The Rabbinical Council of America (RCA) calls its prenuptial agreement (“The Prenup”) the “single most effective solution to the agunah crisis.” Since 2006, the RCA has prohibited member rabbis from officiating at marriages for couples who do not sign “The Prenup.”
Jewish divorce law is asymmetrical and it offers men a very powerful weapon. Even if a couple has a civil divorce, they are considered religiously married until the husband, freely and of his own will, gives his wife a get, the Jewish writ of divorce. Sometimes men withhold the get out of spite. Others use it as a bargaining chip for to negotiate marital property distribution, alimony, child custody, child support, or simply to extort thousands or millions of dollars from their wife or her family. A woman may have to choose between giving into her husband’s demands and never being allowed to be in another relationship or to have future children.
“The Prenup” purports to neutralize that weapon. In a contract designed to be civilly enforceable, grooms promise to pay support payments of $150 per day for each day between the separation and the religious divorce. In theory, the husband is incentivizing himself, rather than being coerced, to give a get promptly. If he fails to do so, then with the permission of the RCA’s rabbinical court, the Beth Din of America (BDA), the wife may enforce that financial obligation in secular court.
However, the original goal of “The Prenup” had little to do with protecting women. In 1997, Rav Zalman Nehemia Goldberg, one of the Prenup’s two co-authors, said “the main purpose of the RCA Prenup was to insure that litigating couples bring their dispute before religious courts, rather than secular courts.” A tenet of Jewish law is that disputes among Jews, including those that arise in the context of a divorce, belong in Jewish courts. “The Prenup” was meant to address the reality that many divorcing Jewish couples choose secular American courts instead.
The most prominent clauses in the standard “Prenup” – the middle – give the Beth Din power to rule on the division of property and alimony, or on “all disputes.” This broad phrasing encompasses child custody and child support. These clauses are technically voluntary (opt-in) but fairly subtly so. A couple who initials these clauses and executes the full “Prenup” sign away their rights and protections under secular law and subject themselves, if not their children, to the “binding arbitration” of the Beth Din of America. They may indicate whether the Beth Din should decide financial matters in accordance with Jewish law (halacha) or in accordance with civil law, but no explanation is provided regarding the difference. No choice at all is offered for rulings on child support and child custody leaving it unclear whether the Beth Din will use the secular “best interests of the child” standard or rely on its interpretation of Jewish law, which may differ substantially and to the detriment of women.
The RCA recognizes that women fare worse in Jewish courts than in secular ones. Rabbi Mordechai Willig, Goldman’s co-author of “The Prenup” and current Deputy Head of the Beth Din of America, acknowledges:
“…some women or their attorneys will object to the inclusions of monetary disputes (e.g. property settlements, alimony, child support) in the arbitration agreement, for the current secular law of equitable distribution and maintenance or community property will generally result in a larger financial settlement for women than does enforcing the provision of the standard ketubah.”