Refuting the RCA Prenup

Refuting the RCA Prenup - Text of the RCA prenup argument and my comments that the RCA prenup is forbidden for many reasons.

David Eidensohn <eidensohnd@gmail.com>

August 19.2017

Refuting the RCA Prenup

By Rav Dovid Eidensohn Monsey NY

Jewish Divorce and the Role of The Prenup

The Torah views marriage as a vital institution in Jewish life. But the Torah also recognizes that in some cases marriages do not work out and need to be ended. In order to do so, the husband must willingly give, and the wife must willingly receive, a Jewish bill of divorce, known as a Get. In the absence of a Get, the husband and wife are both precluded from remarrying. Later offspring of the wife may bear the stigma of mamzerut (illegitimacy).

Dovid Eidensohn comments: Later offspring of the wife may bear the stigma of mamzerut (illegitimacy). I feel it is important to be more specific about what makes mamzerut from a married woman. Mamzerut from a married woman comes about if she sleeps with another man not her husband. A woman who hates her husband may be easily tempted to sleep with another man not her husband. But what is happening today is that many “rabbis” have invented a new law, that a husband who does not give a GET willingly when the wife demands it, may be forced to give a GET. A forced GET is invalid and if the woman remarries with an invalid GET her children from the new husband are mamzerim. The sin of forcing a GET is a Rashbo in VII:414 and it is quoted by all five poskim in the Shulchan Aruch Even Hoezer Laws of Kesubose 77 par 2 and 3. The Vilna Gaon there says that everybody agrees to this. Everybody, except the RCA and its “Gedolim.” But what I just said is really a bit old fashioned. The new style, pioneered by a certain Rosh Yeshiva in Philadelphia, is to tell a woman she doesn’t need a GET, but she can just leave her husband. That surely makes mamzerim. But we have a case in Philadelphia where the woman who left without a GET is living with a strange man and both of them have bought an ad on the Yeshiva Kollel dinner. This shows you where the world is going when you invent the new Torah.

 This is also something done by Rabbi Gedaliah Schwartz and I spoke to him about it and he said that he allowed two Orthodox spouses to leave when they wanted a GET because they didn’t need a GET. I asked him why they didn’t need a GET when they were Orthodox, the witnesses were Orthodox, the woman got a ring from the husband and they lived together for a month. He replied “Because there was no Biah.” The halacha clearly taught in the Tur Shulchan Aruch Even Hoezer laws of Kiddushin chapter 26 is that there are three ways to acquire a woman in marriage. One is giving her a valuable. One is giving her a marriage document. And another way is Biah. Thus, either one of these three acquisitions suffices; it is not necessary to combine two or three together, and if a man gives a woman a valuable or money that is enough, no Biah is required, and no marital document is required. This is a clear teaching in the Tur Even Hoezer in the beginning of the Laws of Kiddushin, but the senior expert in Gittin in the RCA did not know this. What else don’t they know in the RCA? Are we going to have a prenup made for all RCA people when the senior rabbi of the RCA doesn’t know the first law of Kiddushin and sends a man and woman away without a GET although they asked for a GET?

The Tur Even Hoezer 76 and the Shulchan Aruch Even Hoezer 76 paragraph 11 say that a husband who does not fulfill his obligation to give his wife marital satisfaction may, at times, not be able to stay married to her and must give a GET. This applies to the husband who is unable to be with his wife in marital terms due to his physical condition that he is sick or weak. If the problem lasts more than six months the husband is obligated to give his wife a GET, unless she specifically forgives him. In paragraph 13 the Shulchan Aruch deals with a man who simply refuses to have relations with his wife, period, not now and not later and not ever.  Such a person must give his wife a divorce if she demands it. I mention this because in the case of Rabbi Gedaliah Schwartz sending two Orthodox Jews who married with a rain in an Orthodox ceremony with Orthodox witnesses, etc., why did Rabbi Gedaliah Schwartz refuse to give them a GET when they asked for it? He told me he did that because there was no Biah. But we showed before that the Shulchan Aruch and the Tur clearly teach that the ring is enough to acquire the wife in marriage, not Biah is necessary.

