According to Jewish law, both husband and wife must participate willingly in obtaining a Get, a Jewish divorce document, without which neither party can remarry in a future religious marriage ceremony. Typically, the parties file for divorce in civil court and contemporaneously or as part of the agreement obtain a Get.  There are cases, however, where a spouse uses the Get as leverage to gain concessions in the civil divorce, by refusing to agree to cooperate in the process of obtaining a Get.  According to the Rabbinical Council of America (“RCA”), that alone is “an abuse of Jewish law.” http://www.rabbis.org/news/article.cfm?id=105862.  

To address this longstanding issue, on September 21, 2016, the  RCA announced that it will now require “each of its members [to] utilize, in any wedding at which he is the mesaderkiddushin (officiant), in addition to a ketubah, a rabbinically-sanctioned prenuptial agreement, where available, that aids in our community’s efforts to ensure the timely and unconditional issuance of a Get.”

Under Jewish law, a marriage can be dissolved only with the transfer from husband to wife of a Get. The Get must be presented to a Rabbinical Tribunal known as a Beth Din. Until the Get is obtained, if wife remarries her subsequent marriage would not be recognized by her religion and any children would be considered illegitimate. A woman is labeled an "agunah", which literally means "chained".

The RCA adopted a resolution requiring member rabbis to demand that the bride and groom in all weddings at which they officiate execute a rabbinically sanctioned prenuptial agreement that would require them, in a divorce, to submit to a Beth Din process on the issue of a Get.

The underpinnings or motivation for the RCA’s mandate was to discourage a spouse from utilizing the Get process as a means of wresting unwarranted concessions in the civil divorce process, and likely in response to some notable cases that highlight the effects and costs of doing so and the not-so-settled body of law. Minkin v. Minkin, 180 N.J. Super. 260 (Ch. Div. 1981) and Burns v. Burns, 223 N.J. Super. 219 (Ch. Div. 1988) are good starting points for reference. In Mayer-Kokler v. Kokler, 359 N.J. Super. 98 (App. Div. 2003), the Appellate Division analyzed the Minkin, Burns and Aflalo decisions and concluded in each case, the court must examine the specific terms of the particular Ketubah marriage agreement entered into by the parties.  

Considering the RCA’s new mandate that a specific prenuptial agreement be executed requiring the parties to agree to do so, it will now be important for the parties to consider pre-marriage the language and enforceability of the mandated prenuptial agreement in the context of the laws of their state, in the event that same goes beyond just requiring the parties to obtain a Get, which it does.   In New Jersey, for instance, the parties will need to consider the Uniform Pre-Marital Agreement Act, N.J.S.A. 37:2-31-41 (“UPAA”) which was adopted in 1988 and defines more thoroughly when a prenuptial agreement may be enforced.  If there is a dispute as to its language, obligations or interpretation, and the prenuptial includes financial considerations as well, (which it does), a New Jersey court in a divorce matter will be likely looking to the specific language of the prenuptial agreement to determine if same comports with the UPAA.

The Act put the burden of proof on the party alleging the prenuptial agreement to be unenforceable before setting aside a premarital or pre-civil union agreement.  The Act requires proof by clear and convincing evidence that:

a. The party executed the agreement involuntarily; or

b. The agreement was unconscionable at the time enforcement was sought; or

c. The party, before execution of the agreement:

     (1)  Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;

     (2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;

     (3)  Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or

     (4)  Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

The RCA mandated agreements, however, are more akin to a private arbitration agreement than an actual prenuptial agreement, which is fodder for future litigation over the scope and enforceability of the agreements as valid arbitration agreements.  The agreements which can be found through the RCA’s website have a provision that states:

By execution and delivery of this Agreement, each party consents, for itself and in respect of its property, to the exclusive jurisdiction of the Beth Din of America with respect to the issues set forth in paragraph I. Each of the parties agrees that he or she will not commence any action or proceeding relating to such issues in any court, rabbinical court or arbitration forum other than the Beth Din of America. This Agreement constitutes a fully enforceable arbitration agreement, and any decision issued pursuant to this Agreement shall be fully enforceable in secular court. Should any provision of this Agreement be deemed unenforceable, all other provisions shall continue to be enforceable to the maximum extent permitted by applicable law. As a matter of Jewish law, the parties agree that to effectuate this Agreement they accept now (through the Jewish law mechanism of kim li) whatever minority views determined by the Beth Din of America are needed to effectuate the obligations, procedures and jurisdictional mandates contained in this Agreement.  (Emphasis added). http://theprenup.org/prenupforms.html

The standard rabbinical prenuptial agreements adopted by the RCA have language referring to them as “arbitration agreements” and contain optional sections authorizing the Beth Din to decide all custody, and/or financial issues.  “The parties agree the Beth Din of America is authorized to decide all monetary disputes (including division of property and maintenance). . .”, reads one optional box on the Binding Agreement form.   The question of future enforceability may ultimately hinge on whether courts treat these mandated agreements as private arbitration agreements to deal with issues of equitable distribution, support and custody or prenuptial agreements. Ultimately it will still boil down to the specific language of the agreements and whether the divorce and custody issues can be properly addressed in this forum and whether same comports with newly amended New Jersey Court Rule 5:1-5 (Amendment adopted September 1, 2015), which essentially adopts Fawzy v. Fawzy, 199 N.J. 456, 482 (2009) regarding the enforcement, scope and structure of agreements to arbitrate in Family Part actions, including those made pursuant to the Uniform Arbitration Act, N.J.S.A. 2A:23B-1, et. seq., and the New Jersey Alternative Procedure for Dispute Resolution Act, N.J.S.A 2A:23A-1, et. seq.

Now, rather than litigating the issue of compelling a spouse to accept a Get, parties will likely be litigating the enforceability of the pre-marital/arbitration agreement.  In the end, what remains to be seen is whether we may see a decline in years to come of the “acceptance of a Get” litigation and a rise in litigation disputes over the enforceability of form prenuptial/arbitration agreements.  

 Allen J. Scazafabo, Jr. Esq., is a contributor to the Riker Danzig Family Legal Blog and is Board Certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.  As a member of the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP,  Allen practices in Riker Danzig’s Morristown, New Jersey office and focuses his practice on representing clients on issues relating to divorce, equitable distribution, support, custody, domestic violence, premarital agreements and appellate matters. You can reach Allen at 973-451-8428 or ascazafabo@riker.com.