Enforceability of Religious
the years since Perri Victor's divorce has been finalized, she has tried to
move on with her life. She is raising a young daughter from that marriage and
finishing up law school. Perri and Warren Victor were married in an Orthodox
Jewish ceremony in Florida in 1976. They received a civil divorce in 1990.
However, as an Observant Jew, Perri cannot remarry until Warren gives her a
Jewish religious divorce
as a get. Since late 1987, she has been pleading with Warren to give her a get.
When Warren asked her to give up a portion of her equity in the family home in
exchange for the get, she agreed. Realizing the power he had over Perri, Warren
further demanded sole custody of their daughter before he would grant the get.
Perri refused. Vindictively, Warren refused to give her a get. Thus, in the
eyes of Jewish law, she
a married woman. Perri would like to date, remarry, perhaps have other
children, but because Warren refuses to grant her a get, she is unable to. She
is an agunah,1 literally, a chained woman, bound against her will to a man she
no longer loves.2
Observant Jew adheres to two sets of laws: the secular laws of the country in
which he or she lives and the Jewish legal system. For example, an American
couple that wished to observe Jewish law would be married both religiously and
civilly.3 Just as a civil marriage only can end with a civil divorce or the
death of one of the parties, a Jewish marriage only can end with death or
Jewish divorce.4 Thus, a couple wishing to observe Jewish law must obtain both
a Jewish and a civil divorce.5
it is the state that originally confers marital status, a civil judge has the
power to dissolve a marriage.6 However, under Jewish law, both marriage and
divorce are contractual relationships between the parties.7 Because Jewish
marriage begins when the husband and wife enter into a contractual relationship
in which they each accept certain responsibilities towards one another, it can
only be brought to an end by a contractual recognition that those obligations
have ceased. A Jewish divorce is a contract,9 a get, stipulating that the
marital obligations of the couple have come to an end.10 To be valid, a get
must be freely given by the husband, and freely accepted by the wife.11 The
original marriage contract, the ketubah, is then slashed to indicate its
a get, an individual who recognizes the authority of Jewish law cannot remarry,
even if the individual receives a civil divorce. Since the get is a contractual
proceeding, if either the husband or the wife refuses to participate, there
cannot be a divorce agreement. The parties remain married in the eyes of Jewish
law.13 The problem arises, as in the case of Perri Victor, when one party
wishes to be divorced, but the other party refuses to grant or accept the
divorce. The spouse wanting divorce is left with two undesirable options:
The.spouse can either abandon her religious convictions by remarrying in a
civil ceremony or in another denomination of Judaism permitting remarriage
without a get,14 or she can remain chained to the recalcitrant spouse.15
problem of the agunah has increased due to both the gradually increasing
divorce rate in the traditional Orthodox community16 and the rise of
distribution and custody statutes that are more favorable to women than those
at early common law. Increasingly, some spouses, usually men, have withheld
religious divorces.17 They do so to secure concessions concerning property,
custody, alimony, or out of sheer maliciousness. 18 In response to the growing
number of agunot, scholars and organizations have suggested a number of legal
and communal responses to free spouses in this situation. These proposed
solutions include utilizing civil courts and state legislatures,19 mediation,20
community pressure,21 and the development of a Beit Din22 more open to the use
of halahkic23 innovation to end the marriage.24 All of these solutions are
problematic in some way, and none have been fully accepted by the entire
attempts to address this problem focus on ex post solutions, once there is
already a marriage that is dissolving and a recalcitrant spouse who refuses to
consent to the Jewish divorce. This article, in contrast, focuses on an ex ante
solution - a prenuptial agreement, essentially a secular contract signed before
the wedding ceremony, with the possibility of eliminating the problem of the
agunah in the future.25
II of this Article describes the development of the Jewish laws of divorce, and
the role of Jewish courts in the process of Jewish divorce. Part III outlines
the current status of Jewish divorces in the United States. Part IV describes
the response of American courts and legislatures to the problem of a spouse who
refuses to give a get. It also describes the difficulties that. arise because
of the interplay between Jewish and secular law. Part V examines the
development of religious prenuptial agreements. It describes various types of
prenuptial agreements and attempts to use prenuptial agreements to resolve this
issue within the affected Jewish community. Part VI describes the status of
these prenuptials under civil law, focusing on the constitutional issues involved
in the enforcement of these agreements by American courts. It also looks at
other possible legal alternatives for re solving the issue of a recalcitrant
spouse. Finally, Part V11 scribes the halakhic implication of the prenuptial at
Jewish, and possible means to resolve the various difficulties that arise. This
Article presents the effect of the interaction of, and Jewish law on both the
enforceability and practicality these agreements. It also suggests steps to
maximize the acceptance of these prenuptial agreements in civil and religious
THE JEWISH DIVORCE
Jewish law of divorce has evolved over time. According to Biblical law, the
husband had the power to divorce his wife will.26 In the tenth century,
Gershomides, the leading Rabbinic, sage, issued a decree that is still
binding,, requiring that woman willingly accept the get for it to be valid,
thus preventing men from divorcing their wives without their consent.27 Since
the tenth century, Jewish law has required the get (similarly the ketubah) to
be given willingly by the husband and to be accepted willingly by the wife.28
This approach of Jewish law analogous to the common law requirement that
contracts are invalid if entered into under duress.29
role the Beit Din in marriage and divorce proceedings are very different from
the role of a court at common law because at Jewish law, marriage and divorce
are interpersonal contracts30 in which the parties lay out their rights and
duties to each other. All that is needed are witnesses to the contract to
effectuate the marriage or divorce.31 Thus, the Beit Din is involved only in
CL' tested divorces to determine the appropriateness of the parties to get
a divorce is contested in a place and time where the Beit Din's authority is
recognized, the Beit Din hears the case." The Beit Din inquires into two
major issues: the basis for the divorce and the settlement.33 If the husband
instigates the divorce, he is permitted to divorce his wife for a wide range of
reasons.35 Alternatively, the wife wanting to divorce her husband can initiate
the divorce proceeding only in certain situations.36 Examples of facts which
allowed women to petition for divorce included impotence or sterility, physical
or verbal abuse, habitual infidelity, refusal to engage in sexual relations,
refusal to provide financial support to the wife, or forcing the wife to
violate the halakha. Other reasons would include certain changes in expectation
or status, such as the husbands becoming a non-believer, getting a disease
which rendered him repulsive to his wife, or engaging in an occupation which
rendered him physically repulsive.37
on the grounds for divorce, the court would issue a finding ofyotze or kofin. A
decision of yotze means that the court found valid grounds for divorce, and it
would require the hus. band to grant the get, although it could not use
coercive measures.38 Alternatively, a finding of kofin gives the wife a right
to a divorce rather a simple permission to divorce. In this more serious situation,
the court would compel the husband to divorce his wife.39 For example, a
finding of kofin is appropriate if the husband were to refuse to support his
wife financially or to engage in sexual relations with her, thereby violating
his contractual obligation under the ketubah.40 However, if the husband wished
to get a divorce because the couple had been married for a period of ten years
but were unable to have children, then a finding yotze would be appropriate.41
a yotze situation, the court can enforce its decision only by imposing
psychological measures on the husband, such as cornmunity pressure or public
proclamation of disobedience.42 Alternatively, if the court were to find that
the situation was dire enough to force the husband to grant the divorce - a
kofin situation - the court could use coercive measures, including fines,
corporal punishment, imprisonment, or even threat of death to insure
compliance.43 The use of coercive measures seems to violate the requirement
that the get cannot be executed under duress. Maimonides, however, explains
that the true will of every person is to do what is right, and if they refuse
to do so, that is not their true will.44 Thus the husband's eventual consent to
the will of the Beit Din is his true desire.45 This "persuaded"
consent applies only to kofin divorces. In a non-kofin situation, a get that is
obtained through coercion results in an invalidation of the get because it is a
contract entered into under duress.46
THE HISTORY AND CURRENT STATUS OF GET PROCEEDINGS
smooth functioning of the get proceeding in cases of contested divorce depended
to a great extent on a strong judiciary and a unified community. Both of these
factors began to break down in the eighteenth century. As Enlightenment ideals spread
throughout Europe, Jewish communities were emancipated. Countries gave Jews
citizenship, provided they relinquished their judicial and legal autonomy.
Jewish law continued to govern private action and religious worship, but the
applicable secular law governed all other action.47 Marriage and divorce
sometimes remained within the Jewish community and sometimes came under the
secular authority's control.48 With the dissolution of the autonomous Jewish
community, the Beit Din lost its official status.49 The power and influence of
the Beit Din shrank, especially as Jews came to view the use of the secular
courts as a promising development in the attainment of equality of rights.50
of the current Batei Din are not standing courts,51 Rather, similar to many
arbitration tribunals, the Batei Din a, composed of three judges, where each
party picks a judge, all the two judges agree on a third. As temporary bodies,
the courts have limited influence.52 In addition, because each pal selects a
judge, the courts are often subject to allegations of cr, ruption, because the
judges may be misperceived as advocates.53 However, some Batei Din are standing
courts. They are often connected with institutions or movements such as the
Beth Din of the Rabbinical Council of America, the Beit Din of the Agudat
HaRabbonim, and courts connected with specific Hasidic sect.54 These
institutional courts tend to have slightly more influence.55
the Beit Din's power exists only to the extent that is recognized. The Beit
Din's only real tool to enforce its deterf nations is communal pressure.56
However, the effectiveness of the community pressure is compromised because a
party can move geographically or change synagogue affiliation.57 A Beit Din's
decrees are supposed to represent Jewish law, but if litigants disagree with an
outcome, they often condemn the court, corrupt.58 Thus, Jewish courts are
reluctant to even hold son one in contempt (issue a seruv) because they do not
wish to issue statements that are ignored.59
in secular society, a contested Jewish divorce has proven to be most
troublesome. If one party refuses to participate in the get proceeding, there
is no way to compel him or her. One can attempt to convince the recalcitrant
party to participate in the process, but even if the recalcitrant spouse
appears before a Beit Din, and the Beit Din orders the spouse to participate,
the Beit Din has no means of enforcing its decrees.60 Thus, one party is forced
to remain married to someone to whom they do not wish to be married, without
the possibility of dating and remarrying.
