Volume 45 Number 68
Produced: Mon Nov 15 21:00:35 EST 2004
Subjects Discussed In This Issue:
Lateness to Shul
[Martin Stern]
Prenuptial Agreements Info Request
[David Mescheloff]
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From: Martin Stern <md.stern@...>
Date: Mon, 15 Nov 2004 09:35:12 +0000
Subject: Re: Lateness to Shul
on 15/11/04 4:40 am, Tzvi Stein <Tzvi.Stein@...> wrote:
> I was floored to read the post, whose author felt that he comes to shul
> on time, he begrudged those who came late, because he is "subsidizing"
> their davening (presumably because the latecomers get the benefit of a
> minyan despite not "contributing" to the minyan by being on time).
In his criticism, below, of Carl, Tzvi seems to be assuming that he is
talking about Shabbat attendance. I would very much doubt if that was
what carl had in mind. As I read his posting, it was referring to
weekday davenning, specifically shacharit. For people who come habitual
late (where there are no obvious reasons such as having many small
children at home, known chronic illness etc.) during the week, the rabbi
might be able to find a suitable way to discuss with them their problem
and draw their attention to its non-ideal nature in a non-threatening
manner. Only someone with extreme sensitivity to other people's feelings
should even attempt to do so otherwise, as Tzvi points out, they might
feel 'driven away' from the community.
> This whole exchange makes me exceedingly grateful that I've found the
> shul that I belong to. Just by way of contrast, we have people coming
> in on a Shabbos throughout the whole davening, even after Krias HaTorah.
> ...
> I think it's safe to say that many of the people in our shul would not
> be frum, or would be barely frum, if their only option was a shul that
> had a policy of rebuking latecomers or that exuded a disdain for them.
This might be a valid approach to marginal members on shabbat or yom tov
but the problem is acute on weekdays when only the more committed ones
come. The latter might already be on a level of Jewish awareness to be
capable of accepting rebuke if it is given in the correct manner. We all
should want to 'grow' in our Jewish commitment and this is one aspect in
which the opportunity can be found.
> Also, someone mentioned that Shabbos davening is often the only link a
> person has with Judaism. This is definitely true, and I'm *not* talking
> about "conservadox" people that drive to shul, or beginning baalei
> tshuva. I'm talking about people who, if you looked at them, you would
> assume are quite "yeshivish", but for whatever reason are actually quite
> on the "margins" of frumkeit and in many ways just as "at risk" as the
> fabled "teens", even though they may be in their 30s or 40s. These are
> men with families who we very much need to keep in the fold for their
> own sake as well as that of their families and our community. Looking
> askance at them when they walk into shul late is guaranteed to do the
> exact opposite of that.
That is why the giving of rebuke should be restricted to those able to
do so and not used just as an opportunity for anyone to vent their
spleen on those of whom they disapprove. Discussion on mail-jewish,
being impersonal, allows the problem to be aired and, who knows how many
members may come to think about whether it might apply to them and make
more effort to come to shul on time in future.
In the same issue, Ira Bauman <Yisyis@...> wrote on this topic:
> 1. As an observer of this phenomenom, I have to teach myself to be
> tolerant. They may have come from a family or culture that didn't value
> punctuality as did mine. There may be mitigating factors. Even if
> there weren't, I still have to accept and love my fellow Jew as he is,
> as long as his malfeasances remain rather trivial.
Ira is absolutely right about accepting and loving one's fellow Jew. The
problem with latecomers is not their lateness as such but the
disturbance they tend to cause. I have had the problem of latecomers to
a weekday shacharit pushing past me to get to an empty seat (not their
regular one) when I was clearly saying shema. In that particular case,
on arriving there, he realised he had not taken a siddur and pushed past
again to fetch one (and come back). I can't help thinking that someone
who comes so late should forego a seat if none are easily accessible. On
another occasion, a latecomer did not skip the appropriate passages in
pesukei dezimra but recited some random phrases in a loud voice. It is
very distracting, for example, to have someone 'shout' the words "Rabbi
Yishmael omer" down one's ear when one is trying to concentrate on
"poteiach et yadekha"
> 2. From the point of view of the chronic latecomer, I have to ask,
> "Doesn't anyone blush anymore?" When a community as a whole has
> established certain standards in Torah observance and zehirut
> (carefulness), what goes through the mind of one who publicly flaunts
> the community's standards? This could apply in many areas (immodest
> dress, one's appearance on the sabbath, talking in shul). If I
> overslept and came very late to minyan, my face would be red with
> embarassment. Maybe that's just me, but why don't I see it in some
> others? It's a conundrum. When the second point becomes too
> frustrating, I then have to revert to point number 1.