Somebody suggested that perhaps the fact that the husband was unable to perform somehow created a situation where the Kiddushin were negated and there was no marriage and thus no need for a GET. But the Shulchan Aruch we quoted and the Tur in chapter 76 clearly state that a husband who cannot, physically, satisfy his wife, or who refuses to ever give his wife marital satisfaction, is obliged to give a GET. The exact words are “He must divorce her and give her a Kesubo.” Now, surely, somebody who has to give a Kesubo, which could be a large sum of money, only does that when there is a valid Kiddushin. So if there is a Kesubo, surely there is a valid Kiddushin. But the husband must give a GET to release his wife from living without intimacy. What Rabbi Schwartz did to send husband and wife away with no GET is completely wrong.

 End comment D.E.

RCA says

In some cases, spouses have purposely withheld a get even where their marriages have functionally ended. Some spouses have refused to participate in the get process in order to extract concessions in divorce negotiations, in order to extort money, or simply out of spite.

Dovid Eidensohn: It is true that not all husbands willingly give a GET because the wife demands one. The above comment is true, but we are left with the question of why the author did not write a bit longer to explain two things. One, that the halacha in Even Hoezer 77 par 2 and 3 as taught by all five poskim there, the Shulchan Aruch, the Ramo, the Gro, the Beis Shmuel and the Chelkas Mechokake say clearly that a husband must not be pressured to give a GET. If the GET is pressured, it is very possible it would be invalid, and the woman using it to remarry would have a problem if her children are kosher children. The Gro there has a very long discussion of this and says that everyone agrees with this not to force the husband to give a GET. The PRENUP, of course, is simply a device to force a GET from the husband. The RCA wants to make it standard so that all woman can force their husband to give a GET whenever they want out. This is forbidden by a Mishneh Nedorim 90B that although originally, we believed women in their stories that required a Beth Din to force the husband to give a GET, this practice stopped when it became a problem because a woman could possibly use her stories not because they were true but because she found a cute fellow she wants to marry. This is the halacha and the basis for not believing women who demand a GET from their husband because he is disgusting to them, as taught by Rabbeinu Tam in Tosfose Kesubose 63b.

        If it was permitted to force the husband to give a GET, if the husband loves his children and the wife wants to take them to a distant place, why should he just fork over the GET? Is he a human being or a creature for the woman to control? But let us keep to the point. The halacha is that a husband may not be forced to give a GET and may not be pressured. The Shita in Kesubose says that one may not tell the husband it would be a proper thing to give a GET.

Traditionally, rabbinical courts (batei din) have been charged with the responsibility of overseeing the process of Jewish divorce, and ensuring that get is not improperly withheld.

Dovid Eidensohn: The Chazon Ish says Even Hoezer Noshim Gittin 99:2 that any force on the husband can ruin the GET. He says that a Beth Din that requires the husband to give a GET and the husband is not one of those very few people in Shulchan Aruch required to give a GET, then the GET is invalid for two reasons. One, it is a GET given by the husband with force, because a Beth Din that forces has the status of ONESS, unless the Shulchan Aruch says clearly that it is a mitsvah to force the GET. Secondly, if the husband would know that the Beth Din made a mistake to force him because the Shulchan Aruch does not consider him to be a person who may be forced to give a GET, he never would have given the GET. Therefore, the GET is invalid for two reasons, ONESS and error, and is on both counts botel min haTorah.

      To show just how delicate all of this is. The Shulchan Aruch has a discussion about a husband who is a MUMAR, he changed his religion and no longer believes in the Torah or practices Judaism. Can he be forced to give a GET? The Yam Shel Shlomo discusses this in the sefer of teshuvose of Maharshal, Ramo, and Maharam Lublin: See Maharshal teshuvo 41. If the Mumar can maintain marital relations with the wife ??? ???? ?????? even if he has changed religions and doesn’t keep the Torah we don’t force him to give a GET. Maybe the wife will influence him to change back to being a Jew. The Maharam is quoted by Maharshal that we don’t force a Meshumed to give a GET. In Shulchan Aruch Even Hoezer 154:1 we have an argument if a Mumar can be forced to give a GET.