THE AGUNAH PROBLEM
fragmentation of the Jewish community and the growing prevalence of divorce
factor heavily in the current agunah problem. The fairly common occurrence in
divorce cases where one spouse is more observant than the other exacerbates the
conflict. One spouse may have nothing to lose in not participating in the get
process, because they may be comfortable remarrying without one. As Rivka Haut
the director of Agunah Inc., a support and service group for agunot has noted,
"until 15 or 20 years ago, divorce in the Orthodox world was almost
unheard."61 Today, about 21 percent of American Jews have been divorced.62
A survey of 800,000 divorced Jews indicated that 113,000, approximately 14
percent, had a get.63
the typical agunah case, the husband refuses to give his wife a get until she
makes concessions on property, alimony, visitation, or custody that otherwise
would not be, or were not, granted by the civil court. For example, 'Claire'
worked with a New York divorce-court judge to offer [her ex-husband] a 'fair
and reasonable compromise.'" Claire gave her husband $200,000 and accepted
minimal child-support payments in exchange for a get. "The package was
extremely beneficial to him financially" said Claire, who is now
remarried, "but I took it because otherwise he never would have given me a
some instances, the husband does not want a divorce, and will refuse to give a
get in the hope that his wife will change her mind and agree to remain married.
For example, during Linda R.'s five-year marriage, her husband drank and had a
bad temper. He began abusing Linda until she fled with her toddler.
the marriage collapsed, Linda spent two years as an agunah. "He was obsessed
with me," said Linda R., 33. "It was,'[i]f I can't have you, nobody
can.' People don't know what to do with us. It's a type of slavery. We're at
their mercy. " In other if stances, such as an abusive relationship, the
husband will refuse to give a get out of spite. Such is the case of Hannah
Fine, Queens resident and mother of three, whose husband, Larry Fine, a divorce
lawyer, withheld a get from her for seven years. Upon finally receiving her get
she remarked, "I can go to sleep every night peacefully now... I feel a
sense of relief you can't imagine."66
a husband who withholds a get then wishes to remarry in an Orthodox or
Conservative ceremony at a later date, he can execute the get at that time, or
if he wishes remarry in a Reform, or civil ceremony without executing the
get." His wife will remain an agunah, bound to a man from whom she is
civilly divorced, unable to remarry except in a Reform or civil ceremony.68
ATTEMPTS AT CIVIL SOLUTIONS TO THE AGUNAH PROBLEM
agunot have turned to the civil courts in an attempt to arrive at a solution to
the problem of a recalcitrant spouse. One line of cases deals with an explicit
agreement, usually in the civil divorce decree, whereby the parties agree to
give a get at a specified time, usually simultaneously with receiving a civil
divorce. When one party fails to fulfill this obligation regarding the get the
other party brings an action requesting specific performance.69 Some
jurisdictions have enforced these provisions, holding that they do not create
First Amendment difficulties.70 The courts have stated that fulfilling the
agreement does not require a profession of faith,71 rather, that it simply
requires the party to perform an act to which he himself previously agreed.72 For
example, the court in Waxstein v. Waxstein73 upheld a provision of a separation
agreement requiring a husband to give a get. The wife had already transferred
property as required under the agreement.74
second line of cases has gone farther and inferred agreements to give a get.
These courts have found that marriage in a religious ceremony or the clause in
the ketubah indicating a commitment to live "according to the laws of
Moses and Israel" infers a prior commitment to grant a divorce should the
marriage dissolve.75 Thus, these courts have created a de facto prenuptial
agreement to give a get.
enforcing an agreement to give a get, whether express or implied, have provided
two possible remedies.76 Some courts have ordered the recalcitrant party to
give (or receive) a get.77
courts have required the party to appear before a Beit Din.78 This distinction
between these two orders is significant because of the interplay of religious
and civil law. The prohibition against a coerced get ("get meuseh")
invalidates a get that is given or received under duress.79 Thus, in most
instances, coercion used to pressure the husband to give a get will result the
invalidation of the subsequent get.80 Thus, for example, if the civil court
were to order a party to give his wife a get up threat of incarceration, the
get may be invalid as a get meuseh.81 In addition, the order might be construed
as requiring the party to perform a religious act, a direct violation of the
only possible exception to civil enforcement constituting a get meuseh would be
a situation where there is a prior findip kofin by the Beit Din.83 In these
rare instances, the Beit Din apply the doctrine of constructive consent and
permit coercive measures,84 thus an order by the civil court to give a get
might viewed by some Batei Din as a legitimate enforcement of their
judgment." However, under most circumstances, a direct order from a civil
court to execute a get may indicate sufficient duress to invalidate the get.86
If the court requires the party to appear before a Beit Din, or simply suggests
that the party give a get, then a get given subsequent to such a suggestion
will not suffer the halakhic problems of a get meuseh.87
courts88 have refused to either enforce specific provisions or to infer an
agreement to give a get on constitutional grounds, arguing it would excessively
entangle the state in sectarian matters. Such interference would thereby offend
the Establishment Clause or, on a narrower ground, would be beyond the
statutory jurisdiction vested in the court.89
1979, at the behest of the Agudat Israel of America (an umbrella group for
ultra-orthodox causes) the New York Legislature considered the question of the
agunah, and drafted the first New York "get law."90 In 1980, the
legislature passed the bill and Governor Cuomo signed it into law.91 Under this
"get law", a plaintiff in a civil divorce can ask the judge to
require both p ties to sign an affidavit specifying that they have removed all
impediments to religious remarriage by the other party.92 Failure to sign the
affidavit leads a court to withhold the benefits of civil divorce.93 The law
only allows plaintiffs to request the affidavit, leaving defendant agunahs
still without effective remedy. Thus, if the defendant wishes to receive the
get, this law will not help her.
1992, the New York legislature passed a second get law.94 This law allows
judges to take into account religious impediments to remarriage in distributing
property, allowing judges set a higher level of alimony until a get is
executed, subject to reduction afterwards.95 Agudat Israel, sponsors of the
first get law, has argued that financial penalties for non-participation, the
get process pressures the husband to such an extent that they eliminate the
spouse's ability to give a get free of duress.96 This interpretation suggests
that gets given pursuant to the second get law are invalid because they were
compelled.97 Not all groups agree with this reasoning," but the lack of
consensus indicates that legislative solutions have complicated the agunah
issue rather than resolved it. A comprehensive solution to to the agunah
problem acceptable to the entire Jewish community is still needed.
THE PRENUPTIAL AGREEMENT
failures of post-nuptial solutions for agunahs have led traditional Jewish
couples to look toward prenuptial agreements to address potential problems that
may arise in the dissolution of a marriage. The suggested prenuptial agreement,
a civilly enforceable contract, requires either appearance before a Beit Din or
the giving of a get at the time of a separation or civil divorce. Two such
prenuptial agreements are currently used. One is a simple arbitration agreement
requiring parties to appear before a designated Beit Din when the couple no
longer lives together?' Some of these prenuptials permit the Beit Din to issue
fines against a party who fails to appear.100 The second type of prenuptial is
a document, executed by itself or in addition to an arbitration agreement,
indicating if the couple separates without a get, the husband must pay the wife
a stipulated sum, either specified or calculated according to a certain
formula.101 Granting the get would end this financial obligation.
prenuptials create a complicated situation where contractual obligations,
ordinarily enforceable at common law, are formed within the context of a
religious document. The enforcement of these agreements raises several issues.
The propriety of venue must be first addressed: whether secular courts can
oversee the fulfillment of these prenuptial agreements. This concern brings
into the discussion the, Establishment Clause and the right to free exercise of
religion as articulated in the First Amendment of the U.S. Constitution.
Furthermore, even though secular courts can sit for these cases, their
decisions may not be an effective means of enforcement as their halakhic
validity comes into question.
DEVELOPMENT OF THE RELIGIOUS PRENUPTIAL
the earliest version of a prenuptial agreement akin to those in use today was
suggested over 300 years ago by the Nachalat Shiva who incorporated such a
document into his book of standard halakhic forms.112 The Conservative movement
produced the first and simplest prenuptial agreement in this century. In 1954,
under the direction of Rabbi Dr. Saul Lieberman, an arbitration agreement
(hereinafter "Lieberman clause") was incorporated into the
traditional ketubah, stating:
the bride and the bridegroom ... hereby agree to recognize the Beth Din of the
Rabbinical Assembly and the Jewish Theological Seminary of America or its duly
appointed representatives, as having the authority to counsel us in the light
of Jewish tradition which requires husband and wife to give each other complete
love and devotion and to summon either party at the request of the other in
order to enable the party so requesting to live in accordance with the
standards of the Jewish law of marriage throughout his or her lifetime. We
authorize the Beth Din to impose such terms of compensation as it may see fit
for failure to respond to its summons or to carry out its decision that if one
spouse summons the other to a Jewish court, that party agrees to go and to be
bound by the decision of the Beit Din of the Rabbinic Assembly" and the
Jewish Theological Seminary of America. This agreement subjects the
recalcitrant party to fines imposed by the Beit Din in case of refusal to
Orthodox versions of a prenuptial agreement also exist.105 The Orthodox Caucus,
a Modern Orthodox public policy group, help to disseminate one such version
most utilized by the Orthodox community.106 This prenuptial agreement consists
of two documents: The first is a binding arbitration agreement, where a spouse
is required to appear before a specified Beit Din if called by the party.107
The second is an agreement for a stipulated sum of spousal support for every
day after the effective end of the marriage that the husband does not give his
wife a get.108 These agreements are secular documents written in English.109
Because severe financial pressure to give a get can result in a get meuseh,110
the stipulated sum is not a fine for failure to give a get, but rather the sum
is intended for financial support111 and is calculated to be within a
another approach, espouse Professor Irving Breitowitz, the parties execute two
documents before the marriage - a promissory note by the husband and a release
by the wife.113 In the case of separation, the note takes effect and the
husband owes the wife a large sum of money.114 The wife's release is triggered
by the husband's participation in the get process.115 If the husband refuses to
participate, his promissory note is triggered, but the wife's release is not. A
husbands refusal to grant a get gives the wife a legally enforceable promissory
note against the husband.116
ENFORCEABILITY OF THE PRENUPTIAL AGREEMENTS IN CIVIL
VALIDITY OF DOCUMENTS
prenuptial agreement must be a legally binding agreement, which generally has
not been problematic with self-contained prenuptials, because experienced
lawyers usually draft them. The more difficult issue is that the standard
hallmarks of, a contract are often absent in religious prenuptials, as they are
rarely freely negotiated.117 Typically, the rabbi gives the couple a completed
prenuptial agreement.118 Therefore, the legal implications of the prenuptial
often are not fully explained to the couple before the signing.119 While
couples could consult with lawyers, many view the signing of the document as a
ritual and do not seek legal advice. Some rabbis reinforce this ritualistic
sense of the agreement by having the couple sign a prenuptial in Hebrew as well
as in English.120
few cases have addressed the enforceability of religious prenuptials, the New
York Court of Appeals in Avitzur v., Avitzur121 upheld the Lieberman clause.122
In Avitzur, the couple had been married in a Jewish ceremony utilizing a
ketubah containing the Lieberman clause.123 A civil court granted the husband a
divorce on the grounds of cruel and inhumane treatment.124 The wife then wished
to bring the defendant husband before a Beit Din in order to receive a
religious divorce, but he refused to appear.125 The wife argued that the
ketubah was a marriage contract that the husband breached. She sought a
judicial declaration to that effect and specific performance of the requirement
that he appear before a Beit Din.126 The court enforced the Lieberman clause in
the Conservative ketubah. Applying equity principles, it held that a legally
valid agreement should not escape enforceability simply because it appears in a
religious document. The Court stated:
contractual obligation plaintiff seeks to enforce is closely analogous to an
antenuptial agreement to arbitrate a dispute in accordance with the law and
tradition chosen by the parties. There can be little doubt that a duly executed
antenuptial agreement, by which the parties agree in adVance of the marriage to
the resolution of disputes that may arise after its termination, is valid and
have tended to brush over the question of constitutionality in the cases that
have addressed the get issue, in an attempt to avoid an inequitable
solution.128 For instance, in Burns, the court dismissed the constitutional
issues with a few lines, noting that religious faith was not at issue because
the husband would have been willing to give a get for an amount of money.129
However, the First Amendment issues raised by the use of these prenuptial
agreements cannot be so conveniently evaded.
