Pre-Nups in the News

I’ve written a number of times about pre-nuptial agreements in general and specifically, halachic pre-nuptial agreements intended to prevent issues of refusal to give or accept a get, a Jewish bill of divorce.

The Tzohar organization in Israel has recently formulated a new halachic pre-nuptial agreement, which they refer to as a  “love agreement”. Not sure I would have gone with that particular moniker, but if it works….

The agreement was formulated by a number of very knowledgeable and responsible people in the fields of Family Law and Jewish Law, so I expect it will be widely used. Having said that, as good as an agreement may be, it’s always the wiser part of discretion to consult with an expert before signing any kind of an agreement, to make sure it serves your needs.

In addition, an article by Chicago filmmaker Beverly Siegel- director of the 2011 film “Women Unchained” –  in the Tablet recently caught my eye. It’s a great survey of the whole issue of pre-nuptials. Here’s a segment  of the article, but I highly recommend reading the entire piece:

The earliest prenuptial agreement to prevent get refusal was developed by rabbis in Morocco in the 1950s and endorsed in concept by the chief rabbi of Jerusalem in the 1980s. In the early 1990s, Rabbi Mordechai Willig developed an American version at the behest of the Rabbinical Council of America, the main association of Modern Orthodox and centrist Orthodox rabbis, with which the Beit Din of America, a rabbinic court, is affiliated. A decade later, Israel came out with its own version, known as the Agreement for Mutual Respect.

The BDA agreement contains two simple provisions: First, if either spouse requests, the couple agrees to appear before a panel of dayanim, judges, and to abide by their decision regarding the get. Second, if the couple separates, the husband’s obligation under Jewish law to support his wife will be set at $150 a day, indexed to inflation, from the date he receives notice of her intention to collect, until the time that they are no longer married under Jewish law—i.e., until he gives a get.

The prenup says nothing directly about a get, as that could be interpreted as compromising a man’s free-will decision to give it; the man must give the get freely—although in the 12th century, Maimonides created a loophole that allowed rabbis to beat a man to help him realize that he willed his wife her freedom. Instead, the prenup just enforces the husband’s obligation, as set forth in the ketubah, the Jewish wedding contract, to support his wife. Basically, the prenup imposes a monetary cost to a husband’s decision to stay married to her.

But if the wife fails to appear in beit din or abide by the court’s decision, the husband’s support obligation ends.

“It’s a rock-solid solution,” said Rabbi Yona Reiss, head of the religious court of the Chicago Rabbinical Council and past director of the Beit Din of America. The prenup, said the Yale-trained lawyer, “has produced a get in a timely fashion in 100 percent of the cases where it was duly executed.”

Before it was challenged in civil court, however, some critics contended that if the prenup worked, it was only because the men who signed it would have given a get without a dustup anyway. Doubts about the prenup’s ability to withstand a legal challenge were significantly allayed in February 2013 when a Connecticut court affirmed its constitutionality. In the opinion of the judge, the BDA prenup, in terms of enforceability, was no different than a secular contract.

“It’s a huge win for the Orthodox Jewish world,” said Dr. Rachel Light, the agunah in the case, who received a significant award and a get.

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Free-Range Sabras

Inspired by the recent ruckus in the United States over “free-range parenting” as opposed to “helicopter parentingJessica Steinberg of the Times of Israel has written an interesting – anecdotal – article describing the freedom given to Israeli children.

Every day, most Israeli kids head to school. Some get dropped off by their parents, others take a public bus or ride a bike, and many get there on foot, often alone, sometimes accompanied by an older sibling.

Call it limited-range parenting.

When an American 10-year-old accompanied his 6-year-old sister to the library in a Maryland suburb a few weeks back, the local police ended up bringing the children home and threatening the parents with social services.

The event prompted numerous Facebook threads, blogs and tweets about “helicopter” parenting versus “free range” parenting, pitting parents who hover closely over their offspring against those who want their kids to roam free, or at least as far as the local playground.

