Orthodox rabbis - good men that have done so much for Judaism go so far off the rails that they are practically thrown out of Orthodoxy? I think it is because they are so kind hearted they simply do not know how to say no. They therefore go to great lengths to justify anti Halachic behavior out of pure compassion. Practically blinded to the clearly forbidden nature of what they permit or excuse. Often these rabbis are otherwise people who have done much for Klal Yisroel. But their Achilles heel is the very compassion that has given them the courage and determination to do great things.

There are two prominent Modern Orthodox rabbis that have done just that with the laws regarding the clearly forbidden act of homosexual relations. And both have used the words of Torah or its sages into permit or excuse it.

Rabbi Asher Loptin in what I am absolutely convinced is a sheer act of compassion has endorsed same sex marriage using the Torah’s admonition in Breishis (2:18) of ‘Lo Tov Hayos HaAdam Levado’ (It is not good for man to live alone). While that has always been interpreted as a Godly command to mankind  that they should marry, Rabbi Lopatin has interpreted to apply to people of the same sex living together. Thus implying that same sex relationships are preferred by God over living alone. Incredible as that may seem, I spoke to him about that and this is what he actually believes. He is not trying to deceive anyone with some sort of exegetical trick. His legitimate compassion for people with same sex attraction has over ridden his common sense and the universal interpretation of those words.

The latest rationaliization comes from another great rabbi, Shlomo Riskin, who has done so much for Klal Yisroel. I believe that he too is guided by a compassion so strong that it overrides unambiguous Halacha. In an interview with a Hebrew language publication he has in effect ‘Kashered’ homosexual relationships among people with same sex attraction. His rationale (...and he is not the first to use it) is the use of the Talmudic principle of Oness Rahcmama Patrei – when someone is forced to sin, a benevolent  God’s absolves them of any guilt. And since gay people are hard wired to be attracted to the same sex, they are considered to be ‘forced by nature’ to violate the prohibition and therefore absolved of any guilt in an act the Torah otherwise prohibits as a capital offense.

Rabbi Asher Lopatin
I get their compassion. I truly understand where they are coming from. But I must join with others that have pointed out the error of their ways. You cannot rationalize away sinful behavior by saying you can’t help yourself. Unless you have a break with reality and are delusional, one has to follow Halacha no matter how strong the inclination is to sin.

We all sin because we all have inclinations to do so – each in our own way. Sometimes the desire is so great that it overcomes us. Every individual faces their own specific Halachic challenges in life. Most good people overcome them. But occasionally even good people are overcome by their desires. When we sin we know we have sinned and that is what Teshuva is for. But in no way should we rationalize it or justify it.  Because if we did, we could in theory rationalize all sin away – at least in those cases where no one else is hurt and our desire to sin overcomes us. 

Clearly this is not what Chazal meant when they said Oness Rachmana Patrei. Being forced to sin by one’s own inclination is not he kind of force Chazal was talking about. Any time free will is involved, sinning becomes a choice. No one but your own mental state is forcing you to sin. 

This does not mean that an individual’s psychological makeup is not factored in. It certainly is. If a someone's  emotional makeup is so overwhelming that overcoming sin is near impossible, and then somehow they overcome it, they are considered a Tzadik - the most righteous of individuals.  But that does not make the sin any less sinful nor does in absolve anyone from responsibility if the do succumb.

The Halacha is clear. A man lying with a man as if he were a woman is an abomination punishable by death (under certain conditions that are impossible to meet in our day.)There is no running away from that. There is no rationalizing it.

I am not going to condemn these rabbis because their heart is in the right place. But they are clearly wrong - ruling with their hearts. Not their heads.

That said, I too have compassion for people with same sex attractions whose only viable option to satisfy those sexual urges is sinful behavior. As I’ve said in the past, I don’t know if it is nature or nurture (or both) that makes some people that way. But it seems pretty clear that they are that way permanently. 

I don’t judge them. I don’t look into what people do in their bedrooms. What they do in private is between them and God. I am not God’s accountant. But as a legal matter  there is no question about a behavior that is spelled out in the Torah as specifically as this is. 

I have said many times, the proper Jewish attitude is to hate the sin and not the sinner. But it is certainly not to cleanse the sin as permissible in instances where our God given gift of Bechira - freedom of choice is involved. Saying that one’s psychological makeup absolves one of sin simply does not make any sense. No matter how strong their psychological inclination is to do so.

Monday, August 14, 2017

An Initial Analysis of Rabbi Moshe Sternbuch’s Teshuva on the Beth Din of America’s Prenuptial Agreement

Guest Contribution by Rabbi Michael J. Broyde

Rabbi Michael J. Broyde
Rabbi Mark Dratch, Executive Vice President of the RCA sent me their recent declaration in response to recent challenges by prominent Israeli rabbis to its prenuptial agreement. The RCA declaration reads as follows: 
Recent claims challenging the halachic validity of the Rabbinical Council of America's Prenuptial Agreement threaten women by undermining the single most effective solution to the agunah problem.
While we recognize the diversity of halachic opinion, the Rabbinical Council of America, the leading organization of Orthodox rabbis in North America, stands proudly behind its Prenuptial Agreement authored by Rabbi Mordechai Willig, shlit"a, and endorsed by leading rabbinic authorities in the United States and Israel, including: Rabbi Ovadia Yosef, zt"l; Rabbi Zalman Nechemia Goldberg, shlit"a; Rabbi Yitzchok Liebes, zt”l; Rabbi Gedalia Dov Schwartz, shlit"a; Rabbi Chaim Zimbalist, shlit"a; and Rabbi Asher Weiss, shlit"a. Copies of their endorsements are available at http://theprenup.org/rabbinic.html
"Despite any detractors, we will continue to advocate for the use of the Halachic Prenup," said Rabbi Elazar Muskin, president of the RCA. "Combined with continuing education and advocacy, we hope to not only ease the plight of agunot but to erase this terrible disgrace from our community." 
Following that Rabbi Michael Broyde sent me a lengthy response to Rav Moshe Sternbuch’s critique of the aforementioned prenup. Rav Sternbuch is by far the most important figure challenging it. An appropriate response should not be limited by space.  It is with that in mind that I am happy to publish Rabbi Broyde’s response to Rav Sternbuch - even though it is by far the longest post  (20 pages) to ever appear on this blog. His words follow a brief description of Rabbi Broyde's credentials. 

Rabbi Michael J. Broyde is a Professor of Law at Emory University and the Projects Director of its Center for the Study of Law and Religion.  He served for many years as a chaver [member] of the Beth Din of America and was the menahel [director] for a period of time as well and was very much involved during that time in the BDA Prenuptial Agreement  He has written more than a dozen articles on various prenuptial solutions to the agunah problem in America, starting with his discussion of the New York Get Law in Tradition in 1995, including a book on the agunah situation in America and more recently an article in the Hebrew Torah journal Techumin on a different kind of prenup named the Tripartite agreement and many other articles.  This article is forthcoming (with some additional footnotes and other small changes) in the Jewish Law Annual: Toronto Conference Volume and Michael Broyde is grateful to the Jewish Law Association for granting him permission to post this prior to formal publication.