exists between the Establishment Clause,130 which proscribes the state from
advancing religion, and the Free Exercise Clause,131 which prohibits government
restrictions on the practice of religion.132 The Due Process Clause of the
Fourteenth, Amendment makes these guarantees applicable to the states.133 The
Supreme Court analyzes these two prongs of the First Amendment - the
Establishment Clause and the Free Exercise Clause - under different tests.
Thus, state action must not run afoul of either the Establishment or Free
Exercise Clause to be constitutional. The difficulty lies in the application of
Supreme Court tests for these two clauses to state court enforcement of these prenuptial
The Establishment Clause
Lemon v. Kurtzman, 134 the Supreme Court set forth a three-prong test for
determining Establishment Clause violations. Lemon requires that government
actions: (1) have a secular purpose, (2) a primary effect that neither advances
nor inhibits religion, and (3) avoids creating an "excessive government
entanglement with religion" which might erode the principle of government
neutrality in religious decision-making.135
of a religious prenuptial serves secular objectives. While the removal of
barriers to religious remarriage does not seem to be a "secular
purpose," if the get is not given after a civil divorce, the parties may
not remarry, although they are divorced in the eyes of the state. Since one of
the purposes of a civil divorce is to permit the parties to remarry, assuring
their ability to remarry can be construed as serving an important secular
purpose.136 Moreover, the prenuptial, if properly drafted and executed, is a
valid contract to which the parties agreed.137 The state has an obvious
interest in enforcing valid contracts.138 While this contract does involve
religious issues, the law has enforced contracts that are more deeply entangled
in religion. For example, the Illinois Court of Appeals enforced a prenuptial
agreement that required the children of a marriage to be raised as JewS.139
second prong of Lemon requires that the state action have the primary effect of
neither advancing nor inhibiting religion.140 The question of what exactly
constitutes a "primary effect" does not have a clear answer. One
possibility emerging from Establishment Clause cases is that "primary
effect" is synonymous with "direct and immediate" as opposed to
"indirect and attenuated."141 A "direct" effect is one
which is precisely the result that the operation of the statute produces.142
Some argue that the prenuptial advances religion by compelling participation in
a religious "ceremony" in which one party does not want to
partake.143 Although a religious element exists in the enforcing of the
prenuptial, the more immediate and direct effects include appearing before a
specific tribunal or providing financial support to an ex-spouse. Additionally,
the court's enforcement of a contract would have the effect of giving agunahs
the option of remarriage, 'which is as much of a secular act as a religious
one.144 Thus, enforcement of these contracts does not directly advance
have interpreted the third prong of the Lemon test, the excessive entanglement
prong, as a ban on extensive government monitoring of religious activity,145 or
alternatively, as a prohibition on courts deciding religious questions.146 A
binding arbitration prenuptial involves the fewest entanglement problems if it
requires arbitration before an institutional Beit Din. If the prenuptial
agreement specifies a standing Beit Din, the prenuptial can simply function
like a binding arbitration agreement subject to judicial enforcement.147 When a
Beit Din is not specified, the prenuptial can potentially enmesh the secular
court in the selection of a particular religious tribunal, which might violate
the entanglement prong.148
Establishment Clause may be implicated in regard to monetary support payments
if the parties disagree over the religious sufficiency of the get or
participation in the get process.'4' In most cases, however, the enforcement of
the monetary support, agreement is not problematic; the court only determines
if al spouse has been given a sufficient end to the marriage.149 Such an
inquiry will rarely result in the government having to make deep determinations
of religious policy.151 To pass the entanglement prong of Lemon, both the
drafters of the prenuptial agreement and the judges involved need to tread
Alternatives to the Lemon Test
O'Connor has suggested an alternative standard to the Lemon test.152 Her
"endorsement test" focuses on the issue whether the government act
tends to convey a message of endorsement or disapproval to religion.152 In
Allegheny County v. ACLU,154 Justice Blackmun, writing for the Court, decided
that the placing of a creche on the staircase of the Allegheny County
courthouse violated the Establishment Clause because "the [Establishment]
Clause ... prohibits government from appearing to take a position on questions
of religious belief."155 In Lee v. Weismann," the Court held that a
clergyman reciting an invocation and benediction at a public high school graduation
violated the Establishment Clause because the government's involvement with
religion was pervasive.157 It is "beyond dispute that at a minimum, the
Constitution guarantees that government may not coerce anyone to support or
participate in religion or its exercise."158
could be construed as judicial coercion of participation in religion, in
violation of Lee. Such a conclusion would be tenuous, however, as courts would
be simply enforcing an agreement to which the parties themselves have freely
bargained. They are not required to take a position on religious
questions."' This position has the support of many scholars, who have
argued that granting a get is not a "religious" act, but rather a
contractual one." Therefore, even if there is judicial coercion to appear
before a Beit Din or to grant a get, the required act is secular and thus,
outside the scope of the Establishment Clause."
binding arbitration agreement has greater difficulty in not violating the
Establishment Clause. Even if the agreement specifies a standing Beit Din,
under Lynch and Lee, sending the parties to a religious court may be considered
endorsement or coercion. If the prenuptial specifies a zabla situation162 that
could involve the court in determining who should sit on the Beit Din, it might
implicate Allegheny County by requiring the court to take a position on
religious beliefs.163 However, the court could chose to ignore the religious
nature of the Beit Din and treat it simply as an arbitration panel.164
recent Supreme Court criticism of Lemon, it has failed to elucidate a single
standard for Establishment cases.165 Thus, one cannot conclusively determine
the constitutionality of secular court enforcement of prenuptial agreements.
The Free Exercise Clause
Free Exercise Clause of the First Amendment, in conjunction with the Fourteenth
Amendment, forbids the government from imposing burdens on, or giving benefits
to, people because of their religious beliefs.166 Again, the Supreme Court has
failed to articulate a single test for Free Exercise questions.167
Sherbert v. Verner,168 the Court applied strict scrutiny to analyze the Free
Exercise issue.169 It articulated a two-prong, balancing test to determine if a
government act violated this part of the First Amendment. The government bears
the burden of showing a compelling interest in its act and proof that its act
is the least restrictive means to active its goal.170 As a prerequisite for
this test, the Court required a showing of interference with a party's sincere
religious belief.171 The Supreme Court, in Wisconsin v. Yoder,172 enumerated
factors to determine whether a particular religious belief is "sincerely
held." These included: the length of time the belief has been held; the
importance of the belief to everyday practice; the nature of the belief, either
personal or communal; and the origins of the belief.173
application of a Free Exercise analysis to the prenuptial agreement rests on
whether requiring the giving of a get or the submission of a party to
ecclesiastical court arbitration of a get, constitutes a burden on a
sincerely-held, religious belief. Courts have found that the giving of a get is
not a "religious act," since it does not require the profession of a
particular faith."' Also, experts have testified that the body of halakha
can be divided into two distinct categories: laws governing the relationship
between a person and God and laws governing relations between persons.175
David Bleich, professor of Jewish law at Cardozo Law School, has also argued
that the get is secular. First, he states that a get is an institution that
"gains effect solely through the actions of the parties themselves,"
and cancels - by mutual consent - a contractual relationship. Furthermore,
Bleich argues that a get is not a religious act because it does not involve a
"confession of faith." A court of Jewish law would see its execution
as routine, as would be a rescission of contract, or the execution of a
promissory note by a state court."' Many civil courts have accepted this
premise that a get is not a religious act177- in one case, after hearing the
expert testimony of four rabbis.178 In Koepell,179 for example, the court held
that the appearance of the husband before a rabbinic tribunal to "answer
questions and give evidence needed by them to make a decision is not a
profession of faith."180 Other courts have accepted similar arguments.181
conclusion, however, has not been universally accepted, as a profession of
faith is not necessary for all religious acts.182 Though Jewish law can be
divided into two categories, interpersonal and theological, both categories are
considered divine in origin, and performance of either is a religious
obligation, a positive religious act.183 "Judaic law is only secular in
the very limited sense that it deals with many of the subjects that are
commonly dealt with under non-religious law such as contracts, tort and
agency."184 Thus, the giving of a get can be construed as demonstrating a
belief in the authority of Jewish law above civil law, as well as a belief in
the rabbinic system. Such a view may be valid, but prior case law suggests that
courts have been more likely to find that the refusal to give or receive a get
is not a religious act.185
makes the Free Exercise analysis particularly difficult when applied to the
issue of enforcement of the prenuptial binding arbitration or support agreement
is determining which individual's religious right is being preserved. On one
side, the recalcitrant party could claim the right not to be compelled to
submit to a particular religious ceremony. Alternatively, the state's refusal
to enforce a valid prenuptial contract may violate the Free Exercise rights of
the party who wishes to remarry, and "to exclude from contractual
agreement areas that impinge upon religious practice is to interfere with the
free exercise of rehgion."186
articulated several rationales for requiring the recalcitrant party to
participate in the divorce, believing the impact on, him to be slight.187
First, they have held found that if the recalcitrant party freely participated
in the ketubah ceremony, it is not, "such a violation" of his Free
Exercise rights to force him to appear before a religious tribunal.188 Also,
courts have not accepted the argument that enforcement violated the
recalcitrant party's religious beliefs in cases where there is evidence that he
would give the get for monetary concessions.189 Finally, courts have found that
participation in the get process is not a religious act.190 The last two
responses, finding that the parties were insincere or that the get is not a
religious act, are suspect because they require court inquiry into the nature
of the religious belief and act.
