Beyond The Pre-Nup: Training Orthodox Attorneys to Practice in Rabbinic Courts

All we need to do to solve the Agunah problem for the next generations is to ensure the widespread use of the “halachic prenuptial agreement,” right?

Wrong.

Pre-nups are agreements by which the husband, who is obligated by Jewish law to support his wife (mezonot), voluntarily obligates himself to give his wife a sum (usually about $200 per day) for every day he fails to appear before a bet din for purposes of giving her a get. Indeed, these agreements can be enforced in a court of law in the manner of any executed contract. The pre-nup, however, addresses only those cases where the husband refuses to appear before a bet din and give a get.

Yet to be addressed is this question: What happens when the husband gets to the bet din? What happens when he demands, as a precondition to his giving the get, that all matters related to the divorce – including property distribution, support, and custody – be submitted to the bet din, not to a secular court, for adjudication? Worse, what happens when he declares to the bet din that he will “voluntarily” give the get on condition that his wife waive all her interest in the property and/or reasonable support?

In effect, such a demand compels the bet din to serve as a go-between rather than an arbitrator, and pressure is placed on the wife to accept the husband’s grossly inequitable terms in order to obtain her get. Unfortunately, such a demand is entirely in keeping with Jewish law orhalacha; in fact, there is a stringenthalachic injunction against submitting any civil matter against another Jew to a non-Jewish court.

This demand is the unspoken subtext that, my experience proves, continues to bind women in agunah’s chains.

I do not address myself here to the extreme cases in which mean-spirited men inflict anguish on their estranged wives. Nor do I address myself to the oft-repeated refrain that batei din are corrupt. Rabbi-bashing is not a constructive use of resources, especially since batei din are integral to Jewish life, particularly on the issue of the get, and are here to stay.

My focus, rather, is on the common and pervasive use of batei din, by many men, to secure the kind of inequitable financial settlement they could never obtain in a secular court of law.

Marriage under secular law (unlike under Jewish law) is deemed an economic partnership. Assets accrued during the course of a marriage are equally, or, as in New York, equitably, distributed upon dissolution of the partnership. Jewish law does not recognize assets accrued during the marriage to be “marital” or shared property. Instead, property and money acquired by the husband alone or the couple together belongs solely to the husband. (A business that the wife alone created and managed may be acquired by her under certain conditions.)

What this means is that if the wife had been taking care of the children while the husband was running a business, under Jewish law she is not entitled to any portion of that business. Nor is she entitled to any maintenance (formerly alimony) or retirement benefits, as a man has no obligations whatsoever to his divorced wife. His sole responsibility is to support his young children (to the age of six) and to provide for their education. The only property to which she is entitled is that which she brought to the marriage; her dowry; separate property; or that which she received by inheritance or gift during the marriage.

In other words, he says to her, “O.K., honey, you want your get? Fine! But I will only give it to you if you do not go to secular court.” Even if the wife has already sued and obtained a civil divorce and court adjudication as to all financial issues, she may have no choice but to acquiesce in re-opening all issues before the bet din on pain of not getting her get.

Is it any wonder, then, that most men prefer to have their financial divorce issues decided in accordance with Jewish law – even men who would never consider submitting their own business disputes to a bet din? The coupling of personal greed and religious justification has thus given birth to a perverted use of batei din.

In earlier times, the ketubah was meant to provide for the divorced wife and is, in fact, a pre-nup. But at some point in history it lost its efficacy and has been transformed into a liturgical document, especially among Ashkenazi Jews. (Some Sephardim negotiate the ketubah seriously and specify large sums in the event the man wants to divorce his wife – one or two million dollars rather than the proverbial “two hundred zuzim.”)

But today we are confronted by a terrible void – one that is exploited by many men who know they have no halachic obligation to support a divorced wife while the wife is bereft of any claims to marital property.

What can be done to remedy this dire state of affairs? As our Sages tell us in Pirkei Avot, “It is not your obligation to complete the task, but neither are you free to refrain from attempting to do so.”

We who are experienced attorneys must engage with the rabbinic courts to ensure that the procedural safeguards to which batei din are subject, both under New York State Rules of Arbitration and under halacha, are enforced.Among those safeguards: no ex-parte communications between parties orto’anim (rabbinic advocates) and the dayanim/ arbitrators; discovery of all financial matters must be produced or subpoenaed; evidence presented to judges is also to be provided to the other parties; witnesses are to be subject to cross-examination.

Additionally, we licensed attorneys must master a course of study in practical halacha so that we can effectively argue cases before rabbinic courts. Since the rabbinic courts generally act as courts of equity and base their decisions on peshara (compromise) rather than din (the strict letter of the law), our professional training and presence is especially warranted.A course of study is available in Israel to train to’anot (female advocates who are not lawyers) to appear before the rabbinic courts only. Yet there is no institution anywhere in the Diaspora that offers something similar.

There are many male and female attorneys who are conversant with Jewish texts and adept in the art of persuasion. Our clients who must submit to the jurisdiction of a bet din would be better served if we were also trained in the halachot governing divorce and bet din procedure.

As attorneys, we are held to a professional standard of ethics and are empowered to invoke the rule of law in safeguarding proper procedure before a bet din under the rules of arbitration. Will this solve the problem? No – but it will go a long way toward improving the professionalism of batei din, and that is an essential part of the solution.

Tze u’lmad – let us go and learn.