From afar, it’s easy for Israeli parents to scoff at overprotective American parents who don’t or can’t let their kids walk home from school by themselves….

The impromptu debate also offered an opportunity to look at some of Israel’s parenting methods, and why Israeli kids are still allowed — by and large, and usually as of a certain age — to roam on their own.

For while Israeli parents worry about national and political security — and about their kids entering the army at age 18 — those concerns don’t usually translate into limitations on kids in their immediate surroundings.

“The culture in Israel is much more free and neighborhood-centric,” said Asher Ben Arieh, a professor of social work at Hebrew University who has researched child well-being for much of his career. “The Israeli community still exists and therefore kids are a part of it.”

Israeli neighborhoods tend to still be safe places, said Ben Arieh. There are exceptions, of course, such as December’s arrest of a Jerusalem taxi driver who is suspected of kidnapping and sexually abusing a 7-year-old girl after picking her up from school where she was waiting for her ride home.

Yet there is a sense of security in most neighborhoods. Kids often recognize their neighbors and even if they don’t, there is an ingrained tradition of looking out for one another, as exists in many places.

In Israel, precautions are taken to protect children when they’re out on their own. Schools have older kids serving as so-called “gold guards,” crossing guards garbed in neon yellow vests at crosswalks close to schools who offer a safe route for children walking on their own to school each morning. Public service announcements are broadcast on the radio, recommending parents that only kids aged nine and up can ride bikes and cross streets by themselves.

You can read the entire article here.

 

 

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Wanting Out

One of my earlier blogposts was entitled Aliya and Shaky Marriages, about the pitfalls of making aliya in the hope of saving a bad marriage. (Spoiler alert: it’s a bad idea).

A recent decision by Judge Rivka Makayes of the Family Court in Petach Tikva, emphasizes yet another, highly problematic aspect of the move to Israel; specifically, when one spouse cynically plans the move to exploit tactical advantages in a legal battle with the other spouse, a battle which he or she has planned, but (obviously) conceals from the other partner. It’s actually a really crass and cynical attempt at forum shopping.

The case before the court was brought by a woman who lived in the United States with her husband and family. The couple went through a crisis and the marriage was pretty much on the rocks. The husband suggested to the wife that they come to Israel for a six-month trial period, in order to engage in counseling, and get the wife away from her lover in the States.

They had return tickets, and there were clear objective indications that the wife understood they weren’t here to stay. Nonetheless, after about two or three months in the country, the wife and minor child applied for Israeli citizenship, which, according to the wife’s testimony, was a result of the husband having convinced her they needed to do this to be eligible for health insurance.  At around the same time their citizenship came through, the mother was served with a divorce suit from the Rabbinical Court, attached to which were suits for property, spousal support, child support and child custody.

Obviously, anyone stuck in a country where they don’t want to be – in which they had no plans of living for more than six months – is in a lousy position when hit with a lawsuit like this. At the outset the playing field is not level, since she wants to leave and get back to her home. Consequently, regardless of where something like this happens, she is going to negotiate an end to the suit on conditions that are less than favorable to her.

When this happens specifically in Israel, a woman who has never worked or has little earning power is at a distinct disadvantage, since in Israel, there may be no spousal support before the divorce and certainly no alimony with the dissolution of the marriage. Often, there is no spousal support at all if the husband has serious grounds for divorce, which is the case where there is adultery. So, here is a case where the husband – apparently a successful lawyer with property, and knowledge and control of all the family finances – might be free of any obligation to pay spousal support or alimony, which in all likelihood would not have been the case had the divorce proceedings taken place in the United States. Continue reading

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Taking a Stand

Rabbi Jeremy Stern of the ORA organization takes a stand against Yechiel Friedman, a man refusing to give his wife a get for at least 18 years.

For those of you unfamiliar with Jewish ritual, Rabbi Stern is refusing the count Mr. Friedman in a minyan, the quorum of ten men required for Jewish prayer.