Supreme Court first articulated the doctrine of religious accommodation in
Zorach v. Clauson.191 "Reasonable accommodation" allows the
government to make exceptions for those whose religious beliefs would be
violated by a particular government action:192
nation is understood not as secular, but as pluralistic. Religion is under no
special disability in public life; indeed, it is at least as protected and
encouraged as any other form of belief - and in some ways, more so. The idea of
an accommodation of religion, which is foreign to the religion clauses, based
on strict neutrality interpretation, follows naturally from the pluralist
conflict between the prohibition of the Establishment Clause and the necessity,
or at least permissibility, of reasonable accommodation has never been
Sherbert and Yoder decisions were two rare cases where the government granted a
religious-based exemption from a law of general applicability.195 These cases
precipitated Employment Division v. Smith,196 where the Court seemed to hold
that accommodation in the face of a generally applicable law is not usually
required. The Court in Smith suggested that a legislative, accommodation of
religion might be possible, but is not constitutionally mandated.197 It held
that the government is prohibited from regulating religious beliefs, including
using religious doctrine as a basis for judicial decisions.198 Furthermore, the
Court found the Free Exercise Clause invalidates a law, though facially
neutral, if it can be shown that the purpose of the law is to burden religious
divides the reconciliation of reasonable accommodation into three theoretical
frameworks.200 At one extreme is a position of strict neutrality, in which it
is constitutionally impermissible for a court to grant religious exemption from
neutral legislation.201 At the other is the position that the government may
remove barriers or costs of religion when such accommodations are
"reasonable." A third option takes an intermediate position in
allowing the state, acting under the Free Exercise Clause, to remove those
barriers that result from governmental action and retain other barriers that
arise under Establishment Clause.202 This type of accommodation is deemed
"reasonable" because in situations where strict application of the
Free Exercise Clause would result in hardship, the courts will remove it to the
extent permissible by the Establishment Clause.203
this last understanding of accommodation, certain judicial actions - even if
they enforce an agreement to appear before a rabbinic court - should not
constitute compelled specific performance of a religious obligation. The
judicial question involves the removal of barriers resulting from governmental
action and would result in severe hardship to the spouse who wishes the divorce
if the agreement to appear before rabbinic court is not enforced. This
reasonable accommodation principle, however, would also prevent the courts from
enforcing specific performance of a religious obligation or discipline.204 Such
action would excessively entangle the judiciary in religious matters.
even if the granting of a get is found to be a "religious act" and
judicial involvement unconstitutional, a court could be able to enforce a
prenuptial agreement to effect a degree of relief for the party that wishes a
get under the theory of reasonable accommodation.
REMEDY IN TORT
means to award relief to an agunah through the civil courts may be through
bringing suit against the recalcitrant party for intentional infliction of
emotional distress.205 Such a claim arises when "by extreme and outrageous
conduct [the tortfeasor] intentionally or recklessly causes severe emotional
distress to another."206 The action must be "so outrageous in
character and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized
community."207 Conduct is "outrageous" if the tortfeasor knows
that a particular act will unusually distress the plaintiff.208
have been reluctant to apply this tort in general, and to spousal relationships
in particular, for fear of abuse of the court system.209 Since agunah cases are
relatively infrequent as compared with other intra-spousal disputes, permitting
a suit based on emotional distress of the agunah would not unduly burden the
courts. Additionally, the agunah's predicament is a prototypical emotional
distress cause of action - namely, a case where one party knowingly exploits the
sensitivities of the other party.210 If an agunah's emotional distress claim is
successful, then the court only can provide the remedy of a financial payment,
and not specific performance.211 The agunah can then use the court-ordered
remedy as leverage against her spouse. The damage award may therefore have the
same monetary effect as a prenuptial support agreement.212
a tort action would not violate the Supreme Court's Establishment Clause test
as defined in Lemon.213 The claim serves the secular purpose of punishing
tortfeasors and it neither advances nor inhibits religion. Furthermore, it does
not involve excessive entanglement because the only factual determinations,
implicating religion are that the wife does not have a get and that she will not
remarry without one.
the Yoder standard, violation of the Free Exercise Clause turns on whether the
giving of a get constitutes a "sincerely held belief."214 Since
courts have held that the get is a secular agreement,215 they would probably
find that the giving of a get fails the Yoder standard. Even under the Smith
standard,216 courts would hear this action because it does not involve
accommodation. Thus, tort law may provide an effective avenue for women who did
not sign a prenuptial agreement.
HALAKHIC VALIDITY OF THE PRENUPTIAL AGREEMENT
question of halakhic validity further complicates the drafting of a
constitutional and enforceable prenuptial agreement. A prenuptial agreement
that results in a get given in exchange for debt forgiveness by a civil court
decision, or out of fear of further litigation, will probably be considered a
compelled divorce, and thus invalid under Jewish law.217
are two primary issues with regard to the halakhic validity of a prenuptial
agreement. The first is the problem of the get meuseh, or coerced get.218 The
court in Margulies v. Margulies, for instance, noted that jailing the husband
for contempt for his refusal to give a get, would not be effective because any
get subsequently given would be coerced and therefore invalid?" The second
principle relates to a definition of "freely given." This is the
issue of the mens rea (known in Jewish law as asmachta) of the parties at the
time the prenuptial agreement was signed.
Jewish law, for a contract to be valid an individual must have fully
anticipated and accepted all contingencies. This invalidates contractual
penalties in most cases because it is expected that a party would not enter
into a contract assuming non-performance.220 Thus, the contractual penalties in
most cases of non-performance are invalid, because the expectation is that the
party did not enter into the contract with the assumption that he would not
perform his part.221 If the party had truly expected the contingency to occur,
he would not have accepted the penalties.222 The clause, then, was not
"freely" agreed to retroactively voiding the contract. This asmachta
principle assumes that an individual cannot contract into accepting a penalty
in the case for refusing to participate in the get process because the
individual would not believe that such a situation would arise.223 Thus, any
prenuptial that contains monetary damages must make clear that the money is for
something other than a penalty for non-compliance, i.e., for spousal support.224
agreements that avoid monetary awards, such as a binding arbitration, often do
not offer much to compel the recalcitrant party to participate in the get
process. Thus, while a court can enforce a binding arbitration agreement and
can compel the parties to appear before a Beit Din, there is little that the
Beit Din can do to compel the get itself.225 If the Beit Din instructs the
husband to give his wife a divorce, then (constitutional issues aside) the
order is enforceable in civil court since it is the finding of a valid
arbitration panel.226 However, a get given under penalty of punishment by the
civil court may be void as a get meuseh. An enforceable agreement that imposes
monetary payments for refusal to give the get can avoid these halakhic and
constitutional problems while giving real enforceability to the agreement.
for the problem of asmachta, the monetary amount must not be a penalty for
non-performance, but rather an amount related to something else.227 To avoid
the problem of get meuseh, the monetary amount must be low enough to allow the
husband to make a reasonable choice,228 rather than an amount which is so
onerous as to force him to give the get. Thus, under civil law, the
recalcitrant party has three options: payment, granting the get, or
imprisonment. If he is jailed for failing to pay, he can then chose to pay or
give the get. Because payments exists as a reasonable alternative, giving a get
is not the only option available to him and the get is not considered coerced. However,
where payment is well beyond the means of the individual, it is I no longer
reasonable, and a get given as a result would be invalid due to duress.229
the issues of the get meuseh and asmachta are the most critical to the halakhic
validity of the prenuptial, the practicality of the prenuptial as a real-life
solution has halakhic implications as well. If the arbitration agreement allows
all divorce settlement issues, rather than those involving the get, to be
referred to the Beit Din, the Beit Din can choose to apply Jewish law of
spousal distribution instead of state law.230 Under Jewish law, a husband has
an obligation to support his wife231 in exchange for the husband's support, the
wife gives her earnings to the husband.232
are no provisions for on-going support after divorce, with the exception of the
money allocated in the ketubah.233 Beit Din would normally assign more than
simply the ketubah to the woman. However, for a woman to receive what she would
at civil law, the prenuptial agreements must address the reality of halakhic
distribution.234 The simplest solution is for the prenuptial to state
explicitly that the Beit Din will decide issues of property distribution
according to the laws of a particular state.235 Alternatively,
the agreement could insert a clause whereby the husband renounces his right to
his wife's earnings from the time that they are no longer living together. A
carefully drafted prenuptial agreement can thus both be halakhic and put
parties in a fair financial position.
agreements seem to be the best means to prevent future agunot within the Jewish
community. They initiate the first crucial step towards getting the parties
before a Beit Din. The prenuptial allows the subject of the get to be dealt
with prospectively rather than retroactively. As a result, recourse will be
available with a certain degree of certainty. Additionally, the prenuptial
agreement makes couples address these issues when they are committed to each
other, and not later, when there may be discord.
advantages of the prenuptial, however, are not guaranteed. Civil court judges
are often wary of alternate forums, especially ecclesiastical tribunals that
are vulnerable to charges of corruption .236 As a result, many civil court
judges would prefer to adjudicate the prenuptial agreement in their own court.
effectiveness of the prenuptial also depends on the support of the rabbis
because they must explain to couples the importance of entering into such an
agreement. In addition, couples must recognize the civil law nature of the
document. While only with widespread use can prenuptial agreements function as
an effective solution, they should be implemented wherever rabbinic and
community leaders will support them, in the hope that the signing of a version
of the agreement will eventually become an accepted and established norm
throughout the Jewish community.
A: ARBITRATION AGREEMENT BETWEEN HUSBAND AND WIFE
Herring and Kenneth Auman
Prenuptial Agreement 49 (1996)
of Agreement made this __________ day of __________ 57 ___ which is the
__________ day of __________ 199 ___ in the City of __________.
of __________, between __________, the husband-to-be who presently lives at
__________ and the wife-to-be __________ who presently lives at __________. The
parties are shortly to be married.
Should a dispute arise between the parties after they are married, Heaven
forbid, so that they do not live together as husband and wife, they agree to
refer their marital dispute to an arbitration panel, namely the Beit Din of
__________ for a binding decision. Each of the parties agrees to appear in
person before the Beit Din at the demand of the other party.
The decision of the parties, or a majority of them, shall be fully enforceable
in any court of competent jurisdiction.
(a) The parties agree that the Beit Din is authorized to decide all issues
related to a get (Jewish divorce) as well as any issues arising from premarital
agreements (e.g. ketubah, tenaim) entered into by the husband and wife.
following three clauses (b,c,d) are optional, each to be separately included or
excluded by mutual consent, when signing this agreement.]