       The idea that Beth Din can just order husbands to give a GET or suffer is not based on the Shulchan Aruch and it ignores the Chazon Ish. Again, the statement by the RCA that a Beth Din of the RCA can control whether a GET should be given is completely wrong.

However, in modern society batei din frequently lack the authority to do so. The Prenup is a document entered into by a man and woman prior to their marriage. It provides that in the unfortunate event of divorce, the beit din will have the proper authority to ensure that the get is not used as a bargaining chip.

Prenup essentially contains two provisions:

1.     Each spouse agrees to appear before a panel of Jewish law judges (dayanim) arranged by the Beth Din of America, if the other spouse demands it, and to abide by the decision of the Beth Din with respect to the get.

Dovid Eidensohn: The RCA wants everyone to sign a prenup and this would require everyone to come to the RCA Beth Din. But the RCA Beth Din has members who are not great believers in the Shulchan Aruch and Poskim especially when it comes to demonizing husbands and protecting women. Therefore, no husband should ever sign a prenup that forces him to go to a RCA Beth Din.

2.     If the couple separates, the Jewish law obligation of the husband to support his wife is formalized, so that he is obligated to pay $150 per day (indexed to inflation), from the date he receives notice from her of her intention to collect that sum, until the date a Jewish divorce is obtained. This support obligation ends if the wife fails to appear at the Beth Din of America or to abide by a decision of the Beth Din of America.

Dovid Eidensohn - If the couple separates, the Jewish law obligation of the husband to support his wife is formalized, so that he is obligated to pay $150 per day (indexed to inflation), from the date he receives notice from her of her intention to collect that sum, until the date a Jewish divorce is obtained. “If the couple separates” means that the wife walks out of the house. If so, the husband is obligated immediately to start paying her $150 a day. This is called by the RCA “the Jewish law obligation of the husband to support his wife.” Where does it say in Jewish law that the wife who walks out on the husband must be paid $150 a day or anything? See Shulchan Aruch Even Hoezer 70 the obligation of the husband to feed his wife and children. The sums there are about a wife who lives in the house not one who ran away.  And the sums there are nothing like $150 a day. This prenup is pure blackmail to force a GET whenever the wife wants it. And that, specifically is forbidden by the Mishneh in Nedorim 90B, because if a woman has the power to force a GET she can just decide to remarry and find someboy cuter than her husband. Therefore, the Mishneh clearly says that we don’t allow a woman the power to force a GET, ever. If Beth Din or proper witnesses can testify that the husband is somebody who must be forced to give a GET, that is one thing. But the wife herself cannot force a GET, period. This is because we fear she wants to change husbands. ??????? ??? ????? ???? ????. This is also quoted in Tosfose Kesubose63b by Rabbeinu Tam. Again, the statement that Jewish law obligates a husband to support his wife when she demands a GET and wants to leave the house is completely wrong. Also, forcing the husband to pay “the Jewish law obligation” is wrong because there is no such Jewish law. And forcing the husband to pay $150 a day to force him to give her a GET has nothing to do with Jewish law and is forbidden completely by Jewish law according to the Mishneh in Nedorim 90B.

3. Each of these provisions is important to ensure that a get is given by the husband to his wife in a timely manner following the functional end of a marriage. The first obligation grants authority to the rabbinical court to oversee the get process. The second obligation provides an incentive for the husband to abide by decisions of the rabbinical court, and give a get to his wife once the marriage is over and there is no hope of reconciliation.

Dovid Eidensohn: there is no hope of reconciliation. On my brother Daniel’s blog daattorah, there was, a year or two ago, a war between husband and wife and everyone thought that it would surely end quickly. Well, one day we had a picture of the two lovie dovies and to my knowledge that is the latest status. Anyone who says that “the marriage is over” is probably a feminist who wants to demonize men and support women. Incidentally, the horrible war against Aharon Friedman had the RCA ORA people in full throat to demonize him, and have him thrown out of the Washington shulls, but the wife, who ran away with their baby, is ignored. Now she left the husband with no GET, remarried a strange man, and by the RCA and its feminists, that is fine. She and her new boyfriend recently both signed up an ad for a Yeshiva affair in Philadelphia.  So the Washington rabbis and other RCA and feminist people hate Aharon Friedman, a person who followed exactly the instructions of the Baltimore Beth Din, and they love Tamar Epstein, who ran away with their baby and then left her husband and shacked up with a strange man with no GET. She is a zona but the Washington rabbis and the RCA and the feminists never criticize her.