Ira has hit the nail on its head with his question "Doesn't anyone blush
anymore?" The answer to Ira's conundrum is that we have gone too far in
tolerating lateness for shul and it is only the odd (in more senses than
one) person who feels embarrassment at it.
We are all human and will not always manage to come on time. We may know
that we have a valid reason on that occasion but we should still feel
embarrassed despite that, especially if it is a result of our own
forgetfulness rather than purely force majeure. I remember an occasion
when I forgot it was Rosh Chodesh, when we start at 7 a.m. rather than
7:20, and, looking at the clock, decided I had time for a cup of coffee
before going to shul. I got the shock of my life when, arriving at 7:10,
I found that the congregation had already started pesukei dezimra. I
hope I will never let that happen again.
Martin Stern
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From: David Mescheloff <david_mescheloff@...>
Date: Mon, 15 Nov 2004 17:05:59 -0800 (PST)
Subject: Prenuptial Agreements Info Request
Moshe Goldberg wrote:
> Where can up-to-date information be found on the status of prenuptial
> agreements and their halachic implications? Have they been accepted on
> a wide basis? In the US, in Israel, elsewhere? Are there recent articles
> on the subject that can be accessed on the web/internet?
May I immodestly recommend my article on prenuptial agreements, which
appeared in Techumin 21 (2001), pp. 288 - 323. I presented halachic and
practical advantages and disadvantages of over a dozen different
prenuptial agreements that have been proposed in halachic circles over
the past 15-20 years. The article begins with a brief presentation of
over half a dozen other halachic methods that have been proposed, over
the past century or so, for dealing with the recalcitrant husband
(contemporary "aguna") problem. I have been told by some highly
respected rabbinical colleagu es that the treatment of both issues is
thorough and comprehensive.
On the other hand, others have told me it is long, and that not all is
easy reading. The article was longer and even more comprehensive
initially, but the editors insisted on compacting it significantly,
rather than publishing it as two separate articles, one on prenuptials
and another on other solutions to the recalcitrant husband problem.
Perhaps one indication of the difficulty and brevity can be seen in the
fact that, although I also dealt with the matter of "hafka'at kidushin"
(annulment of the legal marriage act), its merits and its limitations,
yet the editors of Techumin still saw fit to present an extensive
re-debate on its merits and flaws over the next two years, between two
great rabbinic personalities, Rabbi Shlomo Riskin and Rabbi Zalman
Nehemia Goldberg. On this issue my view is as Rabbi Goldberg's; when I
met Rabbi Riskin at a Knesset meeting called by Gila Finkelstein to
discuss the issue, he seemed to grant the points I made, and I believe
he has toned down his position on the issue, without abandoning it
altogether, after the debate flared up again in a couple of issues of
the OU journal, Tradition. The only method I did not discuss is that of
"kiddushei ta'ut" (marriage based on a significant deception at the time
of marriage) - although I have included that in courses on Jewish
marital law I have taught over the past sixteen years (including in
yeshivot), it never occurred to me that anyone would make large-scale
use of such a method; indeed, although it has been used a lot by one bet
din in recent years, all others that I know totally reject its wholesale
application.
At the end of the above article, I presented a prenuptial agreement I
have been using, without fanfare - indeed, with no publicity at all -
for some of the couples whose weddings I have performed over the past
fifteen years. It has been approved both as halachically valid, by
dayyanim (rabbinic court judges) and great poskim (deciders of Jewish
law), on the one hand, and as valid under Israeli law, by lawyers, on
the other hand, . To my delight, I believe that over 95% of the couples
whose weddings I performed are still married (I invest more effort than
any Israeli colleague I know in premarital preparation); yet, to my
dismay, my prenuptial agreement was tested in one case, and seems to
have prevented a potentially very nasty recalcitrant husband problem.
Because I buried my proposal at the end of a long article, it has drawn
little attention.