The parties agree that the Beit Din is authorized to decide any other monetary
disputes that might arise between them.
The parties agree that the Beit Din is authorized to decide issues of child
support, visitation and custody (if both parties consent to the inclusion of
this provision in the arbitration at the time that the arbitration itself
In deciding disputes pursuant to paragraph III(b) the parties agree that the
Beit Din shall apply the equitable distribution law of the State/Provision of ,
as interpreted as of the date of this agreement, to any property disputes which
may arise between them, the division of their property and questions of
support. Notwithstanding any other provisions of the equitable distribution
law, the Beit Din may take into account the respective responsibilities of the
parties for the end of the marriage, as an additional, but not exclusive
factor, in determining the distribution of marital property and support
Failure of either party to perform his or her obligations under this agreement
shall make that party liable for all costs awarded by either a Beit Din or a
court of competent jurisdiction including reasonable attorney's fees, incurred
by one side in order to obtain the other party's performance of terms of this
(a) In the event any of the Beit Din members are unwilling or unable to serve,
then their successors shall serve in their place. If there are no successors,
the parties will at the time of the arbitration choose a mutually acceptable
Beit Din. If no such Bei Din can be agreed upon, the parties shall each choose
one member of the Beit Din and the two members selected in this way shall
choose the third member. The decision of the Beit Din shall be made in
accordance with Jewish law (halakha) and/or the general principles of
arbitration and equity (pesharah) customarily employed by rabbinic tribunals.
At any time, should there be a division of opinion among the members of the
Beit Din, the decision of the majority of the members of the Beit Din shall be
the decision of the Beit Din. Should any of the members of the Beit Din remain
in doubt as to the proper decision, resign, withdraw, or refuse or become
unable to perform duties, the remaining members shall render a decision. Their
decision shall be that of the Beit Din for the purpose of this agreement.
In the event of the failure of either party to appear before upon reasonable
notice, the Beit Din may issue its decision despite the defaulting party's
failure to appear.
This agreement may be signed in one or more copies each one of which shall be
considered an original.
This agreement constitutes a fully enforceable arbitration agreement.
The parties acknowledge that each of them have been given the opportunity prior
to signing this agreement to consult with their own rabbinic advisor and legal
witness of all of the above, the Bride and Groom have entered into this
agreement in the City of __________, State/Province of __________.
B: HUSBAND'S ASSUMPTION OF OBLIGATION
Herring and Kenneth Auman
Prenuptial Agreement 45 (1996)
I, the undersigned __________ husband-to-be, hereby obligate myself to support
my wife-to-be __________ in the manner of Jewish husbands who feed and support
their wives loyally.
God forbid, we do not continue domestic residence together for whatever reason,
then I now (me'achshav) obligate myself to pay her $ ___ per day, indexed
annually to the Consumer Price Index for all Urban Consumers (CPI-U) as
published by the US Department of Labor, Bureau of Labor Statistics, beginning
as of December 31st following the date of our marriage, for food and support
(parnasah) from the day we no longer continue domestic residence together and
for the duration of our Jewish marriage, which is payable each week, during the
time due, under any circumstances, even if she has another source of income or
earnings. Furthermore, I waive my halakhic rights to my wife's earning for the
period she is entitled to the above the stipulated sum. However this obligation
(to provide food and support, parnasah) shall terminate if my wife refused to
appear upon due notice before the Beit Din of __________ or any other Beit Din
specified in writing by that Beit Din before proceedings commence, for purpose
of a hearing concerning any outstanding disputes between us, or in the event
that she fails to abide by the decision or recommendation of such Beit Din.
I execute this document as an inducement to the marriage between myself and my
wife-to-be. The obligation and conditions contained herein are executed
according to all legal and halahkic requirements. I acknowledge that I have
effected the above obligation by means of a kinyan (formal Jewish transaction)
in an esteemed (chashuv) Beit Din.
I have been given the opportunity prior to executing this document, of
consulting with a rabbinic advisor and a legal advisor.
I, the undersigned wife, acknowledge the acceptance of this obligation by my
husband-to-be and in partial reliance on it agree to enter into our forthcoming
Articles Ed., Colum. J. L. & Soc. Probs., 1998-1999. The author wishes to
acknowledge the, editorial assistance .1 Lauren Freeman-Bosworth, Mihui Pak,
Maryanne Woo, Jason Criss, and Leslie Wells. The author would also like to
thank Rabbi Jeffrey Kobrin for his continuous assistance with this article and
This article utilizes the term agunah (plural: agunot) because it has come to
be the accepted term to refer to women in this position. However, it is
important to point out that most of the women whom this title seeks to address
are not technically agunot. The classic case of the agunah, as discussed in the
Talmud, is of a woman whose husband has disappeared, for example at sea, or is
missing in action at a battle, and it is unknown as to whether he is alive or
dead. Without proof of his death, the woman cannot remarry. She must remain in
a state of limbo, "chained" to a man whose whereabouts (or death) are
unknown. See Babylonian Talmud: Yebamot at 12a. This differs from the case of
divorce where a more appropriate term would be "mesurav Beit Din,"
literally, one who has flaunted the courfs authority. See Irving Breitowitz,
Between Civil and Religious Law: The Plight of the Agunah in Modern Society 15
Pamela Manson, Courts Aid Sought for Jewish Divorce, The Ariz. Rep., Jan. 3,
1994, at B1.
See Irving Breitowitz, Between Civil and Religious Law: The Plight of the
Agunah in Modern Society, 1-2 (1993).
The Biblical source for Jewish divorce is found in Deuteronomy 24:1-4
("When a man takes a wife and marries her, and it comes to pass that she
find no favor in his eyes, because he has found something scandalous in her,
then let him write her a bill of divorcement and give it in her hand, and send
her away out of his house."). See also Babylonian Talmud: Kiddushin at 2a
("She is freed [from marriage] by obtaining a get or by her husbands
this point, a brief introduction to the Jewish legal literature is appropriate.
For observant Jews, the supreme source of law is the Pentatuch (the Five Books
of Moses) which contain laws relating to religious, civil, and criminal issues.
Along with these written laws, an oral tradition exists which supplements and
explains the written law. At the end of the third century CE, the oral law was
compiled into a written code by Rabbi Judah the Nasi called the Mishnah. The
Mishnah served as an outline to the corpus of the oral tradition. Centuries of
discussion and exegesis of the Mishnah were incorporated into the Talmud in the
seventh century. There are two versions of the Talmud, named after the
countries where they were redacted, the Palestinian and the Babylonian. The
Talmud is not an organized code of black letter law, but a description and
discussion of various opinions, often without arriving at a definitive
conclusion. There were several attempts to codify the Talmud and rabbinic
discussion into a code of definitive legal principles and rulings. Two of these
codes which received near-universal acceptance, are noted to in this article:
the Mishnah Torah, by Maimonides (12th century), and the Shulchan Aruch, by
Rabbi Yosef Caro (16th century).
See Deuteronomy 24:1-4 for Jewish divorce. See also Babylonian Talmud:
Kiddushin at 2a. For a history of civil divorce, see Homer H. Clark, The Law of
Domestic Relations in America §15.8 at 110 (2d ed. 1988) ("The final
[divorce] decree ... grant(s) the dissolution of the marriage to one spouse or
another, or in states permitting such a decree, to both spouses.").
See Clark, supra note 5, at § 15.1 at 72-73 ("Marriage occupies a special
position in our society such that it can only be dissolved by a court
See Babylonian Talmud, Kiddushin at 2a (discussing the occurrence of a marriage
established by the parties).
See Breitowitz, supra note 3, at 5-6.
See 5 Encyclopedia Talmudit "Get" at 568 (1973).
See id. A get can refer to any type of legal document. Its common usage is in
reference to divorce documents and that connotation is assumed wherever the
term is found unless otherwise indicated. See Tosafis, 2a, SN. Hamavi;
Babylonian Talmud, Trudglat Gitten. A get states that 1) the husband divorces
the wife, and thus no longer has any rights in anything belonging to her; 2) a
relationship no longer exists between the two of them; 3) the purpose of it is
for the wife to receive a divorce; and 4) the transfer of it from the husband
to the wife effectuates the divorce. 5 Encyclopedia Talmudit "Get" at
See 5 Encyclopedia Talmudit "Get" at 569 (1973). See also infra
See 5 Encyclopedia Talmudit "Get" at 568 (1973).
The Conservative and Orthodox movements do not permit the marrying of an
individual who does not have a get from a previous marriage. However, the
Central Council of American Rabbis (the Rabbinic arm of the Reform movement)
has stated that no get is needed in order to remarry. There is no official
position on performing a new marriage for a person who has refused to give his
previous spouse a get. Thus, the ethical decision of whether to marry these
individuals in a Reform ceremony is left to the individual rabbis. However,
some Reform rabbis, especially those of the younger generations, have begun to
focus more on this issue, and may insist on a get from the first ceremony.
Certainly, it is disingenuous to assume, as much of the literature does, that
most Reform rabbis will remarry a man whom they know has maliciously refused to
grant his wife a get. The Reconstructionist movement also permits remarriage
without a get. Conversation with Rabbi Jennifer Roion (Mar. 17, 1998).
See Breitowitz, supra note 3 at 2 n.4. Although either party can refuse to
participate in the get process, in an overwhelming number of cases, it is the
husband who refuses. While not wishing to minimize the pain of those husbands
whose wives refuse to accept a get, this article will refer to the recalcitrant
spouse as the husband unless otherwise specified.
See Mica Schnieder, World Jewish Congress Study: Jews in Israel Will Surpass U.
S. Community, Jewish Telegraph Agency, Sept. 18, 1998, at 5. See also Judith
Forman, Pure Devotion: Elie Shochet and Abby Siegel Built a Renewed Faith and
Unbreakable Bond Through Orthodox Judaism, The Baltimore Sun, Sept. 5, 1998, at
1F. While the "current divorce rate [is] about 40 percent for United States
first marriages ... the rate is between three percent and four percent for
Orthodox Jews.' Id. However, the divorce rate is rising.
See Nat Hentoff, Who Will Rescue the Jewish Women Chained in Limbo?, The
Village Voice, Sept. 13, 1983, at 6 (stating that there are some 15,000
agunot). But cf. Breitowitz, supra note 3, at 2 n.4. The controversystems for a
difference of opinion as to whom should be considered an agunah (i.e. every
woman who has a civil divorce but no get, any woman who has appealed to a Beit
Din for a get, only woman in whose cases the Beit Din has issued a seruv
against their husbands) as well as the lack of a centralized organization that
can accurately track this phenomenon.
See Breitowitz, supra note 3, at 1-2.
See infra Section III.