I.       Introduction


Prenuptial agreements have been widely hailed both within the Jewish law community (and even by popular media outlets) as a compelling solution to the modern agunah problem of husbands refusing to grant give their wives Jewish divorces even after the functional dissolution of their marriages.[i]  These agreements vary widely; some are simple, others more complex; some merely commit both spouses to adjudicating the giving of a get in a particular beit din, while others go further in providing failsafe mechanisms designed to ensure that the husband gives and that the wife accepts a get in a timely manner.[ii] 

Perhaps the most commonly used document – certainly within the American Modern Orthodox community – is a prenuptial agreement developed by the Beth Din of America in cooperation with the Rabbinical Council of America and in consultation with prominent rabbinic authorities in the United States and Israel.[iii]  This document, hereafter referred to as the “BDA Prenup”, attempts to solve the contemporary agunah problem by (1) committing both spouses to binding arbitration before the Beth Din of America over the issue of the giving of a get, and (2) providing that once the couple separates, the husband will be obligated to pay the wife $150 per day until the giving of a get in fulfilment of the husband’s Jewish law obligation to support his wife during their marriage.[iv]  The first mechanism authorizes the Beth Din of America to oversee the divorce process, thereby avoiding the issues of forum shopping and spousal disagreements over which beit din to appear in, which lie at the root of many agunah cases.[v]  The second mechanism creates an incentive for the husband to quickly comply with any order from the Beth Din of America to give his wife a get, since delaying the giving of a get results in his being liable for the liquidated amount of daily spousal support provided for in the document – an obligation that can if necessary be enforced in state court.[vi]

The BDA Prenup is structured this way so as to not directly coerce or even legally pressure a husband to give his wife a get, and instead formalizes and enforces the husband’s preexisting but civilly unenforceable Jewish law obligation to provide his wife with a reasonable standard of living.[vii]  This indirect incentive for the husband of a permanently separated couple to formalize their divorce by giving a get is important because Jewish law requires that a get be given by a husband willingly.[viii]  Thus, if a state court were to order a husband to give his wife a get under threat of sanctions for contempt, a get given pursuant to such an order would be invalid under Jewish law.[ix]  The same is true when a beit din improperly applies coercive measures to compel a husband to divorce his wife; the get is invalid, and the couple remains married in the eyes of Jewish law.[x]  While Jewish law does authorize the use of certain measures to pressure husbands to agree to divorce their wives, these measures can only be utilized in situations where in the eyes of the beit din the husband is legally obligated to grant his wife a get.[xi]  There are very many cases, however, in which many rabbinic authorities would agree that it is wise, prudent, and appropriate that a couple be divorced, but where there are not clear adequate grounds for imposing on the husband a halakhic duty to give a get or, therefore, for applying direct pressure to convince him to do so.[xii]  Moreover, it is generally accepted that a get might be considered to have been given under duress even if the husband had previously agreed to subject himself to some kind of coercive penalty for refusing to grant his wife a divorce.[xiii]  Since it is imprudent to utilize a mechanism that could produce gittin that might possibly be invalid, the BDA Prenup does not utilize the self-imposed penalty model to help prevent the agunah problem. 

Instead, the BDA Prenup is carefully structured so as to avoid the critical concern of a coerced get.  The BDA Prenup memorializes a Jewish husband’s halakhic obligation to support his wife.  During the course of a couple’s peaceful cohabitation as husband and wife, this obligation is fulfilled without notice, as the couple shares finances, pays for their home, groceries, clothing, and other necessities together in a collaborative and cooperative way.  The Prenup merely makes clear that if a couple permanently separates and thus concludes their ordinary course of keeping a marital home together, the husband remains obligated to provide a specific amount of daily spousal support to the wife for as long as they remain married in the eyes of Jewish law – that is, until he gives her a get.  The husband is left technically free to withhold a get, but if he chooses to do so, he must bear the burdens and duties of marriage by continuing to support his wife at the agreed-upon rate.  Since husband’s who are not living with or maintaining any actual relationship with their wives are unlikely to want to shoulder the financial responsibility of supporting them in a reasonable standard of living, the BDA Prenup’s spousal support provision provides a strong incentive for the giving of a get soon after the functional dissolution of a marriage.[xiv]    

When utilized, the BDA Prenup has proven to be a highly effective tool for insuring that timely giving of a get.[xv]  Additionally, it has been upheld as legally binding and enforceable by American courts.[xvi]

The BDA Prenup is not without its detractors, however.  In 2015, Rabbi Moshe Sternbuch, a prominent halakhic authority for the hareidi community in Israel issued a ruling strongly critical of the BDA Prenup.[xvii]  This article explains why Rabbi Sternbuch’s analysis of the issue is not persuasive.  Part II provides a brief overview of the five principal arguments offered by Rabbi Sternbuch for why the BDA Prenup does not succeed in avoiding the problem of a coerced get, and for why the Prenup – and prenuptial agreements in general – are a bad idea as a matter of communal religious policy.  Part III presents responses to each of Rabbi Sternbuch’s claims in order to explain why the BDA Prenup rests on solid halakhic foundations. Part IV concludes with some closing observations regarding several important and interesting methodological and jurisprudential issues raised by Rabbi Sternbuch’s responsum, which have broader relevance to Jewish law analysis and decision making in areas far beyond gittin and the agunah problem.  

II.    Rabbi Sternbuch’s Teshuva


In the summer of 2015, Rabbi Moshe Sternbuch, the Av Beit Din of the Edah Chareidit in Israel, circulated a responsum criticizing the BDA Prenup that explains why, in his view, the Prenup amounts to “a literal destruction of the faith, and an obstacle that creates concerns about adultery and multiplies mamzerim among the Jewish people.”[xviii]  Rabbi Sternbuch’s position rests on several grounds, some legal, others factual, and still others rooted in extra-legal policy concerns.  This section explains each of these objections to the Prenup.

1.      Later Authorities Rejected the View of the Rema on which the BDA Prenup Relies


Rabbi Sternbuch’s first objection to the BDA Prenup is that its apparent reliance on the view of R. Moshe Isserles, that a get given under the cloud of a previously-accepted, self-imposed penalty for withholding the get can be considered valid once given, is misplaced.  On this question, R. Joseph Karo ruled that such a get is invalid, and that therefore the husband should be formally released from this prior commitment prior to his giving of the get.[xix]  Rema, however, clarifies that in his view, “if [the husband] accepted fines upon himself in case he later refuses to divorce [his wife], this is not considered coercion, for the giving of the get is a separate issue, and he can [if he wishes] pay the [self-imposed] fines while refusing to grant the divorce.”[xx]  The Rema himself notes that such a get is valid only after the fact, and that ideally, a get should not be given until any liability the husband may have due to self-imposed penalties for refusing to grant his wife a divorce is legally waived.[xxi]  Moreover, Rabbi Sternbuch notes that some later authorities have disagreed with even the Rema’s post hoc validation of a divorce granted under such conditions.[xxii]  These authorities include the Mishkenot Yaakov[xxiii] and Arukh Hashulkhan,[xxiv] all of whom object to the possibility that a get given by a husband in order to avoid liability for self-imposed penalties for get refusal.[xxv]

After noting this rabbinic opposition to the Rema’s view, Rabbi Sternbuch makes a methodological point.  Given the gravity of matters of marriage and divorce in Jewish law, it is improper for contemporary decisors to resolve the dispute between R. Moshe Isserles and his interlocutors in favor of the former’s more lenient ruling.  “In our generation, where we are orphans of orphans, which scholar has the strength to stick himself out and uphold this prenuptial agreement based on the rulings of the Rema and Chazon Ish, and to determine a matter of marital law, which is among the most stringent [areas of law], and not be concerned for accounting for all these other later decisors [who disputed the Rema’s view].”[xxvi]

2.      A Husband’s Consent to the Terms of the BDA Prenup is Not Binding


Rabbi Sternbuch next argues that the a get given under the pressure of the BDA Prenup’s spousal support provision is a legally invalid coerced get because a husband’s signing the Prenup prior to the marriage does not actually create a binding obligation to abide by its terms at the time of divorce.  Since at the time he grants the get the husband is not halakhicly bound to uphold the terms of the Prenup, any beit din’s enforcement or threatened enforcement of the spousal support provision amounts to a coercive penalty to which the husband did not previously consent.  Consequently, such pressure is best characterized not as the “self-imposed penalty” (kones es atzmo) allowed by the Rema, but as overt, non-consensual financial coercion of the husband, which surely invalidates the get.[xxvii] Thus, even if one were to grant the legitimacy of relying on R. Isserles’s post hoc validation of a get given under the cloud of a self-imposed penalty for not granting a divorce, a get given through use of the BDA Prenup remains invalid. 