There are at least four reasons to sign The Prenup:

1.     It is an act of kindness to prevent suffering. 

People follow the examples of others. Even if you are sure that the plight of the agunah (a woman whose marriage is functionally over, but whose husband refuses to give her a get) will never be your own, you should sign The Prenup as part of an effort to make The Prenup a standard part of every Jewish wedding. If our collective actions can bring that about, we will have played an important role in solving one of the great crises of Jewish life in modern times, and we will prevent other people from suffering.

Dovid Eidensohn – Does the Prenup present kindness and prevent suffering? Is the man who must divorce his wife and leave his children and maybe get kicked out of his house suffer? Well, that doesn’t count. RCA are feminists. But even feminists must realize that some of the children who will suffer from the divorce of the father may be girls. Is the RCA sure that all girls are thrilled when their father is forced to break up the family?

2.     It is a pragmatic document.

Aside from the inherent emotional trauma of a divorce, divorces often result in prolonged and expensive battles over finances and custody. In some cases, adding the issue of the get, and when and whether it will be given, can serve to add mistrust and emotional upheaval to a process that is already very painful. By signing The Prenup, couples ensure that if the tragedy of divorce ever befalls them, the get will not become an issue of contention.

Dovid Eidensohn- As we mentioned earlier, the RCA neglects to mention that a clear Mishneh in the Talmud, 90b in Nedorim, clearly forbids a woman to be able to say something and force a GET. But who cares about a Mishneh if you are a feminist? And incidentally, the teaching of the Mishneh, that when a woman demands a GET with the strongest reasoning in the world she can’t get it, because we suspect her of saying things to get rid of her husband so she can marry somebody else ??? ????? ???? ???? is also mentioned in Tosfose Kesubose 63B. But the RCA is so busy inventing a new Torah it has no time for Mishnehs and Tosfose.

3. It is an opportunity for a couple, on the eve of their wedding, to demonstrate their respect for each other.

The Prenup is a commitment between husband and wife that even in the very worst scenario, even if their relationship falters unimaginably, they will not harm each other and will treat one another with respect and basic dignity. There is no better way to start off a marriage than to say to your partner: Even in the very worst circumstance, even if this union should end, Heaven forbid, I will not allow myself to act indecently toward you.

Dovid Eidensohn – A wife who forces a husband who is struggling financially to fork over every day $150 is concerned about respect for each other?

4. To protect yourself. 

Marriage is an act of trust. Most often we trust that our marriage will be successful, and that the person we are marrying would never do anything to harm us. There are no guarantees in life, and it is important to take safeguards to protect ourselves from harm in the future.

Dovid Eidensohn – Yes, the RCA has revealed to us that when the husband signs over his life to his wife who threatens to rip his pants off financially, and she then takes the GET and kicks him out of the house, this is because the RCA has declared that “marriage is an act of trust.”

The Prenup was drafted by Rabbi Mordechai Willig, Sgan Av Beth Din of the Beth Din of America, and a Rosh Yeshiva at the Rabbi Isaac Elchanan Theological Seminary of Yeshiva University, in consultation with halachic and legal experts. The concepts contained in The Prenup predate 1994, when it was introduced. In 1664, Rabbi Shmuel Ben David Moshe Halevi, the rabbi of Bamberg, Germany, published a compilation of Jewish legal forms called the Nachalas Shiva. One of the forms in that book is a version of the tana’im, a Jewish wedding document, with a provision that is very similar to The Prenup. In a footnote to that provision, the Nachalas Shiva cites some authorities who held that the provision dates back to the Takanos Shum, the authoritative communal enactments adopted in the early Middle Ages by the leaders of the German communities of Speyer, Worms and Mayence.