Kudos to Rabbi Stern and ORA for their good work, and for taking a stand, for making the refusal to give – or receive – a get, socially unacceptable.

(Hat tip: EZ)

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Another Point of View

I asked Adv. Michal Fein, a co-member of Divorcing Peacefully, the collaborative divorce practice to which I belong and one of the architects of the new law which I criticized in my post below, to respond to the critique of the law.

Michal very kindly did so, and I post her comments, in Hebrew here. Interspersed is my translation to English of her remarks.

“סוף מעשה במחשבה תחילה” – תגובה קצרה מאת עו”ד מיכל פיין

ביום 9.12.14 מליאת הכנסת אישרה בקריאה שנייה ושלישית את הצעת חוק להסדר התדיינויות בסכסוכי משפחה (הוראת שעה), התשע”ה-2014, אשר יכנס לתוקף בעוד תשעה חודשים.

יש להתפלא על כך, שדווקא כאשר המחוקק ממלא את חובתו ועושה צעד לקראת צמצום הפער בין חקיקה מיושנת למציאות משתנה – התגובה העולה מקהילת המשפט בישראל מבטאת פחד וחשש מפני החדש והלא ידוע למרות ההסכמה הכללית שהמצב הקיים הוא בלתי נסבל.

הלוחמנות, הבריונות והאלימות המשפטית המאפיינים את (העדר) תרבות הגירושין בישראל גובים מחיר חברתי עצום והמדינה נאלצת להשקיע משאבים אדירים במימון “מלחמות היהודים”. זאת מבלי להתייחס לנזק שאין חמור ממנו לרקמה האנושית של המשפחות המפורקות בכלל ושל הילדים בפרט. ובשביל מה

 On Dec. 9, 2014 the Knesset approved on second and third readings the proposed Law for the Settlement of Litigation in Family Conflicts, which will come into effect in nine months.

It’s surprising that while the legislative branch actually fulfilled its obligation and took a step to diminish the gap between archaic legislation and changing reality – the reaction coming out of the Israeli legal community is one of fear and suspicion of the new and unknown, despite the general consensus that the current situation is unbearable.

The militancy, bullying and legal violence which characterize the (lack of) culture around divorce in Israel exact a tremendous social cost and the State is forced to sink huge resources into financing the “wars of the Jews”. This, without relating to the damage, incomparable in its severity to the human fabric of the families torn apart, in general, and to the children, in particular. And for what? Continue reading

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Paved with Good Intentions

As in, the road to hell is paved with…

I’ll open this with an apology: I am aware that there are good and idealistic people who have invested time, energy and thought into the new law forcing people in family conflicts to take a long time – over nine weeks – to explore Alternate Dispute Resolution (ADR). Despite the good intentions of these good people, what springs to my mind is that John Lennon (think: Imagine) has met the Emperor’s New Clothes. So sorry, I for one am wishing this new law would just go away.

In Hebrew the law is:

החוק להסדר התדיינות בסכסוכי משפחה (הוראת שעה), תשע”ד-2014

A rough translation: The Law for the Settlement of Litigation in Family Conflicts (Provisional Order),  5774-2014.

In the closing days of this last Knesset – since we head for new elections March 17, 2015 – our lawmakers (actually, just 9 out of 120 Members of Knesset were there for the actual vote) – saw fit to actually prohibit people from litigating family disputes without first spending over two months exploring options to litigation.

As family conflicts becoming increasingly difficult, far more intense and entrenched, rather than invest the resources necessary to deal with high conflict, a kind of hope addiction seems to have infiltrated some of the movers and shakers in the world of family law in Israel. I can’t be part of the choir singing praise for this law; I have a sinking feeling that it’s a law filled with pitfalls which will leave the weak weaker, and exacerbate the failure of the system to adequately address the issue of high conflict families.

Don’t get me wrong, I’m all for alternate dispute resolution – under the right circumstances. I’m a mediator, collaborative divorce practitioner and I encourage clients to reach good agreements that will allow them to move on with their lives rather than spend their time and money using the law to take revenge. I like to think that no judge or client will ever say that I litigated without cause.

