Before Jewish couples get married, a Rabbi may want them to sign a prenup from a Bet Din. Many presented with this often have questions about this type of prenup – is it valid, should it be signed? A lawyer can help you understand this type of document and what signing it means.
A prenuptial agreement from a Bet Din usually has several sections. The first section has to do with agreeing to give the wife a “Get” (Jewish Divorce) should the couple get divorced. According to New York law, in a settled divorce the parties must sign a “removal of barriers to remarriage” document for the divorce to go through, and in a divorce that goes to trial, the Plaintiff must give a get. This does leave a female plaintiff in a precarious position without the prenuptial agreement, which is why today’s couples are being encouraged to sign.
There are two optional sections, which have to do with financial obligations and custody and visitation issues respectively. In New York State the Bet Din (or any arbitration panel) is not empowered to render decisions on child custody and welfare of children; the New York State courts have ruled that it is against public policy. In fact, even in financial decisions regarding children, there have been cases where a Bet Din’s ruling has been overturned by New York Courts, as the court felt that the Bet Din had failed to consider monetary issues such as the father’s assets or income and the Child Support Standards Act when making its decision. In one case, the court actually threw out the entire award made by the Bet Din because even though there were portions of the award which would normally have been upheld, the issues were so intertwined that the court felt the award could not stand.
I would have no reservation about a client only signing the part of the prenuptial agreement regarding the get. For all the other sections, I would recommend not signing. To ensure that the document is valid it should be notarized.
For those who are interested in a global prenuptial agreement I suggest that each party consult with an attorney about what their rights and responsibilities are, and that the document be drafted by an attorney. It is preferable for the attorney to be one who drafts prenuptial agreements and practices divorce on a regular basis, in order to increase the likelihood that it will be enforceable in court should the need arise. I would advise against blindly agreeing in advance to submit matrimonial and family issues to an arbitrator. In addition, I recommend that the issue of a prenuptial agreement be broached and settled well in advance of the wedding to avoid the possibility of there being any claim of coercion later on.