‘Postnups’: New tool in Ohio divorce lawyer’s toolbox

By Andrew Zashin*

Most people have heard of prenuptial agreements. These are contracts that couples enter into before walking down the aisle that outlines what happens with respect to the parties’ finances in the event that the marriage ends due to divorce or the death of either party. On March 23, a similar tool known as postnuptial agreements will be available to married couples in Ohio.

Until this year, Ohio law prohibited postnuptial agreements, often referred to as “postnups.” This meant that married people could not enter into contracts regarding their obligations to one another. This also meant that married couples could not amend prenuptial agreements even if the prenuptial agreement contained an error or if circumstances changed that rendered the prenuptial agreement unfair or obsolete. Now, a 60-year-old couple that entered into a prenuptial agreement in their thirties can freely amend or modify that agreement to align with their current goals and circumstances.

In addition to amending a prenuptial agreement, there are many other reasons why a couple might consider signing a postnuptial agreement. One of the most common reasons is to address changes in the couple’s financial circumstances. Maybe one spouse plans on opening a business. A postnuptial agreement can clarify that the business will remain that spouse’s separate property, along with any debts associated with the business. If one spouse stopped working during the marriage to care for the parties’ children, a postnuptial agreement can create a structure for payment of support to compensate the spouse for the wages lost while staying home to care for the children. Postnups can also be helpful for couples who are experiencing marital difficulties who want to clarify their financial rights and obligations in the event of a separation or divorce.

Like a prenuptial agreement, postnuptial agreements will identify which assets are considered the separate property of each spouse and which assets are considered marital property. A postnup can also establish which spouse will be responsible for paying off certain debts, such as credit card balances or student loans. Postnups can outline the amount of spousal support to be paid in the event of a divorce. