Jewish Divorce: What You Need to Know about Ketubahs, Gets and Pre-Nuptial Agreements
Posted on April 19, 2012 by Dishon & Block
by Stephen Jay Kaufman
In a Jewish divorce, the ancient ketubah or pre-nuptial agreement gives women certain rights, but how does a woman get a get (a Jewish bill of divorce)? And what about the husband? What are his rights and how does a Jewish man give a get?
Firstly, it’s best to hire a qualified divorce lawyer who also specializes in Jewish laws and customs and consult with a trusted rabbi. Jewish law differs considerably from California’s Family Code. Under Jewish law, spousal support is very limited, property is not divided equally, and gender preferences in custody disputes can produce results that California law disfavors.
For example, did you know simply filling out a form from your local modern orthodox rabbi could have profound effect on the outcome of a divorce? To avoid any costly financial (and emotional) mistakes down the road, here are some tips from this Jewish divorce attorney.
Plan to Divorce?
Couples planning to marry almost never do so with a plan to divorce, but many wish to arrange their affairs in advance, “just in case.” Prenuptial agreements are often made to state clearly what each of the parties in a marriage may expect if their marriage fails.
Issues regarding spousal support and property division are usually at the top of the list of concerns in this truly unromantic process. However, if the pre-nuptial agreement is properly drafted and executed, the contractual certainty of where each party stands economically in a marriage can actually bring shalom bait – peace in the home.
We tend to think of prenuptial agreements as creatures of modern American life, but Jewish wives have been protected by a premarital contract — called a ketubah — for more than two thousand years. The ketubah is given by a husband to his wife, and during marriage, a ketubah entitles a Jewish wife to financial support and conjugal rights.
How to Get and Give a Get
If the marriage unfortunately fails, the ketubah nominally obligates a Jewish man to support his wife, but it does not force him to grant her a get, which is a Jewish bill of divorce. Under orthodox rabbinic law, a get is required to end a Jewish marriage. In fact, a Jewish woman must get a get or she cannot remarry.
The get must be “freely given” by the husband. However, men have been known to extort huge sums of money for a get. There are many tragic stories of men so bent on vengeance or consumed by jealousy that they sit in jail rather than give a get. Certainly the tragedy lies not in the man who holds the keys to his jail cell, but rather in the life of the woman, called an aguna, who then becomes socially and perhaps financially imprisoned by such an self-obsessed man.
For those men who refuse to give a get, a rabbinic court can order a man beaten (theoretically) or jailed (actually) in order to get a get out of him. In Israel, he can be stripped of his driver’s license or professional license.
In the State of New York, there are special laws, which attempt to force an uncooperative man to grant his estranged wife a get. How does it work? The courts are allowed to consider financial hardships caused and can award support or property accordingly, and by requiring a get before entry of a civil judgment of divorce.
In the U.S., a few wives have successfully sued their husbands on the ketubah contract to obtain a get. However, California courts have repeatedly refused to enforce religious laws on First Amendment grounds.
What’s a Jewish Prenuptial Agreement?
All these remedies may fail if the rabbis find the get is not freely given. Because of this, a new kind of Jewish Prenuptial Agreement (JPA) was developed by modern orthodox rabbis, which levies a fine of a certain amount of support for each day a husband refuses to give a get.
Though not universally accepted by all orthodox rabbis as non-coercive, the JPA requires the parties to arbitrate their dispute before a rabbinical court (beit din). And though there are no cases yet to test the enforceability of a JPA because the agreement calls only for payment of money and not the granting of a get, the arbitration award should be enforceable in civil court, just like any other arbitration award.
Beware California Law!
In California, beware! The law regarding prenuptial agreements is quite complex and couples who enter into them quite often wind up litigating their validity and/or enforceability. It is imperative that anyone seeking to enter into a prenuptial agreement inCalifornia consult a family law attorney who knows this area of the law well.
If the couple’s only concern is getting a get if things don’t work out, the agreement should be carefully drafted to avoid all other issues. A standard, pre-printed Jewish prenuptial agreement drafted by a rabbinical council could make all issues, including support, property division, child custody – even restraining orders – subject to arbitration by a rabbinical court.
Steve Kaufman is a partner at Dishon, Block Divorce Attorneys, which is a family law practice with offices in both Century City (Los Angeles) and Irvine (Orange County), California.
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