See Breitowitz, supra note 3, at 59. There are organizations that have
mediation counselors who attempt to help a couple arrive at an agreement to
reach a get. See id.
For example, a group of Canadian women refused to have relations with their,
husbands until a husband in the community gave his wife a get. The Agunah
Problem, The Jewish Press, Oct. 26, 1979, at M41.
Batei Din is the plural of Beit Din (also spelled as Beth Din), meaning local
Jewish court. See 3 Encyclopedia Talmudit, "Beit Din" 140-73 (1973).
The halakha is the Jewish legal system. Jewish law is composed of a single body
of law dealing with civil, criminal, and religious matters. See Menachern Elon,
The Principles of Jewish Law 5 (1974). The system has its own procedural and
substantive rules derived from the Pentateuch and the interpretation of the
Pentateuch as codified in the Talmud. Id. at 19-20. See also Babylonian Talmud:
See Nadine Brozan, Annulling a Tradition, Rabbis Stir Furor by Helping 'Chained
Women'Leave Their Husbands, N.Y. Times, Aug. 13, 1998, at B1. The Beit Din
Tzedek LBaayot Agunot, or the Rackman Beit Din, as it has become known, is
mired in controversy. Rabbi Emanuel Rackman has attempted to resolve some cases
of agunah through a process called hafkaat kiddushin, which annuls original
marriage and does not require the appearance of the recalcitrant spouse. This
process has been met with much criticism, in part because it does not have a
long-standing continuous tradition. Id. See also Eric Greenberg, Court Strives
to Inform Critics, The Jewish Week, Aug. 28, 1998, at 9.
There are several versions of this document. See Appendix for sample versions
of a prenuptial agreement. This article will discuss the idea of the prenuptial
agreement in general, focusing on specific provisions where necessary.
See Breitowitz, supra note 3, at 6. See also Deuteronomy, 24:1-4; Ram'~ Mishnah
Torah, Hilchot Gerushin 1.2 ("He can only divorce his wife
See Rema, glosses on Shulchan Aruch: Even HaEzer 119:6 ("But Rab~ Gershom
excommunicated those who would divorce a woman against her will.").
is binding on all Ashkenazic Jews. There are two primary Jewish traditi
Ashkenazic and Sephardic. The Ashkenazic Jews are those of European descent, W
Sephardic Jews are of Middle Eastern, African, Spanish and Portuguese descent.
i historical developments focused on in this article relate to the Ashkenazic
communiq, the American Jewish community is overwhelmingly of Ashkenazic Origin.
See Farnsworth on Contracts §4.19 at 272 (3d ed. 1992).
Riegenfeld v. Jacobson, 5 Selected Judgments of the Supreme Court of Israel'
Rambam, Mishnah Torah, Hilchot Gerushin 1: 1 (describing the process of a&
including the requirement of witnesses). Rambam is the Hebrew acronym for Raf
Moses Ben Maimon, commonly known as Maimonides. Witnesses for a get must
acceptable under Jewish law which requires them to be: male, over the age of
13, of good moral character, observant of Jewish laws, and unrelated to either
husband or wife or to the other witness. See Elon, supra note 23, at 606. See
also Shulchan Aruch: Even HaEzer 154.21 (stating that in order to get a divorce
the husband is required to have a scribe and two witnesses). While the presence
of a rabbi is not required at the signing of a get because it is an
interpersonal contract, a rabbi or some other person well-versed in Jewish law
commonly performs the ceremony because of the law's intricacies and the
importance of ensuring a valid get. See Breitowitz, supra note 3, at 6. For the
requirement of witnesses during the wedding ceremony, see Rambam, Mishnah
Torah, Hilchot Ishut, 3:1-5, 4:6.
approach is in contrast to that of most secular systems, in which the state
makes the determination of marital status, and one cannot get married or
divorced without the approval of the state. See Clark, supra note 5, § 2.1 at
73 ("Underlying all aspects of the definition of marriage was the
principle, frequently announced by the courts, that the method of contracting
marriage and the incidents of the relationship were the province of the law and
were not within the control of the parties."). Id.
See Elon, supra note 23, at 415.
See id. at 19-22.
See id. at 415. See also Shulchan Aruch, Even HaEzer 154 (describing the cases
in which the parties should divorce, and cases in which the woman receives or
forfeits the monies stipulated in the ketubah).
Grounds for divorce include a wide range of reasons such as if his wife no
longer pleases him. While the School of Shamai holds that a husband should not
divorce his wife unless she has committed adultery, the School of Hillel
permits divorce for something as trivial as burning soup. See Babylonian Talmud:
Gittin 90a-b. Some believe that adultery is the only morally proper reason for
divorcing one's wife. See Shulchan Aruch, Even HaEzer 119:3.
The Talmud stated certain categories of facts that allowed women to petition
the court for divorce. See Babylonian Talmud: Ketubot 77a. See also Shulchan
Aruch Even HaEzer 154.
See Babylonian Talmud: Ketubot 77a. Some of these categories allowed th~ woman
to divorce with the financial settlement stipulated in the ketubah, but in som
instances, she forfeited her financial claim. See id,
See J. David Bleich, Jewish Divorce: Judicial Misconceptions and Possible Means
of Enforcement, 16 Conn. L. Rev. 201 (1984).
See Shulchan Aruch, Even HaEzer 154:21. Some of the categories are cleat',
kofin or yotze, others depend on the particular facts. For example, a loathsome
diseasei one of kofin, whereas the husban&s refusal to co-habitate with his
wife was one of YOO See Babylonian Talmud, Ketubot 77a. For an in-depth
discussion of this issue, se Breitowitz, supra note 3, at 42-43.
See id. at 154:3 ("He who says: I will not feed and I will not support ...
is forced divorce immediately, and so too he who refuses to have relations with
See Shulchan Aruch, Even HaEzer, 154:10 ("(If] he married a woman and 11A
with her ten years and she did not give birth, he should divree her and pay ho
See id. ("They may decree upon all of Israel not to extend any favors to
him conduct any business dealings with him, nor circumcise his sons, nor bury
them until h,! divorces..
See Rambam, Mishnah Torah, Hilchot Gerushin 2:20 ("A Beit Din in every
tin, and every place can beat him [the recalcitrant husband] until he says
"I want to" lili the get] and the get is written and it is
kosher."). See also, Shulchan Aruch, Even Hatm 154:21.
See Rambam, Mishnah Torah, Hilchot Gerushin 2:20.
See Rema, glosses on Shulchan Aruch: Even HaEzer 154:21 ("It is fitting to
be stringent not to force (giving the get) so that it should not be a coerced
get."). For a discussion of whether this distinction is valid, see
Breitowitz, supra note 3, at 35 n.101.
Even though Jewish law has authority to govern civil law matters as well, in
countries such as the United States, where the courts are reliable and fair,
most observant Jews, even in disputes with other observant Jews, will refer
civil matters to secular courts instead of a Beit Din. See Isaac Herzog, The
Main Institutions of Jewish Law 28 (1980) (noting the difference between
secular and Jewish law and describing the various forces which led to the
decline of Jewish courts).
Breitowitz, supra note 3, at 164. For example, in some jurisdiction$, even when
Jews were emancipated, religious marriages and divorces continued to be recognized
by the government. One example was in England, where it was only in 1866 that
the state took control of marriages and divorces from religious courts. Until
that point, the government recognized marriages and divorces performed by
ecclesiastical officials or courts. See id.
See Elon, supra note 23, at 19.
See Breitowitz, supra note 3, at 15.
See id. This method of selecting judges is a principle known as zabla. See i
See id. at 16. These courts work on the European inquisitional model, lawyers
are permitted. See id.
See id. at 17 n.50.
See id. at 17.
See id. A seruv could result in some degree of communal ostracizing of
individual. See id.
See Breitowitz, supra note 3, at 14-15.
Leanne Waxman, Orthodox Jewish Women Trapped in Bad Marriages, Seattle Times,
Dec. 17, 1995, at A16.
See id. Study done by Barry Kosmin, research director of the Council of Jewish
Federation, in 1990. At the time of the study there were three to four million
adult Jews in the United States. See id.
Abigail K. Leichman, When Marriages End Some Jewish Women are Left in Limbo:
Breaking Up is Hard to Do, The Record, July 17, 1996, at R1.
Waxman, supra note 61, at A16.
Deena Yellin, Get Breaks Orthodox Woman's Marital Chains, Newsday, 9, 1997 at
See Breitowitz, supra note 3, at 164 n.474.
See Shulchan Aruch Even HaEzer 4:1 Any children born from a subseq marriage
without a prior get are considered mamzerim - children of adultq according to
Jewish law. The children themselves bear this stigma, and may only m~, other
mamzerim or converts. See generally Shulchan Aruch, Even HaEzer 4:13.
See Waxstein v. Waxstein, 395 N.Y.S.2d 877 (Sup. Ct. 1976), affirmed 57 863,
394 N.Y.S. 2d 253 (App. Div. 1977).
See Koepell v. Koepell, 138 N.Y.S. 2d 366, 373 (Sup. Ct. 1954) (requiring the
husband to give a get in such an instance would simply be "requiring the
defendant to do what he voluntarily agreed to do."). See also Rubin v.
Rubin, 348 N.Y.S.2d 61 (Fam. Ct. 1973). In Rubin, the wife refused to accept
the get, which was a condition for her receiving alimony. The court held that
where one party to a get declines to perform, the court will refuse any relief
to the defaulting party until that party complies. Rubin at 68.
Rubin, 348 N.Y.S.2d at 68.
Koepell, 138 N.Y.S.2d at 366.
395 N.Y.S.2d 877 (Sup. Ct. 1976).
See id. at 881.
See Stern v. Stern, 5 Family Law Reporter (BNA) 2810 (N.Y. Sup.Ct. 1979); In re
Goldman 554 N.E.3d 1016 (111. App. Ct. 1990) (holding that because the couple
utilized an Orthodox ketubah, even though they were married in a
Reconstructionist ceremony, the ketubah required the husband to give a get to
end the marriage). See also Minkin v. Minkin, 434 A.2d 665 (N.J. Super. 1981);
Burns v. Burns, 538 A.2d 438 (N.J. Super. Ct. Ch. Div. 1987).
See e.g. Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983); Minkin v. Minkin, 434
A.2d 665 (N.J. Super. Ct. 1981); In Re Marriage of Goldman, 554 N.E.2d 1016
(111. App. Ct. 1990) (stating that marriage and divorce are not religious
events, but rather contractual in nature); Cook v. Cook No. FA 90-0376937, 1992
Conn.Super. Lexis 1589 (Conn. Super. Ct. May 26, 1992) (holding that the court
could compel both parties to participate in obtaining the get); In re Scholl v.
