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Now that it has been enforced, she said, husbands know “there is a cost for withholding the get.”
Modern Orthodox rabbis and legal observers have long believed that the BDA prenup is bulletproof. Some point to the fact that it has taken 20 years for the prenup to be so publicly challenged in secular court as proof that they were correct.
Aranoff disagrees. She believes that grooms who signed the prenup during the 1990s were more progressive and therefore less likely to withhold a get if divorce became an issue. She said that cases are starting to come out now because the prenup is more widely used.
No one knows how many Orthodox couples have signed the BDA prenup. Anecdotally, it is gaining acceptance despite distaste and superstition among some couples who do not relish insuring against their divorce days before their wedding.
Rabbi Howard Jachter, a prominent advocate of the prenup, said, “From where I’m sitting in [the Modern Orthodox New Jersey enclave of] Teaneck, my sense is, it has become pretty standard.”
Rabbi Shlomo Weissmann said that an informal survey of members of the Rabbinical Council of America found in November 2009 that about one-third of rabbis who responded require couples to sign the prenup before they will officiate at the wedding. Just a little more than one-third encourage the prenup but do not demand it, Weissmann said.
Weissmann, director of the BDA, estimated that the prenup has been invoked dozens of times to persuade recalcitrant husbands to give their wife a get. He declined to comment on specific cases, but he added that “because it’s enforceable under secular law, it consistently results in the giving of a get early in the process.”
Although the Connecticut decision does not preclude the prenup from being challenged in the future, Michael Helfand, a professor at the Pepperdine University School of Law, said it establishes a precedent that makes the prenup harder to defeat. “Next time a judge gets one of these [BDA prenup cases], there’s an opinion he can look at and say it’s enforceable,” Helfand said.
The BDA has tinkered with its prenup over the years. Today, the document comprises two sections. In the first, a couple agrees to allow a beit din to arbitrate their Jewish divorce. In the second, the husband agrees to pay his wife a specific amount — currently $150 — for each day he refuses to grant a get.