A number of our Orthodox clients recently signed prenuptial agreements. What made it somewhat unusual was that each of the agreements contained different get provisions but all were designed for the same purpose.
The goal of each was that in the unfortunate event of the dissolution of the marriage, the husband would give and the wife would accept a get. However, the details of how that would be achieved differed in each prenuptial agreement. The reason was that each client was being advised by a different rabbi. They were from different communities and subscribed to different hashkafas as to how an appropriate document meant to avoid an agunah situation was to be drafted.
We were able to take into account the wishes and concerns of each client while crafting a document unique to the individual situation while achieving the common goal of avoiding situations of get refusal.
Currently there is an excellent prenup available to the public. Since Rabbi Mordechai Willig in 1994 drafted the Beth Din of America Prenuptial Agreement, it has become the most widely used Jewish prenup with the goal of avoiding the creation of agunot. In the Beth Din of America Prenup, commonly known as the RCA or BDA Prenup (or simply the Prenup), the parties sign a binding arbitration agreement obligating them to appear at the Beth Din of America for the giving and receiving of a get.
(The parties may choose a different bet din by substituting the name of the bet din they agree on in the body of the document prior to executing the agreement.)
The RCA Prenup also obligates a husband, upon notice, to pay support to his wife until the get is given. Through the strong support of the Rabbinical Council of America (RCA) and its membership, the Prenup has become a mainstay for brides and grooms in the Modern Orthodox community. The RCA has mandated that its member rabbis not officiate weddings without the execution of the Prenup.
The RCA Prenup has a stellar success rate. It has induced Gittin in situations where the get may have otherwise been withheld. The Prenup has also been tested and upheld in civil court. We personally have seen success with our clients who had signed the Prenup. In our practice, we advocate for our clients to use the Beth Din of America Prenup so long as they are comfortable with it. When clients approach us for financial prenuptial agreements, we always strongly suggest they either sign the halachic RCA Prenup as well or we insert language in the tailor-made prenup to include the halachic component.
There are still those who opt out of using the RCA Prenup. The primary reason is that the boilerplate language does not fit the parties’ needs or goals and does not address the concerns of their rabbis. The truth is that prenuptial agreements are not always “one size fits all.”
In our recent cases, we had to address three different concerns. In one case, the couple’s rabbi didn’t agree with the “support provision” in the RCA Prenup; in another, he had concerns with the get language; and in the worst case of the three, the rabbi didn’t want the client to sign any prenup at all. Fortunately, they came to discuss their dilemma with us and we were able to draft a specific prenup that satisfied both their need for protection and their rabbis’ opposition to or concern with the RCA Prenup.
For a variety of reasons, the signing of any prenup is still not common outside of the Modern Orthodox community, and it certainly is still not used often enough even among Modern Orthodox Jews. In fact, when three of the attorneys from our office lectured in Israel last December at the TAHEL international conference on abuse in the Jewish community, many of the attorneys from outside the United States were shocked that prenuptial agreements were not more common here, given the stance of the RCA on the matter.
Alexandra Weaderhorn and Rachel Marks