Dovid Eidensohn: The concepts contained in The Prenup predate 1994, when it was introduced. In 1664, Rabbi Shmuel Ben David Moshe Halevi, the rabbi of Bamberg, Germany, published a compilation of Jewish legal forms called the Nachalas Shiva. One of the forms in that book is a version of the tana’im, a Jewish wedding document, with a provision that is very similar to The Prenup.

When I heard once the RCA claim that the source of the prenup was the work Nachalas Shiva I found in chapter nine the first document whereby a wife was mistreated by her husband and she fled to her father’s house. The Beth Din was summoned but it will take time for it to get organized to hear the case. Therefore, on the document prepared for just such a problem, it says that when the wife flees the house of the husband and stays with her father, the husband must pay for her food on a regular basis until the Beth Din will deal with the case and hopefully restore the marriage. This is not a prenup. A prenup is about breaking a marriage and forcing the husband to pay money until he gives a GET. That case is about a husband who forced the wife to leave the house and he has to pay her for her food until the Beth Din meets, and will surely make sure that the husband learns to behave in the house. If so, this is not a prenup that breaks up a marriage, but a sum to keep the wife in food until the Beth Din can restore the marriage when the husband is told how to behave in the house with his wife. Also, the RCA prenup is designed to break the husband financially to pay $150 a day until he gives her the GET. This is about fifty thousand dollars a year. The story of the woman who fled her house has the husband paying once a month for her food, nothing more.  How can Rabbi Willig compare these two things and say that the story of feeding his wife for a month or so is the same as his prenup that forces every husband to spend fifty thousand dollars a year or give a GET? I also checked out his claim that the Nachalas Shiva presents something like a prenup calling it similar to Takanas Shume. I checked out the statements in the Nachalas Shiva and Takanas Shume, and there are many references to Takanas Shume. But what I saw of the references are about a wedding when each side pledges money to the other side. If the wife is pledged valuables and she dies, what is done with the money? That is the Takana of Shume, and what to do with a dead wife’s property has nothing to do with a prenup. There are also other Takanas to take care of problems that arise in the marriage similar to the death of the wife I mentioned before.

Bottom line: The RCA is doing a terrible sin by presenting Prenups. The Mishneh in Nedorim 90B clearly forbids giving a woman the power to force a GET on her husband in any circumstances. We fear that she merely wants to find a new husband. This is repeated in Kesubose 63b in Tosofse. The incredible amounts of money the husband has to pay, about fifty thousand dollars a year, have absolutely no source anywhere in the Torah. The halacha of how much a husband has to pay for his wife’s food is a tiny, tiny fraction of that. See Even Hoezer chapter 70.

The RCA prenup is a document that is designed for all families that belong to the RCA to sign upon their marriage. A person who refuses to sign it or a similar document is considered an enemy of women which in the RCA is a very serious crime. Therefore, we ask a simple question. Let us take me as an example. I marry a woman. Fine. But assume that I am part of the RCA and get told that all RCA people are to sign prenups. If I resist I am looking for trouble. I am defying the entire RCA that has made the prenup the solution for all problems women have with Kiddushin. Now my wife is urged to really let me have it and force me to sign the prenup. At this point, if I refuse, I am starting off my marriage on the wrong foot. This could be real trouble. Maybe if the rabbis in the RCA get to my wife there will be a real GET. So, what can I do? Either I break my marriage and give her a GET, or else get ready for a rocky life. This is ONESS, a force done by the RCA that pressures husbands to sign a prenup. Any husband who signs such a document gets absolutely nothing out of it other than the distinct possibility that at any juncture in his marriage the wife can threaten him to do something or else. This is a terrible ONESS or threat and it certainly has all of the ingredients, not of a prenup, but of a forced prenup, and a forced prenup is only for one purpose, to create a forced GET. That GET is very likely forced and invalid, and if the wife gets a divorce with such a prenup, her next children will be most likely mamzerim.

Furthermore,  in Choshen Mishpot we have great emphasis in chapter 2007-208 about ?????? when somebody performs a monetary act that he is not really interested in keeping. An ??????  can often be invalid. This prenup is an ideal candidate for ??????. It is an ideal candidate for a woman having the power to get rid of her husband whenever she wants and find another husband. This is known as ??? ????? ???? ???? maybe her eyes are set on another man to become her husband. Here we have serious problems with the prenup. And the statements of Rabbi Willig that he found similarities to prenup in Nachalas Shiva is pure baloney. Interestingly enough, he doesn’t tell us where those similarities are in that book, as I did. He just said things that are as far as I can tell are completely wrong.