Scholl, 621 A.2d 808 (Del. 1992) (get provision is proper because simply
enforcing a contract that the husband had agreed to when he agreed to the
ketubah); Fleischer v. Fleischer, 586 So.2d 1253 (Fla. Dist. Ct. App. 1991)
(holding that in participating in a ketubah ceremony, husband waived his First
Amendment challenge to delivering the get); Burns v. Burns, 538 A.2d 438 (N.J.
Super. Ct. Ch. Div. 1987) (It is not a violation of the Establishment Clause to
force the husband to submit to the authority of the Beit Din since his refusal
to give a get is not based on genuine
e.g. Minkin, 434 A.2d at 668; Scholl, 621 A.2d at 812.
See e.g. Koepell, 138 N.Y.S.2d at 375; Avitzur, 446 N.E.2d at 137; Burns,
at 266; Goldman 554 N.E.3d at 1021 (giving defendant choice of freely giving a
appearing before a Beit Din); Waxstein, 395 N.Y.S.2d at 788 (requiring parties
to take "whatever steps are necessary to secure a get either giving a get
or appearing before the Beit Din").
Babylonian Talmud: Gittin 88b ("A get meuseh entered into under duress
is-, if it is in accordance with a Beit Din's order to give a get, it is not
valid if it is D'~~ accordance with a ruling of a Beit Din to give a
See Rambam, Mishnah Torah, Hilchot Gerushin 2:20 (discussing compulsion is and
is not permitted).
See Pal v. Pal 356 N.Y.S.2d 672 (App. Div. 1974). The court relean~ husband
from jail, after recognizing that jailing him would not result in a valid gd,~
thus would not achieve the objective of alleviating the woman's plight. See id.
See infra Section V.B.
See J. David Bliech, Jewish Divorce: Judicial Misconceptions and Pos~ Means of
Enforcement, 16 Conn. L. Rev. 201 (1984) at 235.
See Breitowitz, supra note 3, at 15. These coercive measures include comW
ostracism, restriction of honors in synagogue, and may include action by the
secular~ to compel the get. See id. Corporal punishment has been allegedly used
by certain Hasidic sects, who use clandestine "enforcers" to carry
out the decree of the Beit Din. See Breitowitz at 35. Such coercion is rarely
applied as findings of kofin are relative and most Beit Dins do not condone the
use of violence as a means of enforcement. See supra note 42-46 and accompaying
J. David Bleich, Jewish Divorce: Judicial Misconceptions and Possible Means of
Enforcement, 16 Conn. L Rev. 201 (1984). Rabbi J. David Bleich believes that in
cases where a kofin situation is found, Jewish law would permit the secular
court to Order the husband to give a get, and would recognize such a get as
valid, provided that the court does not do so directly, but rather compels the
husband to follow the Beit Din's finding. In such a case, the action of the
civil court is considered ancillary to the decision of the rabbinic tribunal.
See id at 235. See also Babylonian Talmud: Baba Batra 48a, Rambam, Mishnah
Torah Hilchot Gerushin 2:20, Shukhan Aruch Even Ha-Ezer 134:9.
See Bleich, supra note 85, at 235.
See id. There are practical differences as well. Although the secular court can
force the husband to appear before the Beit Din, it cannot force the husband to
comply with the findings of the Beit Din. This action thus may be fruitless in
resolving the problem of the agunah. See Elon, supra note 23, at 19.
See Victor v. Victor, 866 P.2d 899 (Ariz. Ct. App. 1993) (court has no
jurisdiction to force a husband to give a get); Turner v. Turner, 192 So. 2d
787 (Fla. Dist. Ct. App. 1966) (get provision in ketubah is unenforceable by
religious court); Steinberg v. Steinberg, 1982 WL 2446 (Ohio Ct. App. Jun. 24,
1982) (get provision is unenforceable because enforcement would violate the
Constitution); Wener v. Wener, 301 N.Y.S.2d 237 (Sup. Ct. 1969) (denying in a
child support dispute that the ketubah is an enforceable contract); Margulies
v. Margulies, 344 N.Y.S.2d 482 (App. Div. 1973) (court would deny the ability
to enforce a contract to give a get).
See Turner v. Turner, 192 So.2d 787 (Fla. Dist. Ct. App. 1966) (holding that
the chancellor had no statutory authority to impose a provision in the final
divorce decree requiring husband to give wife a get); Steinberg v. Steinberg,
1982 WL 2446 (Ohio Ct. App. Jun. 24, 1982) (holding that the court could not
condition receipt of alimony on the wife's cooperation in the get process).
N.Y. Dom. Rel. Law § 253 (McKinney 1986).
N.Y. Dom. Rel. Law § 253 (McKinney 1986). Telephone Interview with David
Zwiebel, Counsel for Agudat Israel (Mar. 9, 1998). Governor Cuomo's subsequent
statement that if the law is unconstitutional, "our excellent courts will
make that clear in due time," was criticized by the press, which felt that
Governor Cuomo had abdicated his constitutional responsibility. Cuomo Signs Law
to Block Misuse of Jewish Divorce, N.Y.L.J. Aug. 10, 1983 at 1.
See N.Y. Dom. Rel. Law § 253 (McKinney 1986).
N.Y. Dom. Rel. Law §236 B5 (5) W (6) (d) (McKinney 1986).
See id. See also Breitowitz, supra note 3, at 210.
See Brief of Amicus Curiae Agudat Israel of America at 3; Becher v. Becher, 667
N.Y.S.2d 50, (App. Div. 1997), appeal dismissed, 694 N.E.2d 885 (N.Y. 1998)
(holding that the constitutional issue was moot because the wife had waived all
her rights under the law). Agudat Israel attacked the constitutionality of the
law in the amicus brief.
The argument is that this law creates such a strong financial pressure on the
recalcitrant party to give a get as to make the get a get meuseh. See supra
note 79 and accompanying text.
The law received strong support from organizations including the Orthodox
Union, the National Council of Young Israel, and the National Jewish Commission
on Law and Public Affairs. See Breitowitz, supra note 3, at 209.
See Appendix A. The Orthodox movement neglects the Lieberman clause, primarily
because the indeterminate monetary penalty raises difficulties with the
principle of asmachta. The arbitration agreement can be inserted into the
ketubah or executed separately. See infra Section W.A. See also infra note 120
and accompanying text.
See Appendix B.
See Sefer Nachalat Shiva: Chapter 9. The Nachalat Shiva included such a form in
the Tenaim, the traditional prenuptial contract, which has been through several
incarnations. One of these variations included the amount of the dowry, the
financial agreements between the families, and the financial obligations owed
by the parties if one of them refuses to enter into the marriage. See id.
The Rabbinic Assembly and the Jewish Theological Seminary [JTS1 are
respectively, the rabbinic organizational arm and the theological seminary of
the Conservative Movement.
See Avitzur v. Avitzur, 446 N.E.2d 136, 137 (Y.Y. 1983).
See Breitowitz, supra note 3, at 120-44. M
This agreement was later incorporated into a volume by Basil Herring and
Kenneth Auman, The Prenuptial Agreement: Halakhic and Pastoral Considerations
45-54 (1996). It should be noted here that prenuptial agreements in general
have received support in the more modern Orthodox community. See Leichman,
supra note 64, at Rl.
community that is more closely affiliated with the Agudat Israel has not
endorsed the idea of a standardized prenuptial, perhaps based on a responsa of
Rabbi Moshe Feinstein, the spiritual leader of that community and one of its
greatest hatakhic voices of the 20' century. When asked about the binding
arbitration agreement, he responded that it was permissible, and the get was not
considered coerced, but one should be familiar with the couple before broaching
the topic with them. As some couples will be scared away from marriage by the
discussion of divorce, and as marriage is considered a religious act, it is
important not to do anything that may dissuade young couples from marrying. See
Iggrot Moshe Even Haezer, VII No. 107 (large volume edition).
See Herring and Auman, supra note 106, at 45-47 (parties must fill in the name
of the Beit Din they wish to handle their case). Most couples will fill in the
name of a standing Beit Din, such as the Beth Din of the Rabbinic Council of
America, a central body of rabbis who tend to be affiliated with Yeshiva
University, or the Beit Din of Agudat Rabbonim which is affiliated with the Agudat
Israel, an organization whose roots are in Europe and many of whose members are
educated in more ultra-Orthodox yeshivot. See id.
See id. This document was initially drafted by Rabbi Mordechai Willig at the
behest of the Orthodox Caucus. It has since been adopted by the Rabbinical
Council of America [RCAL a Modern Orthodox umbrella group, which has
recommended that all of its members utilize this agreement when performing
As opposed to the Lieberman clause, which is in Aramaic as part of the ketubah.
See infra note 104 and accompanying text.
See supra note 80.
See Herring, supra note 106, at 60.
See Breitowitz, supra note 3, at 119.
See id. at 119. See also Irwin Haut, Divorce in Jewish Law (1987).
See Breitowitz, supra note 3, at 119.
Religious prenuptials are normally given to the couple by the rabbi who is!
officiating at the marriage. While sometimes the rabbi will give the couple the
prenuptial agreement in advance of the wedding, the prenuptial is often
presented immediately preceding the wedding ceremony, thus leaving the couple
without the opportunity of consulting an attorney.
See Rabbi Reuven P. Bulks, The Rabbinical Council of America Lifecycle Madrikh (1977).
This book, directed at rabbis, contains several lifecycle documents, including
a prenuptial. See id. at 69-77.
The addition of a Hebrew version is especially difficult with the Lieberman
clause, because very often the couple does not know the meaning of the ketubah,
since it, is in Aramaic or Hebrew. While the couple may have been advised that
the clause is, present before participating in the ketubah ceremony, it is very
possible for a couple W sign a ketubah without being aware of the clause. This
has become increasingli, problematic as many couples select their ketubah from
Judaica shops based on th artistic merit of the document. Thus, a couple could
literally purchase a document
clause contained in it without any knowledge that it is there.
446 N.E.2d 136 (N.Y. App. Div. 1983).
See id. at 573.
See id. at 574.
See Bums v. Burns, 538 A.2d 438, 440 (N.J. Super. Ct. Ch. Div. 1987). See also
Koepell v. Koepell, 138 N.Y.S. 2d 366 (Sup. Ct. 1954) (forcing defendant
husband to fulfill an earlier agreement to appear before a rabbinical court is
See Burns, 538 A.2d 438 at 439.
U.S. Const. amend. 1. ("Congress shall make no law respecting an
establishment of religion")
U.S. Const. Amend. 1. ("Congress shall make no law ... prohibiting the
free, exercise thereof")
See Cantwell v. Connecticut, 310 U.S. 296 (1940) (Free Exercise); Everson v.