Rabbi Sternbuch supports this position by referencing a ruling issued by R. Samuel de Medina, the Maharashdam.[xxviii]  The Maharashdam dealt with a case in which a husband willingly took an oath to uphold the decision of an arbitrator appointed to mediate between himself and his wife.  The arbitrator ultimately ordered the husband to divorce his wife.[xxix]  The Maharashdam ruled that if the husband was compelled to carry out the arbitrator’s order, this would be considered a coerced get, and would therefore be invalid.  He reasoned that this case was different from one in which a husband accepts a specific self-imposed penalty for refusing to give a get, where the get could be considered valid after the fact according to some authorities.  In this case, the Maharashdam said, the husband’s earlier oath to respect the arbitrator’s decision did not bind him because “perhaps at the time he swore he never considered that the arbitrator might order him to divorce her.”[xxx]  In other words, according to this view, a self-imposed penalty is only binding if the specific penalty was known at the time the commitment was made, or if the person making the commitment considered that he would later be subject to a specific order as a result of his present commitment. 

Based on this, Rabbi Sternbuch concludes that the husband is not bound by the spousal support penalty provision of the BDA Prenup because “it is possible that [when he signed the Prenup] before the marriage, he never considered that they would later separate – and it was only in reliance on this assumption that he agreed to obligate himself [to pay the spousal support].”[xxxi]  If the husband’s earlier acceptance of the terms of the Prenup is consequently not binding upon him, then, if he divorces his wife in order to avoid having to pay the assessed spousal support, he is effectively being coerced to give a get under the pressure of a penalty that he did not actually accept upon himself.  A get given under such circumstances, Rabbi Sternbuch writes, is invalid even according to the Rema.[xxxii] 

3.      The BDA Prenup’s Spousal Support Provision is Functionally a Coercive Penalty


Rabbi Sternbuch further argues that a get given under the cloud of the BDA Prenup is invalid because all parties to the process understand that the spousal support provision is designed to put direct, halakhicly-unacceptable pressure on the husband to give the get.[xxxiii]  Rabbi Sternbuch notes that in his view, the Prenup relies on a ruling of the Torat Gittin, who held that a get given in order to avoid liability for some self-imposed penalty is not considered coerced and is not invalid so long as the giving of the get and avoiding the liability are not expressly made to be contingent on each other.[xxxiv]  The reason for this ruling, Rabbi Sternbuch writes, is that so long as there is no express relationship between the giving of the get and the avoidance of liability for the penalty, one cannot truly say that the threat of the penalty is being used to pressure the husband to give the get.  Instead, the penalty exists for some other reason, and the husband only happens to incidentally avoid the liability by giving the get.[xxxv]  Moreover, while all parties to the arrangement may understand the quid pro quo that is at play, the Torat Gittin holds that “the issue depends on what is said rather than on what the parties intend.”[xxxvi]  Thus, Rabbi Sternbuch writes, supporters of the BDA Prenup rely on the Torat Gittin since on his view the pressure created by the spousal support provision does not invalidate the get because the agreement never expressly connects this obligation to the giving of the get.[xxxvii] 

Rabbi Sternbuch, however, thinks that any reliance on the Torat Gittin to support the BDA Prenup is misplaced.  He bases this conclusion in an explanation/qualification of the ruling of the Torat Gittin offered by the Chazon Ish.  According to the Chazon Ish, the ruling of the Torat Gittin does not apply in cases where “every party knows in his heart – without explicitly saying so – that their intent is to coerce him into giving a get.”[xxxviii]  In such cases, since the understood function of the threatened penalty is to pressure the husband into giving a get, and consequently, that fact that two are not formally connected is of little moment.  Such a get is effectively “forced,” and, the Chazon Ish says, therefore invalid.[xxxix]

According to Rabbi Sternbuch, this is precisely what is taking place when the BDA Prenup is used to secure a get.  The husband gives the get in order to avoid liability for the spousal support payments.  While the text of the Prenup assiduously avoids connecting the giving of the get to the release from the spousal support liability, the husband, wife, and beit din all understand that that is exactly what is at play.[xl]  Indeed, that is precisely why the Prenup was drafted and signed prior to the marriage.  According to Rabbi Sternbuch, therefore, the BDA Prenup represents just the sort of case in which the Chazon Ish held that the ruling of the Torat Gittin does not apply, and is therefore invalid.[xli] 

4.      The BDA Prenup’s Spousal Support Obligation is Unreasonably High


In addition to Rabbi Sternbuch’s arguments that the BDA Prenup does not satisfactorily alleviate the problem of a coerced get, he further asserts that the Prenup’s liquidated spousal support amount is far too high, and is therefore self-defeating.[xlii]  He observes that the liquidated spousal support payments provided for in the Prenup obligate the husband to pay the wife one-hundred-and-fifty-dollars per day from the time that the couple permanently separates until such time as the marriage is dissolved by his giving her a get.  Rabbi Sternbuch notes that “a reasonable person does not have the means to pay such a sum.”[xliii]  According to Jewish law, he writes, “when a person does not have the means to pay a debt, he is absolved from paying it, and it is prohibited to imprison him for this or to apply other means of coercing [payment].”[xliv] 

The halakhic principle to which Rabbi Sternbuch refers is indeed well established in Jewish law.  The Torah provides for a variety of protections for debtors against their creditors, including prohibitions against a lender’s entering a borrower’s home to seize personal property as security against repayment of a loan, and against a creditor’s holding the debtor’s clothing previously given as security for repayment of the debt if the borrower needs the clothing.[xlv]  Moreover, the Torah only provides for the involuntary indentured servitude of a debtor in the case of a thief who is unable to repay the value of the property he stole; no such provisions for coercion or punitive measures against debtors unable to repay their loans are contemplated.[xlvi]  The Talmud reinforced these rules,[xlvii] and while it does recognize that repaying a debt is a mitzvah, and that a beit din may whip a debtor who is capable of repaying a loan but refuses to do so,[xlviii] it does not provide for such measures in cases where the debtor has no ability to pay.[xlix]  Indeed, post-Talmudic authorities have ruled that it is a violation of Jewish law to impose coercive measures against debtors who simply do not have the means to repay their debts.[l]

Based on this, Rabbi Sternbuch argues that when a wife, relying on the BDA Prenup, seeks to compel her husband to pay the required unreasonably high spousal support amount – an amount that he surely cannot afford – in order to put pressure on him to give the get, “this involves coercing him to give her money that he is not obligated to pay in order to get him to divorce her.”[li]  When a get is given under such circumstances, Rabbi Sternbuch writes, “it is a get that was given because they coerced him financially without legal basis, which according to all opinions is an invalid coerced get.”[lii]  Rabbi Sternbuch reinforces this conclusion by citing the rulings of R. Avraham Yeshayahu Karelitz, R. Yomtov Lippman Heller, and R. Yechiel Michel Epstein.[liii]  According to Rabbi Sternbuch, these decisors held that “even if financial coercion is not used to directly compel the giving of a get, but they merely force him to pay money that he is not legally obligated to pay, and the husband himself decides for himself that he will divorce her in order to save himself from this coercion – this is a coerced get.”[liv] 

