The RCA prenuptial agreement is not without its detractors.
In an article being prepared for JOFA, attorney Tara Bognar warns that the main purpose of the RCA prenup was to ensure that litigating couples bring their disputes before religious rather than secular courts.
She bases that claim on a report of remarks made by Rabbi Zalman Nehemia Goldberg, one of the agreement’s authors, at a Yeshiva University conference.
And indeed, the agreement contains optional clauses that would empower the religious court to decide all a divorcing couple’s monetary disputes and questions of custody and visitation.
Bognar warns that it’s a trap into which unwary women might fall.
The document, notes Bognar, doesn’t indicate whether the beth din will use the secular “best interests of the child” standard or rely on its interpretation of halacha.
In fact, the agreement’s author, Rabbi Mordechai Willig, admitted as much in an RCA booklet promoting it.
“[S]ome women or their attorneys will object to the inclusion of monetary disputes (e.g. property settlements, alimony, child support) in the arbitration agreement, for the current secular law of equitable distribution and maintenance or community property will generally result in a larger financial settlement for women than does enforcing the provision of the standard ketubah. Halakhically, however, resolutions of marital property disputes are within the jurisdiction of a bet din, unless bet din permits the parties to resolve them in court.”
Unlike the no-fault judgments of courts in most American states, the prenuptial agreement states that 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 obligations.”
It’s not hard to find modern Orthodox YU-ordained rabbis who will run to dissuade people from putting their divorces in the hands of the Beit Din of America – even if they’re not willing to criticize the beit din publicly.
The solution is simple, says Rabbi Shmuel Goldin of Ahavath Torah in Englewood and immediate past president of the RCA: Don’t check the boxes on the prenuptial form that makes the beit din binding arbitration for support, custody, or any other non-agunah issues.
That’s what he does with the couples he marries.