However, courts have a critical role to play, particularly in dealing with high-conflict couples, couples where there is emotional and financial abuse, unhealthy parental gate-keeping, and disparity in control of and knowledge of the finances. Properly timed filing of a lawsuit can be the very trigger which changes the power relations, and allows for serious negotiations to take place.

Now we have a sweeping law which diminishes the autonomy out of the individual, individuals who may have had their autonomy seriously limited or derailed by their intimate partner.

After that little rant, what’s the law? Continue reading

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Missiles Falling, Doors Opening

A post in the Times of Israel by Adv. Osnat Sharon, rabbinical court advocate and director of Yad L’Isha.  Illustrates a piece of the absurd balancing act with which we all live here in Israel:

The following story was shared with me by Rabbinical Court Advocate Dina Raichik, a senior staff member of Yad L’isha: the Monica Dennis Goldberg Legal Aid Center and Hotline, who has been serving clients in southern Israel since the opening of our Beersheba branch in 2012.

Yesterday, I went to the rabbinical court with R, a woman whose domineering husband had refused to grant her a divorce for the past 15 years. R had come to my office in Beersheba about a year ago, shortly after we opened the southern branch. She told me that she had been represented by a number of private lawyers over the years, but other than eating up all of her savings, nothing had been done to further her case. R was still living in the same apartment with her husband, with each having taken over different parts, but she was desperate to get out. “He told me that if I gave up my half of the home he would give me a get [divorce]. The offer has been growing more and more tempting to me lately,” she confided. “I’m just so tired.”In my years of advocacy I have seen tens of women become trapped in this quandary. Many of my clients have been victimized for so many years that all of their self-confidence and emotional strength has been sapped. After years of being beaten down, even the strongest, most accomplished women begin to crack. The signs of victimization begin to show. Denied freedom again and again, unable to start a new life or family causes terrible damage to these women and their children. Some even start to believe that everything is somehow their own fault.

When women like R come to Yad L’isha, we not only provide them with legal representation in the courts, we also provide them with coaching services and the emotional backing they need to regain their self-esteem and stand up to the extortionary demands of their husbands. After dozens of discussions and laborious negotiations which lasted several months, R’s husband and his lawyer finally understood that the newly-empowered R was not going to give in. They understood that I, her advocate, was going to win the chiyyuv get ruling which would compel the granting of the get. And they understood that the time had come to come to an agreement. We drew up a contract in which R’s husband would grant her a divorce, give her half the apartment, and undertake to pay his own way out of his personal debt. The hearing was scheduled for yesterday.

And then missiles began to fall.

The night before the hearing, R was so excited she did not sleep. She arrived at the court as soon as it opened, even though her case was not scheduled to be heard until the late morning hours. Just as we sat down for some coffee, a Code Red alarm sounded; I was startled, but R was undeterred. “I don’t care about being injured by shrapnel, about a wall falling on me,” she said. “Today I will receive my get.”

Suddenly I realized the tremendous privilege I had to be able to accompany women like R through thick and thin; through water and, yes, through fire. The divorce is not just a piece of paper given by the husband, it symbolizes a woman’s freedom, her ability to regain her independence and her right to self-determination.

When it was finally time for R’s hearing, she went in with her head held high – finally, this was going to be her day! Then, just as the rabbis were questioning the couple to ensure that they were both agreeing to the divorce willingly, the missile warning alarm sounded yet again. R stared at the rabbis, unwilling to move; she had waited too long for freedom to have it postponed. She continued to stare at the rabbis. The rabbis remained in their seats. In fact, we all remained in our seats – even as we heard the other rooms emptying out and people scurrying to the bomb shelter. The rabbis continued with the proceedings even as the alarm continued, even as loud “booms” were heard as the missiles landed in an open field right outside of town. But R didn’t hear any of those things. All she heard were the rabbis’ words:  your divorce is final. You are free.

R

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