Opinion: The Prenup Can Help Everyone
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Opinion: The Prenup Can Help Everyone

But the document poses a collective action problem: everyone has to sign on.

My husband and I agreed when we were dating that if we were ever to get married, we would frame our ketubah, the Jewish marriage contract, and hang it prominently on the wall, with a plaque affixed to the glass that read “In Case of Emergency Break Glass.”

Of course, we thought it would be humorous, but it is also true: the ketubah enacts protections for the wife and lists the responsibilities a husband has in the marriage. The ketubah is there for if and when things go wrong in a marriage.

Sadly, things do go wrong. While there is much discussion that the statistics on divorce in the Orthodox Jewish community is lower than average in society, the divorce rate is still estimated at around 30-percent. Even more tragically, of those divorce cases there are scores of women each year who find themselves trapped by a husband who refuses to grant them their get, the religious divorce, making them agunot, chained women. In countries like America which require civil marriage and civil divorce, the get has become a weapon for negotiation in the divorce proceedings. Husbands can refuse to grant their wives a get unless the wives agree to renegotiate the alimony payments; wives can refuse to accept a get unless their husbands agree to new child custody arrangements.

In response, members of the Rabbinical Council of America created the halakhic prenuptial agreement which aims to prevent agunot by providing that in the unfortunate event of divorce, the beit din (religious court) will have the proper authority to ensure that the get is not used as a bargaining chip — in short, supplementing where the ketubah has become lacking in our secular legal society.

Which is why I was so shocked to read Rabbi Avi Shafran, spokesman for the haredi Orthodox Agudath Israel of America, say that Agudah does not advocate for the use of the halakhic prenuptial agreement — the best defense against iggun — because “there is a concern that introducing and focusing on the possible dissolution of a marriage when it is just beginning is not conducive to the health of the marriage.”

Yet, that is precisely how we do introduce the marriage. In fact, we feature the precautions prominently. We read the ketubah publicly during the wedding ceremony and we hang ketubot on our walls. We recognize that intertwined in moments of love, adventure, joy, excitement and fun are moments of strife, tragedy, sickness and death. To act as though couples will not face all of those experiences would be to not truly expect a marriage to last.

Somehow we seem to have forgotten this. As we sit in the audience at weddings and we listen to the person reading the ketubah in the ancient Aramaic, we imagine in our minds the scenes that we so often see in Hollywood movies. The foreign words recall the groom’s promise to feed, clothe, and fulfill his conjugal obligations, yet we hear the cliche and more romantic promises to love, honor, and cherish. The document includes a husband’s monetary obligation in the event of divorce or his death, yet we hear “as long as you both shall live.”

The rabbis in the Talmud felt it pertinent to enact safeties to protect the wife– the ketubah. Now, nearly two thousand years later, we need to enact new safeties to reflect the new world in which we live.

The prenuptial agreement has been the subject of much discussion over the past few weeks.

Most recently, Blu Greenberg — a longtime agunah activist — announced the formation of an independent, international religious court, headed by the highly respected Rabbi Simcha Krauss, to seek “systematic halakhic solutions” to the problem of iggun. Greenberg said that the “goal is to free agunot and self-destruct,” meaning that the court itself is not the solution, but merely another path towards a world absent of agunot.

In addition to many other tools, Rabbi Krauss emphasized that the court plans to support prenuptial agreements.

Additionally, Rachel Light — who, in 2013, became the first agunah to have her halakhic prenuptial agreement challenged and upheld in a U.S. civil court — told JTA (‘The Prenup Is Not Foolproof’) “I’m so thankful that I happened to have signed [the prenup], because I don’t know that I’d be remarried today with an awesome, wonderful new family without it. But nevertheless, it’s not going to be able to help everybody in every case.”

The reason the prenup is not able to help everybody in every case? Because many refuse to sign the prenup in the first place.

Just because some people refuse to get a flu shot does not mean that the vaccination does not work. Do we throw away the vaccine and start from scratch, or do we commit ourselves more firmly to advocating and educating those around us as to why the vaccine is necessary?

This document is currently the best defense and the best offense that we have against iggun, but it can only work if we all sign on – figuratively and literally.

Which is why I am so proud that my synagogue, Bais Abraham Congregation in St Louis, MO has begun a campaign to invite all married couples in our community without a prenuptial agreement to sign the RCA postnuptial agreement– not because we think it is necessary for our own marriages, but because we believe it is necessary for all marriages. We aim to become the first Orthodox shul in which every member for whom this protection is applicable has signed the document in one of its forms.

It is true that prenups may not be the cure; but they are the vaccination. Though it is reassuring to know when you get sick that your doctor has the cure, most of us would much rather avoid getting sick altogether.

We can treat the problem or we can prevent the problem. Personally, I prefer prevention. Prevention is the first step towards eradication.

Rori Picker Neiss serves as Director of Programming, Education and Community Engagement at Bais Abraham Congregation in St Louis, MO as she completes her studies at Yeshivat Maharat.

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