According to Rabbi Sternbuch, this is precisely what takes place when the spousal support provision of the BDA Prenup is used to convince a husband to give a get.  Since the one-hundred-and-fifty-dollar daily support amount is exorbitantly high and beyond the means of any normal husband, the husband is not legally obligated to pay this debt and cannot legally be compelled to do so.  Consequently, a beit din’s use of this spousal support obligation to indirectly pressure the husband to give the get in order to avoid having to pay amounts to illegal financial coercion, and any get given under the cloud of such pressure will be considered coerced and invalid.[lv]
 

5.      Prenuptial Agreements Will Result in More Divorces


Rabbi Sternbuch concludes his teshuva by noting that even without his aforementioned halakhic concerns, adopting the BDA Prenup is a “breach in the House of Israel” that increases the rate of divorce among Jews.[lvi]  In marriages not governed by the Prenup, Rabbi Sternbuch argues, it is often the case that when a husband refuses to give a get, the wife ultimately agrees to reconcile with him in order to avoid being left an agunah.[lvii]  However, as a result of the Prenup, wives are able to force their husbands to divorce them, and this “is likely to undermine Jewish marriage” entirely.[lviii]

Rabbi Sternbuch acknowledges that in fact the Prenup provides that a husband will only be liable to pay the required spousal support – and thus will only be subject to pressure to give a get – in cases where the beit din concludes that reconciliation between the couple is not possible.  However, he nevertheless maintains that the Prenup will cause “a multiplicity of unjust divorces, likely even in cases where reconciliation is appropriate” because “the wife and her family work to force the beit din to not advise the couple to [reconcile] so as to force the husband to divorce her.”[lix]

He concludes that while the BDA Prenup is only helpful for the very small minority of women whose husbands genuinely chain them to their marriages unlawfully, but at the same time it will also ruin the institution of Jewish marriage.[lx]

III. Analysis


1.      The BDA Prenup is a Spousal Support Agreement, not a Self-Imposed Penalty


At the core of Rabbi Sternbuch’s criticisms of the BDA Prenup lies a fundamental misunderstanding of the halakhic underpinnings of the document, and the mechanism it seeks to use in order to ensure that Jewish divorces are given in a timely manner once a marriage has irreconcilably broken down.  Rabbi Sternbuch appears to believe that the BDA Prenup is grounded in the view of the Rema, who rules that a get given under the color of a self-imposed penalty is valid, at least after the fact. 

Most of Rabbi Sternbuch’s challenges to the BDA Prenup proceed from the assumption that the Prenup is in fact based on the Rema’s ruling, and that it works utilizing the mechanism of kanas atzmo ­– a self-imposed penalty – in order to bring pressure on a husband to give a get.  He first contends that one cannot construct a Prenup relying on the Rema’s view in light of the fact that several important later authorities disagreed with the Rema’s ruling and instead held that a get given under the pressure of a self-imposed fine are invalid even after the fact.[lxi]  Next, Rabbi Sternbuch argues that the Prenup’s spousal support mechanism is not actually binding because, based on the view of the Maharashdam, prior consent to an uncertain future penalty is not binding.[lxii]  Rabbi Sternbuch further contends that the Prenup’s spousal support provision functions as an implicitly  coercive penalty that essentially directly pressures a husband to give a get, which invalidates the get even where the penalty was previously accepted by the husband.[lxiii]  Moreover, Rabbi Sternbuch argues that the Prenup’s support provision of $150 per day is not binding because it is so unreasonably high that no husband to afford to pay it.[lxiv]  This contention supports Rabbi Sternbuch’s view that the BDA Prenup’s spousal support provision is a kenas penalty, since in his mind it bears no reasonable relationship to the actual financial means of ordinary husbands to provide for their wives’ normal cost of living. 

In fact, however, the BDA Prenup does not rely on the view of the Rema that a get given under the cloud of a self-imposed fine is valid after the fact.  Instead, the Prenup builds on a mechanism developed by R. Samuel ben David Moses Halevi in his Nachalat Shiva.[lxv]  According to the Nachalat Shiva, a husband may legally bind himself to support his wife at the customary and reasonable rate common in the couple’s community.  Most importantly, because this kind of commitment merely memorializes the husband’s preexisting Jewish law obligation to support his wife, it is not regarded as a “penalty” or “fine,” and does not fall within the scope of the Rema’s ruling regarding the validity of a get given under the cloud of a self-imposed “kenas.”  Consequently, if a wife were to secure her husband’s willingness to give a get by offering to forgive her rights to these support payments, the get would not be regarded has having been given under the coercive pressure of a penalty, but would instead be the result of a freely made bargain between husband and wife over the enforcement of the latter’s legal right to the promised spousal support.[lxvi]   

Since the BDA Prenup is structured as a spousal support agreement for the time and place in which it is used, it is not subject to the concerns raised by Rabbi Sternbuch, which apply only to self-imposed penalties for get refusal and not to spousal support agreements.  It is important to point out, moreover, that while Rabbi Sternbuch is correct in noting that several important halakhic authorities have questioned and qualified the applicability of the Rema’s ruling regarding the post hoc validity of a get given under pressure of a self-imposed penalty, no authorities have noted their disagreement with the basic position of the Nachalat Shiva that the existence of a spousal support obligation cannot be regarded as coercive and does not jeopardize the halakhic acceptability of a get.

Rabbi Sternbuch, of course, argues that the Prenup cannot be read as a spousal support agreement, and must be understood as a kenas penalty because, in his view, the Prenup’s provision for payments by the husband to the wife in the amount of $150 per day in an unreasonable amount of spousal support.[lxvii]  We note, however, that Rabbi Sterbuch’s assessment of the BDA Prenup’s spousal support provision appears grounded in factually incorrect assumptions about typical incomes and costs of living for the Jews living in Orthodox communities in the United States, who the BDA Prenup is intended to serve.  His analysis may accurately reflect his own reality in Har Nof, Jerusalem, and of the economic realities of the Israeli hareidi community in general, which is in general quite poor.  According to a 2010 report by Haaretz, more than half of the Israeli haredi population lives in poverty, and the average gross monthly income of haredi families is only NIS 6,100, or approximately $1,500.[lxviii]  Under such conditions, it is easy to understand why Rabbi Sternbuch would characterize the BDA Prenups spousal support formula of $150 per day as an amount that no ordinary person could manage to pay.

But the BDA Prenup was not written for or expected to be used by Israeli hareidim, and in fact the economic situation of Orthodox Jews in the United States is dramatically different from that of their hareidi brethren in Israel.  Even a very cursory review of average incomes, home prices, and standards of living in regards to food, clothing, shelter, recreational activities, education, transportation, and the like in areas of the United States inhabited by Modern Orthodox Jews who typically utilize the BDA Prenup shows that the $150 per day spousal support provision is reasonable in light of the typical means of American Orthodox Jewish husbands and the needs of American Orthodox Jewish wives. 

Consider, for instance that the average household income in Manhattan’s Upper West Side, Riverdale, Teaneck, Woodmere, and Scarsdale – all areas with strong concentrations of Orthodox Jews – ranks in the 99th, 86th, 69th, 94th, and 98th percentile, respectively, when compared to national averages in the United States.  Average home prices in these neighborhoods hover around $700,000.[lxix]  Moreover, Jews in these communities almost exclusively send their children to private Orthodox Jewish elementary and high schools, typically paying anywhere from $10,000 to $25,000 per child per year.[lxx]  Most of these families own at least one, if not two or more cars; many take regular expensive vacations to foreign destinations; pay upwards of $5,000 per person to attend holiday programs in exclusive hotels; consume expensive specialty food products and eat out at restaurants; and wear above average clothing.[lxxi]   The standards and costs of living in many of America’s Modern Orthodox communities is very high.  As Dimitry Shapiro has noted, “it’s very much the case that if you are in the Modern Orthodox community and you’re making $200,000 or even $300,000 a year, you’re struggling.”[lxxii]

Given the reality of Modern Orthodox incomes and lifestyles in the United States, it is not unreasonable to demand that the average husband making a six-figure salary make spousal support payments of $150 per day, or just under $55,000 per year.  The American Modern Orthodox community is wealthy even by wealthy American standards while the Israeli hareidi community is poor even by Israeli standards.  This understandably contributes to Rabbi Sternbuch’s sense that $150 a day is an outrageous sum of money that no husband can reasonably be expected to pay.  An examination of the data, however, shows quite clearly that this is simply not true in the United States, where Orthodox Jewish men earning high salaries certainly can be expected to afford to make such payments in fulfilment of their halakhic obligations to support their wives. 

