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.
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