Bd. of Ed., 330 U.S. 1 (1947) (Establishment Clause).
U.S. Const. amend. XIV.
403 U.S. 602 (1971).
Lemon, 403 U.S. at611.
See Avitzur v. Avitzur, 446 N.E.2d 136, 138-39 (N.Y. 1983).
See In re Sunshine, 357 N.E. 2d 999 (N.Y. 1976); see also Avitzur, 446 N.E.2d
at 137 (holding a prenuptial contained within a ketubah is enforceable and
subject to specific performance).
The right to enter into contracts is recognized by both the federal and state
constitutions. See, e.g., U.S. Const. art. 1, § 10; 111. Const. 1970, art. I
See Gottlieb v. Gottlieb, 175 N.E.2d 619 (111. 1961).
See lemon, 403 U.S. at 612.
See Breitowitz, supra note 3, at 26.
See Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract,
and the First Amendment, 51 Md. L. Rev. 312, 387.
See, e.g., Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983).
See Breitowitz, supra note 3, at 88-89.
See Agostini v. Felton, 521 U.S. 203, 220 (1997). 146.See Jones v. Wolf, 443
U.S. 595, 602-04 (1979).
See Martin Domke, Domke on Commercial Arbitration 441. See also Lieberman v.
Lieberman, 566 N.YS.2d 490 (Sup. Ct. 1991).
See Jones, 443 U.S. at 602 (First Amendment severely limits courts fro
involving themselves in questions involving religious doctrine).
This is because of the issue of asmachta. See infra Section VI.
This is because of the issue of asmachta. See infra Section VI, Mi
See Jones, 443 U.S. at 602 (1979). Judicial involvement is permitted to the
extent that it can be accomplished in purely secular terms, i.e. the
application of objective,
principles of secular law. Many of the prenuptial cases may be resolvable by
the application of secular contract law.
Lynch v. Donnelly, 465 U.S. 668 (1984) (O'Connor, J. concurring).
492 U.S. 573 (1989).
Id. at 574.
505 U.S. 577 (1992).
Id. at 587.
See Lynch, 465 U.S. at 688; Allegheny, 492 U.S. at 574.
See infra note 178 and accompanying text.
See Minkin, 434 A.2d at 668.
See supra Section I and note 58.
See Allegheny County v. ACLU, 492 U.S. 573,610 (1989).
Agreements to have a matter arbitrated in an alternative forum have been
generally upheld. See Martin Domke, supra note 146, §4.19 at 3 (pocket part,
August 1998). See also In re Sunshine, 357 N.E.2d 999 (N.Y. 1976); In re Davis,
228 N.E.2d 768 (N.Y. 1967).
See Lee v. Weisman, 505 U.S. 577, 631 (1992) (Scalia, J., dissenting).
See John E. Nowak & Ronald D. Rottunda, Constitutional Law §17.2 at 1221
(5th ed. 1991).
See Lauren Freeman, The Child's Best Interests vs. The Free Exercise of
Religion, 32 Col. J. L. Soc. Prob. 73 (1998).
374 U.S. 398 (1963).
See id. at 406.
406 U.S. 205 (1972).
See id. at 215.
See Minkin, 434 A.2d at 667-68.
See Bleich, supra note 85, at 233
See Scholl v. Scholl, 621 A.2d 808 (Del. Farn. Ct. 1992). The court ordered the
husband to give his wife a get per stipulation of the settlement, because
although the court could not require the husband to participate in religious
ceremony, here the court was simply ordering him to do what he had promised.
See also Burns v. Burns, 538 A.2d 438 (N.J. Super. Ct. Ch. Div. 1987)
(requiring the husband to assist the wife in getting a get does not violate
Minkin, 434 A.2d at 667-69. The rabbis variously testified that "the get
does not involve a religious ceremony or require a rabbi's presence, and
although the husband is required to take the initiative, he does not have to be
a believer, state any doctrine or creed, or even acknowledge his
Jewishness"; "the document contains no reference to God's name";
and "the get is a general release document where the husband releases the
wife and frees her to marry in compliance with the ketubah contract.' Id.
Koepell v. Koepell, 138 N.Y.S. 2d 366, 373 (Sup. Ct. 1954).
Id. See also Bleich, supra note 86, at 230 n.88 ("It should be noted here
that the court did not understand the nature of the get.... [H]owever, the
salient point, namely that no 'profession of faith is involve& is entirely
See supra notes 76, 176 and accompanying text.
The Babylonian Talmud: Kiddushim 41b notes the get is "hol", not
religious. However, this may just be in the context of the particular
discussion of the holy priestly offering, and not in a context of a larger
discussion of secular verses religious. See id.
See Elon, supra note 23, at 5.
Breitowitz, supra note 3, at 353.
See supra note 76 and accompanying text.
See, e.g., Stern v. Stern, 5 Family L. Rep. (BNA) 2810-11 (N.Y. Sup. Ct. 1979).
Id. See also In Re Marriage of Goldman, 554 N.E.2d 1016 (111. App- Ct. 1990);
Roth v. Roth, Civ. No. 79-192709 (Mich. Ct. App. Jan. 23, 1980).
See, e.g., Burns v. Burns, 538 A.2d. 438, 440 (N.J. Sup. Ct. Ch. Div. 1987).
See supra note 76 and accompanying text.
343 U.S. 306 (1952).
Michael W. McConnel, Accommodation of Religion, 1985 Sup. Ct. Rev. 1.
See Breitowitz, supra note 142, at 350.
See Nowak, supra note 165, at 1290.
494 U.S. 872 (1990). One such exception would be where law is designed
specifically to burden religious beliefs. This type of law was the subject of
the Church of Lukumi Babaly Aye v. Hialeah, 508 U.S. 420 (1993). Such a law
will be subject to strict scrutiny by the courts and the compelling interest
test. See Nowak, supra note 165, at 1292-93.
Smith, 494 U.S. 872 (1990).
See Breitowitz, supra note 3, at 192-93.
Compare Wisconsin v. Yoder, 406 U.S. 205 (1972) (allowing exemption fr6k
statute by Amish) with Braunfeld v. Brown, 366 U.S. 599 (1961) (upholding the
constitutionality of "blue laws" that made it difficult for Saturday
Sabbath observers to make a living).
See Ira C. Lupu, The Trouble with Accommodation, 60 Geo. Wash. L. Rev W
Nowak, supra note 165, at 1280-90.
See Rubin v. Rubin, 348 N.Y.S.2d 61 (Fam. Ct. 1973) (distinguishing between
Koepell, 138 N.Y.S.2d 366, and Margulies v. Margulies, 344 N.Y.S.2d 482 (App.
Div. 1973), on grounds that the court was not attempting to enforce religious
discipline, but rather was enforcing other relief for a party who refused to
participate in an agreement, and the actions which were a condition precedent
to receiving relief, happened to have religious significance).
Restatement (Second) of Torts § 46 cmt. f (1965). See also generally Prosser
and Keeton the Law of Torts §54 at 364-65, and nn.57-61, § 122 at 901-05.
Restatement (Second) of Torts § 46, at 1 (1955).
Id. at § 46 cmt. d.
Id. at § 46 cmt. f.
See Breitowitz, supra note 3, at 239 n.703.
See id. at 240.
Patti L. Scott, Divorce Law and the Religion Clause: An Unconstitutional
Exorcism of the Jewish Get Law, 6 Seton Const. L.J. 1117 (1996) at 1189.
However, this tactic may raise halakhic problems, because of the problem of get
meuseh. See supra note 79 and accompanying text.
See Lemon v. Kurtzman, 403 U.S. 602, 611 (1971).
See Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
See supra note 76 and accompanying test.
See Employment Division v. Smith, 494 U.S. 872 (1990).
See discussion of get meuseh, supra note 79 and accompanying text.
See supra Section 1.
See Margulies v. Margulies, 344 N.Y.S.2d 482 (App. Div. 1973).
1 Encyclopedia Talmudit, "Asmachta" at 10-19 (1973).
Rambam, Mishnah Torah, Hilchot Mecirah, 11:4.
A person can accept an obligation to support someone else unconditionally for a
specified period. See Babylonian Talmud: Ketubot 101b (one can support his
stepdaughter for the period of her marriage). It has been extrapolated that one
can make this agreement with one's own wife, despite her halakhic status as a
rebellious wife or moredet, which would remove her husband's obligation to
support her. In addition, a husband can waive his right to a wife's earnings
and property, which is generally assumed in Jewish law. Even HaEzer 113, Beit
Shmuel 2, Even HaEzer 134 Pitchai Teshuvah 9. However, in order to avoid the
problem of asmachta, it is preferable to specify the amount, and have that amount
directly correlate to the costs of support.
See supra Section 1.
See Donike, supra note 146, at 441.
See Breitowtiz, supra note 3, at 133-34.
See id. While this may appear to be a legal fiction, the ability to make a
realistic choice determines the validity of the get. Thus, the monetary amount
selected must be one that is within reason for the couple - an amount that is
too low would render it insignificant, however, and an amount that is too high
might leave the spouse with no reasonable choice in deciding to give the get.
See Breitowitz, supra note 142, at 373 n.268.
Isaac Herzog, The Main Institutions of Jewish Law 32 (1980). It should be noted
that the agreement that the RCA endorses contains a provision that directs the
arbitration of monetary disputes to the Beit Din. Many object to the inclusion
of the monetary disputes in the arbitration. They feel that the current secular
laws of equitable distribution and maintenance favor women more than Torah Law
does. Halakhically however, these disputes belong in the Beit Din, unless Beit
Din allows the parties to resolve them in court. According to many halakhic
interpretors, if both parties agree that Beit Din should base their decisions
upon secular law as well as Torah law, the Beit Din will do so. See Prenuptial
agreement, Introduction for Officiating Rabbi, pg. 3 in Accompanying notes to
Agunah Conference, held at Cardozo Law School in 1993.
See Shulchan Aruch Even HaEzer 69:2. This obligation is formalized in the
ketubah, but it exists independently of any formal agreement. See Elon, supra
note 23, at 390.
See Shulchan Aruch Even HaEzer 80:1 ("The work of her hands is to go to
her husband."). The wife can choose to keep them if she forgoes her husband's
support. See id.
Note that some Batei Din will assign equitable distribution, or something akin
to such a value. See supra note 227 and accompanying text.
It should be noted, however, that any custody agreement, even if decided by
mutual decision, could be overturned by the state if the state determines that
it is not in the best interests of the child. See Mookin and Wiesberg, Child,
Family and State, 819 (3rd ed. 1995). For an example of such a clause, see
See supra note 53 and accompanying text.