The reasonableness of the BDA Prenup’s spousal support provision in its American Orthodox context is further supported by cost of living realities in the kinds of communities that the Prenup is designed to serve.  Table 2 reproduces a sample cost of living chart prepared by Professor Leon Metzger.[lxxiii]  The chart aggregates daily cost of living data for thirty-eight different zip codes across the United States with heavy concentrations of Orthodox Jews.  The graph clearly shows that in these neighborhoods, the average daily cost of living for an individual female – including housing, food, clothing, transportation, health insurance, and other basic needs hovers around $150, the daily spousal support amount prescribed by the BDA Prenup.[lxxiv] 

Given the actual economies of Orthodox Jewish life in the United States, it is in fact quite reasonable to set an American Orthodox Jewish husband’s halakhic obligation of spousal support at $150 per day.  Moreover, it is critical to understand that in light of the reasonableness of this amount given economic realities, the BDA Prenup’s spousal support provision is not, as Rabbi Sternbuch incorrectly surmises, a form of kenas, or penalty – self-imposed or otherwise.  It is instead a formal memorialization of a Jewish husband’s mezonot obligation, his legal duty to provide his wife with a reasonable standard of living.[lxxv] 

The suitability and halakhic viability of the BDA Prenup in the American Jewish context – and its admitted unsuitability to the very different economic realities of Israeli Jews – is reinforced by the fact that the Beth Din of America has actually drawn up a separate prenuptial agreement to be used by Israeli couples.[lxxvi]  This agreement is virtually identical to the standard BDA Prenup used in the United States, but with one critical emendation.  In the place of the BDA Prenup’s provision for $150 per day in spousal support, the Israeli version states

I hereby now (me’achshav), obligate myself to support my Wife-to-be from the date that our domestic residence together shall cease for whatever reasons, at the rate of $75 per day or the shekel equivalent . . . in lieu of my Jewish law obligation of support so long as the two of us remain married according to Jewish law . . .[lxxvii]

The Israeli version of the Prenup thus directly recognizes the central component of Rabbi Sternbuch’s critique.  It knows quite well that the $150 per day spousal support payment prescribed by the standard Prenup is an unreasonably high amount as applied to Israeli Jews.  For this reason, the standard version that is the subject of Rabbi Sternbuch’s criticism is not supposed to be used by Israelis; the alternative Israeli version of the Prenup, with its more reasonable $75 spousal support provision is intended to be used instead.

The BDA Prenup, in other words, is a spousal support agreement, not a self-imposed penalty; for that reason, the Prenup is not reliant on the Rema’s ruling regarding the validity of a get given under the cloud of pressure created by a self-imposed kenas, and is therefore not susceptible to Rabbi Sternbuch’s criticisms stemming from that premise.  Indeed, it was precisely in order to avoid entanglement with the issues surrounding the Rema’s ruling that the original prenuptial agreement developed by the Rabbinical Council of America in the early 1980s was abandoned in favor of the BDA Prenup currently under discussion.  The earlier document included a liquidated damages clause that did constitute exactly the kind of self-imposed penalty to which Rabbi Sternbuch’s criticism would apply.[lxxviii]  The current BDA Prenup, however, abandoned the liquidated damages penalty mechanism, and instead opted to utilize the approach of the Nachalat Shiva, structuring the document as a spousal support agreement that avoids these concerns. 

It is worth noting that this response to Rabbi Sternbuch’s criticism of the Prenup’s spousal support provision does raise one important question regarding the prenup that is worth considering.  Specifically, it highlights the fact that due to the Prenup’s prescribing a uniform $150 per day for spousal support, the halakhic and practical feasibility of the BDA Prenup may well be limited to communities – like those American Orthodox communities previously discussed – where this amount is a reasonable measure of wives’ cost of living and husbands’ ability to pay.   Rabbi Sternbuch is likely correct that using the BDA Prenup with its $150 per day spousal support provision in a place were typical incomes could never sustain such liability and where people regularly live quite reasonably on much less money would result in the Prenup being considered a self-imposed fine, and therefore subject to the halakhic vagaries associated with the previously discussed ruling of the Rema.  This means that BDA Prenup does not provide a universal solution to the contemporary agunah problem.  It can be reliably utilized only in times and places in which the $150 per day financial obligation it places on the husband can be regarded as a reasonable amount of for spousal support rather than a fine.

One potential way to expand the usability of the BDA Prenup might be to construct a new document in which the spousal support provision was not set at a fixed number, but was instead indexed to some official government averages for income and cost of living in the time and place in which the couple was domiciled prior to the dissolution of their marriage.  While such a provision could be drafted with the right economic and legal expertise, this does not change the basic fact that the BDA Prenup as currently formulated works both halakhicly and legally to ensure that husbands give their wives Jewish divorces in a timely manner.  It is perhaps true that a more universal version of the Prenup indexed to local income and cost of living levels might satisfy Rabbi Sternbuch and induce him to recognize that the Prenup is a spousal support agreement rather than a self-imposed fine.  Nevertheless, the current formulation works well for the communities for which it was designed, and perhaps if it ain’t broke, we’d be better off not trying to “fix it.”

2.      The BDA Prenup Does Not Directly Coerce the Giving of a Get


In light of the fact that the BDA Prenup operates as a memorialization and enforcement mechanism for the husband’s prior and independent mezonot obligation to support his wife rather than as a self-imposed penalty, Rabbi Sternbuch’s claim that the Prenup is invalid because it directly coerces the giving of a get is likewise misplaced. 

It is a well-established halakhic principle that a get given under financial pressure is valid so long as the financial pressure on the husband is not a direct quid pro quo for the giving of the get, but is instead an independently valid legal obligation incumbent on the husband that the wife offers to relieve in exchange for the giving of the get.[lxxix]  This principle is found in a number of medieval rabbinic responsa.  For instance, in one case, a husband had been imprisoned by gentile authorities for offenses unrelated to his refusal to grant his wife a get.  The local Jewish community refused to intervene with the authorities on the husband’s behalf until he gave a get to his wife, and on these terms, the husband consented to the divorce.  R. Joseph Colon ruled that such a get was not invalid, since the community had not coerced him to give but, but had instead merely refused to render assistance unless he did so.[lxxx]  In another case decided by R. Isaac ben Sheshet, a recalcitrant husband who had been imprisoned for failure to pay his debts agreed to give his wife a get after her family offered to pay his debts in exchange for the divorce.  There too, the get was found to be valid because the husband had been imprisoned on account of unrelated debts, not because he had refused to divorce his wife, and therefore the granting of the divorce was formally his own free-willed – albeit highly prudent – decision.[lxxxi] 

As in these cases, the BDA Prenup merely spells out and makes legally enforceable the husband’s prior halakhic obligation of spousal support.  Releasing him from this potentially onerous financial liability if a get is given, or directing that the amount be paid if it is not, is therefore not direct coercion to compel the giving of a get.   