Bottom Line: Any man  who signs an RCA prenup is signing away his life. And all of the reasoning quoted here from the RCA to show how the husband benefits from signing away his life, are completely ridiculous. They are also violations of the Mishneh in Nedorim 90b and the Mishneh in Kesubose 63b that we do not allow a woman the power to switch husbands ??? ????? ???? ????. The prenup is also likely to be ?????? which is a commitment a person makes but doesn’t really mean it. What can be more of an ??????  than a man signing an RCA prenup?

The Chazon Ish we mention above says that a Beth Din that orders a husband to give his wife a divorce and the husband is not one of the very few people that the Shulchan Aruch says must give a GET to his wife, that the GET is invalid by the Torah because the Beth Din ordered it which is in the category of ONESS or force, and the GET is botel min haTorah. Also, if the husband would have known that the Beth Din are mistaken and have no right to order him to give a GET, he never would have done it. Two reasons why the GET is botel by the Torah when the RCA Beth Din requires a prenup.

I feel I have presented effective reasons why I oppose Prenups. The question is only when the RCA succeeds in making many men write prenups, and they divorce their wives as per her request, and then the wife remarries, and people like me think it is a question of mamzeruth for her new children, what happens then? At this point, I am probably going to say it like it is. I think those babies born from those prenup ladies who forced their husbands to give a GET are probably mamzerim. I say probably because there are various halachic aspects besides the basic questions that I presented. If the husband assumed that his wife would not demand a GET, does his agreement to sign the prenup become asmachto, an insincere obligation, when she does demand the GET? And if the prenup is asmachto or invalid, how can the RCA force the husband to honor the prenup which he now knows is an insincere signing of a document. A prenup is the ultimate document signed with insincere reasons or doubts and it is probably invalid. But the RCA is not troubled with this or the Mishna or the Tosfose or the Chazon Ish. It just wants to save the world with prenups, an act will surely produce many mamzerim.

Question: If the husband knew his wife would live with him a few years, have a few children, and then kick him out of the house, would he have signed the prenup? Of course not. If so, the entire signing is asmachto.

But for now I want Rabbi Willig to explain to me why his Prenup is permitted based upon the Mishneh in Nedorim 90B. And does he dismiss the Tosfose in Kesubose 63b that we suspect a woman of saying something to get a GET so she can remarry with a new husband? And is he sure that the Chazon Ish is wrong when he says that a Beth Din that demands a GET produces a GET that is ??? ????????? for two reasons? And I want him to perform the impossible by showing me a real proof in the Nachalas Shiva that prenups are kosher and acceptable.

2016 Resolution: Requiring the Use of Prenuptial Agreements for the Prevention of Get-refusal 

Adopted by direct vote of the RCA membership.

Click here for press release.

Sep 22, 2016 -- Whereas our tradition celebrates married couples living together in peace and harmony, in love and devotion all of their lives; and,

Whereas the Torah recognizes that some marriages cannot be sustained and therefore provides procedures for the termination of those marriages; and,

Whereas in some unfortunate instances a husband or wife refuses to cooperate with the appropriate instructions of a beth din regarding the termination of their marriage with a get, thereby preventing their spouse from building a new family life; and,

Whereas the prenuptial agreement of the Beth Din of America (BDA) has obtained the approval of dozens of leading rabbinic authorities and remains, in the eyes of both activists and scholars, the single most effective solution to the agunah problem; and

Whereas even those members of the Rabbinical Council of America (RCA) who follow rabbinic authorities who rule differently than those of the BDA can use a different prenuptial agreement that meets the requirements of their rabbinic authorities

Therefore the Rabbinical Council of America declares that each of its members must utilize, in any wedding at which he is the officiant (mesader kiddushin), in addition to a ketubah, a rabbinically-sanctioned prenuptial agreement, where available, that aids in our community's efforts to ensure the timely and unconditional issuance of a get.