Recently I have been encouraged by colleagues to bring my proposal to
the attention of a broader public, with the support of some of those who
have approved it. G-d willing, I hope to do so in the near future. I
am trying you, my fellow Mail-Jewish readers, first. You will be able
to say "We heard about it first!" Forgive me for not mentioning the
names of those who approve of my proposal; it would be premature at this
time. The major advantages of my prenuptial agreement are: a) it is
completely egalitarian, consisting of two agreements whose wording is
virtually identical for both the man and the woman; b) it contributes to
strengthening the bet din, rather than circumventing it or undermining
it; c) it utilizes a widely accepted halachic technique - a "legal
fiction" in actual use in batei din (Jewish courts), not some minority
view good only in theory - to create genuine significant pressure on
both parties to cooperate in the delivery and receipt of a get (Jewish
divorce document), with particularly tough pressure applied to whichever
party may be judged as recalcitrant; yet d) there is virtually no risk
of the divorce being disqualified on account of halachically
unacceptable and excessive coercion having been applied to bring about
the divorce, because the explicitly declared - and genuine - aim of the
agreement is not the divorce but the cooperation of both parties in a
mediation process, under the skilled guidance of a pre-appointed
professional mediator.
I am particularly pleased by this last point. The key to divorce in
Jewish law is agreement, which is where 99% of Jewish divorces arrive,
after much heartache, pain and harm to children, and great expense, over
an extended period of time, with the help of lawyers, in bitter
litigation. None of that is required by halacha, only agreement, which
can be reached just as well - or better - by mediation than by
litigation. This has halachic precedents in our rishonim (Torah greats
of the early Middle Ages). I have seen skilled mediators solve some of
the most difficult problems with minimal pain, harm and cost, and in a
matter of weeks or months.
I regret that virtually all other prenuptial agreements aim to force
angry people to do what they should, rather than to bring them to
understand and accept the necessity and the rightness of doing what they
should (assuming that they should, indeed, divorce). Indeed, one of the
major problems most prenuptials face is how to create genuinely
effective force which is not excessive or illegitimate halachically -
they must walk a very fine line. I do not believe that forcing one to
act in one way or another should be encouraged, especially when there is
a better alternative. I do not share the common orientation expressed
once by a lawyer, whose response to my agreement was "This is fine, it
will work - but I'd rather see a solution achieved by applying legal
force!" Similarly, a rabbinic colleague once responded "Why should they
be encouraged to come to a divorce agreement? Then the bet din won't
get to punish the side that was in the wrong!" I confessed to my friend
that I'd rather see the man and the woman get divorced and get on with
their lives than see that "legal justice" is done to a wrong-doer, while
everybody suffers (go figure out which of the two is "the bad guy"!).
The major disadvantages of my agreement include: a) its length.
I originally intended to cover all possible eventualities that might
arise in the mediation process, but now I think this is superfluous;
also I used some lengthy halachic phraseology' to give a classic
halachic appearance to the agreement. Before "going public" I plan to
make the agreement more brief. b) the fact that it won't solve every
problem. Mediation does not work for everyone; but, then again, what
does? I would be pleased if my prenuptial just makes a moderate
contribution to improving the situation we see today, of hostile couples
in long drawn-out expensive litigation; c) a legal angle or two, which
have been brought to my attention recently, which may require some minor
rephrasing.
As to Moshe's original question, it is my impression that prenuptial
agreements have not become accepted on a wide basis, neither in the US
nor in Israel, especially not in first marriages, mainly for two
reasons: a) people are reluctant even to bring up the idea, lest it
imply that they have doubts the marriage will succeed; b) people are
confused as to whether it is halachically acceptable or not, because the
agreements are sometimes part of the agendas of groups who are
halachically suspect in some quarters, and because there are influential
rabbinical groups or individual rabbis who have come out against them.
I believe that once some as yet unknown critical mass of people will
have signed such agreements, these two hurdles will have been overcome.
Here, too, there is a delicate issue. Rabbi Elyashiv told me that,
although various agreements are acceptable, he opposes their widespread
use lest some pressure group or groups make them required by law - in
which case many couples will sign them without having had them
adequately explained, and without full intention - and then the
agreement will not be binding, and hence of no use. As long as an
otherwise halachically acceptable agreement is adequately explained and
voluntarily entered into on an individual basis, it is valid.
Rabbi Dr. David Mescheloff
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End of Volume 45 Issue 68