3.      The BDA Prenup is Good Policy, and Does Not Undermine the Institution of Jewish Marriage


Rabbi Sternbuch’s criticism that the BDA Prenup helps encourage divorce by placing husbands and wives in unequal bargaining positions in the event of marital discord, and therefore undermines the foundations of the institution of Jewish marriage fails for at least three important reasons.[lxxxii] 

First, Rabbi Sternbuch seems to assume that from the perspective of Jewish law and thought, the financial and marital relations between husbands and wives should be structured in a certain way, and he is therefore critical of the terms of the BDA Prenup which in his mind alter this ideal state.  The premise is incorrect.  The terms of marriage in the Jewish tradition are primarily contractual.[lxxxiii]  While some non-financial aspects of marital relationships are dictated by Jewish law,[lxxxiv] there is no ideal model in halakha for the correct disposition of financial rights and responsibilities within a marriage. Jewish law does embrace the default terms found in the standard ketubah, but Jewish law also permits couples to agree to change these standard marital terms as they see fit, as has been the practice in many communities – and is still the practice in some communities today.  The terms of the BDA Prenup, which Rabbi Sternbuch criticizes for undermining the proper allocation of rights and duties in a Jewish marriage, are just such a change.  It may not be written into the ketubah itself, since in Ashkenazi communities the ketubah has taken on a formal, ritual character and its terms are not altered, but the Prenup is simply the kind of agreed-upon structing of the marital relationship between husband and wife that has been a mainstay of Jewish marriage for centuries.  Simply put, there is no essential or ideal form of Jewish marital relationships; whatever agreements a couple signs with respect to financial matters is per se proper and binding. 

Secondly, while Rabbi Sternbuch may be correct that the BDA Prenup does not on its face put husbands and wives in the same financial position in case of divorce, it does so only in cases where a husband is already committing the injustice of withholding a get despite the functional dissolution of the couple’s marriage.  Two of the greatest Jewish law authorities of 20th century America affirmed the essential idea that justice demands that a husband give his wife a get following the effective end of their marriage.  R. Yosef Eliyahu Henkin ruled that

If a husband and wife separate, and he no longer desires to remain married to he and she desires to be divorced from him, then in such cases it is a mitzvah to divorce, and Jewish law commands him to do so. . . .  One who withholds a get because he desires money without any rightful entitlement is a thief; he is worse than a thief, since his conduct violates a substantive prohibition (abizrayhu) related to the taking of human life.[lxxxv]

Likewise, R. Moshe Feinstein affirmed that:

In the matter of a man and a woman who for these past years have not had peace in their home, since the beit din sees that it is impossible to make peace and rectify between them . . . it is compelling that they should be divorced, and it is prohibited for either side to withhold a get – not the man to chain the woman to the marriage, or the woman to chain the man to the marriage, and certainly not over financial matters.[lxxxvi]

The upshot of the positions expressed by both R. Henkin and R. Feinstein is that once a marriage has fallen apart and reconciliation is no longer reasonably possible, divorce is appropriate and indeed obligatory.  In such circumstances, justice demands that a get be given, and any refusal to do so on the part of the husband is unethical, unrighteous, and unjust.  While Rabbi Sternbuch takes issue with the perceived unfair imbalance of power between husband and wife in divorce proceedings created by the Prenup, this problem only arises because of the husband’s refusal to give a get, which tempers sympathy towards the husband’s claim of power imbalance – particularly if he voluntarily agreed to such imbalance as a way to induce this woman to marry him.

Finally, the most important response to Rabbi Sternbuch’s policy objections to the BDA Prenup focuses once again on the major differences between Jewish life in Israel, where Rabbi Sternbuch lives, and in the United States, where the Prenup was drafted and intended to be used.  Put simply, unlike in Israel, where battei din function as part of the state’s legal system and enjoy the support of Israeli law enforcement institutions, rabbinical courts in the United States and other places in the diaspora have no official jurisdiction or power.[lxxxvii]  Israeli battei din have exclusive coercive jurisdiction in matters of divorce; rabbinical courts oversee and control the divorce process, and no divorce can be granted without the approval of rabbinic authorities.[lxxxviii]  More importantly, rabbinical courts in Israel have the legal power to hold husbands who refuse an order to give a get in contempt of court.[lxxxix]  In the United States, however, there is no way to force any unwilling spouse to appear before a beit din, and there is no way for rabbinic courts to administer a get without the agreement of both husband and wife.  In practice, this permits all manner of misconduct by parties going through divorce proceedings, and presents opportunities for husbands (and to a lesser extent, wives) to use their refusal to give (or accept) a get in order to obtain more favorable financial settlements in the divorce.

This uniquely disasporic situation explains why prenuptial agreements like the BDA Prenup are rigorously endorsed by numerous halakhic authorities for use in the United States, but not for use in Israel.  It is important to make sure that Jewish divorces are given and administered.  In the United States this entails reliance on prenuptial agreements, which have proven to be the most effective and halakhicly principled way to address the agunah problem.  Rabbi Sternbuch may not be entirely wrong in his policy critique of the Prenup insofar as his claims relate to conditions in Israel.  But the situation among American Modern Orthodox Jews – who already experience a divorce rate that is likely much higher than in Rabbi Sternbuch’s own community – is very different.  In that community, policy favoring divorce when divorce is indicated by the functional end of a marriage demands that the means of affecting a halakhicly valid and efficient divorce are made available and utilized.  The BDA Prenup provides just this sort of means.[xc]

There is, in this regard, some resonance of the Talmudic[xci] observation הא לן והא להו (“this is for your community and this is for their community”): the BDA Prenup is designed for a certain diasporic community with three characteristics: (1) The secular community has already endorsed the norms of easy “no fault divorce,” (2) the rabbinical courts have no mandatory jurisdiction and (3) the community is fairly wealthy.[xcii]  Eliminate these three and the agreement is no longer applicable.

IV. Conclusion


Halakha, like any other system of law that seeks to be both principled and pragmatically functional in the real world, is fact-driven.  Legal rules and principles are only one part of the jurisprudential equation that produces a particular judgment; in additional to legal norms, one has to consider the facts of each case in order to correctly determine what the law requires and entails.  The same set of legal rules, if applied to substantially different factual scenarios, will therefore produce different but nevertheless equally correct results.  This appears to be the case in the matter of Rabbi Moshe Sternbuch’s criticisms of the BDA Prenup.

When it was adopted, the BDA Prenup won the approval of many leading halakhic authorities, including the late great Jewish law authorities R. Yitzchok Liebes and R. Ovadiah Yosef, and it continues to enjoy the support of many of today’s major rabbinic authorities, including R. Zalman Nechemia Goldberg, R. Gedalia Dov Schwartz, R. Osher Weiss, R. Chaim Zimbalist, and many of the Roshei Yeshiva of the Rabbi Isaac Elchanan Theological Seminary at Yeshiva University.  These numerous and highly regarded scholars of the past and present generation have not approved of the Prenup because they disagree with the analysis of the issue presented by Rabbi Sternbuch; and he did not level his challenges to the Prenup because he disagrees with their halakhic position. 

Supporters of the Prenup agree with Rabbi Sternbuch’s fundamental point that we should not administer a get under the cloud of pressure created by a self-imposed kenas penalty previously agreed to by the husband.  Likewise, it is clear from Rabbi Sternbuch’s teshuva that he too agrees with the basic position of the Nachalat Shiva that a spousal support agreement concretizing a husband’s halakhic obligation to support his wife and providing for reasonable levels of support payments in case the couple separates without a get having been given does not invalidate a get given in order to avoid making such payments.  Instead, Rabbi Sternbuch’s teshuva merely argues that in his own time and place – Har Nof in the year 2015 – the $150 per day payments prescribed by the Prenup are too large to be considered anything other than a penalty.  What Rabbi Sternbuch’s teshuva fails to recognize, however, is that given the economics of Modern Orthodox life in the United States, the Prenup’s $150 per day spousal support provision is quite reasonable and should be viewed as a form of spousal support rather than as a penalty.

V. A Brief Personal Postscript: Some Concluding Speculative Political Thoughts about the BDA Prenup

I am a very comfortable supporter of the BDA Prenup (So much so that for many years I was the emergency contact number on the actual form itself in case people filling it out needed help).  The BDA Prenup is the only real and effective solution to the agunah problem.  It works in almost all cases, and it solves actually almost all problems in the United States.  Everyone and anyone who cares if they are given a get when their marriage end in divorce ought to use it.  The alternatives to it are either less effective, less accepted or untested and unproven.[xciii]  Challenges to the BDA agreement need to be responded to and the practices of our community in this regard defended.  I hope this paper has effectively done so with regard to one challenge.

However, all is not rosy in this regard.  The BDA Prenuptial Agreement is, I suspect, being challenged on three fronts simultaneously, albeit by three different groups that have three totally different agendas and goals (and are certainly not coordinating their efforts).  Responding to all three of these challenges and their impact is the challenge of those who believe in the value of the prenuptial solution to the agunah problem.

The first group (and the focus of this article) is made up of a small number of halachic authorities who question the validity of the BDA Prenup as a matter of halacha, and that is the focus of this paper.  This school of thought – almost exclusively based in Israel – is a collection of halachic authorities who suspect that the payment process is problematic in the PNA, or are uncomfortable with any PNA attempt to oust the rabbinical courts from their mandatory jurisdiction or feel that the PNA otherwise undermine the sanctity of marriage.  This group issues statements in the name of halacha as they understand it to the effect that Jewish divorces issued under the shadow of the BDA Prenup might not be valid.[xciv]  They will continue to do so. but as this article shows, this analysis is not persuasive as a matter of technical halacha, and the jurisdictional issues are ultimately not relevant in America since absent a PNA, only secular court has jurisdiction.  This challenge can be well addressed.

The second group are members of the Orthodox community members who are unsatisfied with the solution to the agunah problem advanced by the BDA Prenup: indirect financial pressure to give a get which is enforced by secular law.  This group wishes for an autonomous, internal solution to the agunah situation without reference to civil law and which is self-effectuating and not contractual.   
The BDA Prenup is none of these, and at most their support of the BDA Prenup will thus be weak and frequently it is even less than that.[xcv]  In this groups view, the existence of the agunah problem is a philosophical blight on the halachic system.  As one commentator in this community noted “Why in the 21st century must we turn to the civil authorities to solve the problems associated with our Jewish laws? It is time for the international religious leadership to come up with a universal fair solution.[xcvi]” The BDA Prenup is not this solution and never will be.[xcvii]

The third group is secular and hardly has the agunah problem on its radar screen, although its work can make the current BDA Prenup impossible to enforce.  An important collection of serious legal and political minds are seeking to limit religious arbitration, particularly in the area of family law.  Some of them are motivated by a sense that religious arbitration abuses women, some by a desire to restrict inroad by Sharia law, some by a general secular law arbitration theory and some by yet other ideas and ideals.[xcviii]  Whatever motivates this group – and it is a diverse collection[xcix] – secular law limitations on all prenuptial agreements could be looming in many states in ways that would vastly diminish the value of the BDA Prenup.  (This is why there is already special BDA prenuptial agreements for California[c] and Canada.[ci])  

Attempts to restrict religious arbitration abound and many other proposals in many states might well be next.  There is a distinct fear that the general access to religious arbitration on family law matters will be restricted in the US, as it already is in parts of Canada.  This could pose a very serious challenge to the BDA Prenup and should provide impetus to making sure that the BDA Prenup is regularly examined and updated to make it consistent with the state of the art American arbitration law as well as halacha.

The current article focus on the technical halachic issues are important, but, they pose the least important challenge to the future of the BDA Prenup.  Changes to the civil law of the United States with regard to arbitration law pose a much more serious challenge as such changes to the law could make even currently valid BDA Prenup invalid at some future point, as changes in the law in Ontario did for all such previously valid prenuptials with arbitration agreements in that province of Canada.  The solution to that challenge is beyond the scope of this article, but this challenge also is manageable with reasonable foresight and proper planning.



Footnotes


[i] See, e.g., Rabbi Shlomo Weissmann, Ending the Agunah Problem as We Know It (August 23, 2012), https://www.ou.org/life/relationships/ending-agunah-problem-as-we-know-it-shlomo-wiessmann/; Halakhic Prenuptial Agreements: Agunah Prevention, The Jewish Orthodox Feminist Alliance, https://www.jofa.org/Advocacy/Halakhic_Prenuptial_Agreements_Agunah_Prevention; Shlomo Brody, Can Prenuptial Agreements Prevent “Agunot”?, The Jerusalem Post (November 15, 2012), http://www.jpost.com/Jewish-World/Judaism/Can-prenuptial-agreements-prevent-agunot; Beverly Siegel, Sign on the Dotted Line, Tablet Magazine (March 6, 2015), http://www.tabletmag.com/jewish-life-and-religion/189149/sign-on-the-dotted-line; Mark Oppenheimer, Where Divorce Can Be Denied, Orthodox Jews Look to Prenuptial Contracts, The New York Times (March 16, 2012), http://www.nytimes.com/2012/03/17/us/orthodox-jews-look-to-prenuptial-contracts-to-address-divorce-refusals.html
[ii] For examples of some prenuptial agreements designed to address the agunah problem, see https://www.jofa.org/Advocacy/Halakhic_Prenuptial_Agreements_Agunah_Prevention;
[iii] The text of this agreement can be found at http://theprenup.org/pdf/Prenup_Standard.pdf.  A list of rabbinic endorsements supporting the viability of this document under Jewish law can be found at http://theprenup.org/rabbinic.html
[v] See Michael J. Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America 163 n.24 (2001); Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, 51 Maryland L. Rev. 312, 327 (1992).
[vi] The legal enforceability of the BDA Prenup was upheld by a Connecticut court in Light v. Light, 2012 WL 6743605 (Conn. Super.).
[vii] See Maimonides, Mishnah Torah, Hilchot Ishut 11:2.
[viii] See Mishnah, Yevamot 14:1; Maimonides, Mishnah Torah, Hilchot Gerushin 1:1-2.
[ix] See Michael J. Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America 69 (2001); Chaim Malinowitz, The New York State Get Bill and its Halachic Ramifications 27 J. of Halacha & Contemp. Society 5 (????); Michael J. Broyde, The 1992 New York State Get Law, 29 Tradition 5 (Summer 1995).
[x] See Babylonian Talmud, Gittin 88b; Shulkhan Arukh: Even Haezer 134:7.
[xi] See id.  See also Tzvi Gartner, Problems of a Forced Get, 9 J. of Halacha & Contemp. Society 118 (1985).
[xii] See Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, 51 Marland L. Rev. 312, 332-35 (1992).
[xiii] See Shulkhan Arukh: Even Haezer 134:4.
[xiv] For a discussion of this mechanism and its historical usage, see 1 J. David Bleich, Contemporary Halakhic Problems 155-159 (1977).
[xv] See https://www.getora.org/faqs-about-the-prenup.
[xvi] See Light v. Light, 2012 WL 6743605 (Conn. Super.).
[xvii] See R. Moshe Sternbuch, Condemnation of the BDA Prenup (hereinafter Sternbuch Teshuva), available at https://www.scribd.com/doc/273292099/Rav-Moshe-Sternbuch-condemns-prenuptial-agreements?secret_password=tfA9agf8H8M7dDE9Hk4N.
[xviii] Sternbuch Teshuva at 2.
[xix] Shulkhan Arukh: Even HaEzer 134:4.
[xx] Rema to Shulkhan Arukh: Even HaEzer 134:4.
[xxi] See id. (“And it is proper to be concerned for this view in the first place and absolve him of the penalty.  But if he already divorced her because of this – and even if he divorced her due to the force of an oath he previously took to divorce her – the get is valid since originally no one coerced him.”).
[xxii] See Sternbuch Teshuva at 2.
[xxiii] See Responsa Mishkenot Yaakov, no. 38.
[xxiv] See Arukh Hashulkhan: Even Haezer 134:28-29.
[xxv] See also Pitchei Teshuva: Even Haezer 134:10; Sternbuch Teshuva at 2.
[xxvi] Sternbuch Teshuva at 2.
[xxvii] See Sternbuch Teshuva at 2-3.
[xxviii] See Responsa Maharashdam, Even Haezer, no. 63.
[xxix] See id.
[xxx] See Sternbuch Teshuva at 2.
[xxxi] Sternbuch Teshuva at 3.
[xxxii] See Sternbuch Teshuva at 3.
[xxxiii] See Sternbuch Teshuva at 3-4.
[xxxiv] See R. Jacob Lorderbaum, Torat Gittin 134:4.
[xxxv] See Sternbuch Teshuva at 3.
[xxxvi] Sternbuch Teshuva at 3.
[xxxvii] See Sternbuch Teshuva at 3.
[xxxviii] See Sternbuch Teshuva at 3-4.
[xxxix] See Sternbuch Teshuva at 4.
[xl] See Sternbuch Teshuva at 4.
[xli] See Sternbuch Teshuva at 4.
[xlii] See Sternbuch Teshuva at 4.
[xliii] Sternbuch Teshuva at 4.
[xliv] Sternbuch Teshuva at 4.
[xlv] See Mishnah, Bava Metzi’ah 9:13.
[xlvi] See Babylonian Talmud, Kiddushin 14b; Maimonides, Mishnah Torah, Hilchot Avadim 1:1.
[xlvii] See Babylonian Talmud, Bava Metzi’ah 113a-116a.
[xlviii] See Babylonian Talmud, Ketubot 86a.
[xlix] See, e.g., Responsa Rivash, no. 484; R. Joel Sirkis, Bayit Chadash to Arbah Turim: Choshen Mishpat 97:28.
[l] See, e.g., R. Isaac Ben Sheshet, Responsa Rivash, no. 484.
[li] Sternbuch Teshuva at 4.
[lii] Sternbuch Teshuva at 4.
[liii] See Sternbuch Teshuva at 4.
[liv] Sternbuch Teshuva at 4.
[lv] See Sternbuch Teshuva at 4.
[lvi] Sternbuch Teshuva at 4.
[lvii] See Sternbuch Teshuva at 5.
[lviii] Sternbuch Teshuva at 5.
[lix] Sternbuch Teshuva at 5.
[lx] See Sternbuch Teshuva at 5.
[lxi] See supra Part II.1.
[lxii] See supra Part II.2.
[lxiii] See supra Part II.3.
[lxiv] See supra Part II.4.
[lxv] For a discussion of this mechanism and its historical usage, see 1 J. David Bleich, Contemporary Halakhic Problems 155-159 (1977). See also Michael J. Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America 13-15 (2001).
[lxvi] See generally Nachalat Shiva 9:14.
[lxvii] See supra Part II.4.
[lxviii] See Zvi Zrahiya, More Than Half of Israel’s Ultra-Orthodox Living in Poverty, Haaretz (Nov. 7, 2010), http://www.haaretz.com/israel-news/business/more-than-half-of-israel-s-ultra-orthodox-living-in-poverty-1.323309.
[lxix] Collecting data from http://newyork.homelocator.com and entering zip codes 10024 (Manhattan’s Upper West Side), 10471 (Riverdale), 07666 (Teaneck, New Jersey), 11598 (Woodemere, New York), and 10583 (Scarsdale) strongly suggests what many in the Jewish community know all too well: Modern Orthodox communities have high housing prices (on average $700,000) and very high incomes (99, 86, 69, 94, and 98th percentile, respectively, relative to the rest of the United States).
[lxx] For an informal, but perhaps the most extensive collection of tuition data for Jewish day schools around the United States, see https://docs.google.com/spreadsheets/d/1jJF9icyyd5jMqY-pm06QbJqqAKXe0b9X-1-DOzbo4yk/edit#gid=0.
[lxxi] See Chaim I. Waxman, Is Modern Orthodoxy Thriving? Don’t Be So Sure (Nov. 13, 2014), http://blogs.timesofisrael.com/modern-orthodoxy-thriving-maybe-not/.
[lxxii] Dimitry Shapiro, For U.S. Orthodox, Upper Class Incomes Often Not Enough (Feb. 5, 2015), http://www.timesofisrael.com/for-us-orthodox-upper-class-incomes-often-not-enough/
[lxxiii] See infra Table 1.
[lxxiv] See id.
[lxxv] See Maimonides, Mishnah Torah, Hilchot Ishut 11:10-11.
[lxxvi] This Israel-specific version of the BDA Prenup is on file with the author.
[lxxvii] Id.
[lxxviii] For a copy of this earlier prenuptial agreement, see Menachem M. Bayer, The Jewish Woman in Rabbinic Literature, Vol. 2, at 223 (1986). 
[lxxix] See Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, 51 Marland L. Rev. 312, 328 (1992).
[lxxx] See R. Joseph Colon, Responsa Maharik, no. 123.
[lxxxi] See R. Isaac Ben Sheshet, Responsa Rivash, no. 127.
[lxxxii] See supra Part II.5.
[lxxxiii] See Michael J. Broyde, The Covenant-Contract Dialectic in Jewish Marriage and Divorce Law 53, in Covenant Marriage in Comparatie Perspective (John Witte & Eliza Ellison, eds., 2005).
[lxxxiv] See Maimonides, Mishnah Torah, Hilchot Ishut 11:2-5.
[lxxxv] Adut l’Yisrael 143-144, reprinted in Kol Kitvei HaRav Henkin 1:115a-b.
[lxxxvi] Igrot Moshe, Yoreh Deah 4:15
[lxxxvii] See Michael J. Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America 43-58 (2001).
[lxxxviii] See The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, S.H. 165 arts. 1-2.
[lxxxix] See Heather Lynn Capell, After the Glass Has Shattered: A Comparative Analysis of Orthodox Jewish Divorce in the United States and Israel, 33 Tex. Int’l L.J. 331, 337 (1998); Erica R. Clinton, Chains of Marriage: Israeli Women's Fight for Freedom, 3. J. Gender Race & Justice 283, 289 (1999).
[xc] Let me add that I have not discussed in this article the various Israeli prenuptial agreements as they are outside of the bailiwick of both Rabbi Sternbuch’s critique and this defense.  It goes without saying, however, that Israeli PNA entitled “The Agreement for Mutual Respect” is as valid as the Beth Din of America agreement is, and can be subject to the same critique about the details of the support numbers.  Assuming that the amounts are reasonably correlative to support levels in Israel, that agreement is halachically identical to the BDA Prenup.
[xci] Bava Metzia 107a and Bava Batra 147a as well as many other places in the Babylonian Talmud.
[xcii] This formulation was first suggested to me by my friend Rabbi Alan Berkowitz in the course of his reading a draft of this paper.
[xciii] This is an important conceptual point.  “Less accepted” solutions are those that produce a divorce process that significant segments of the halachic community would not accept, and this is unwise.  “Less effective” solutions are those that do not work in a significant number of the cases that actually beguile the community and “untested and unproven” are those solutions that might work in theory, but reasonable people are unsure if that actually work in practice or in theory.
[xcvii] I respond to this criticism in my book Marriage, Divorce and the Abandoned Wife in Jewish Law (Ktav, 2001), but the criticism remains accurate in its description.
*Updated to a more readable format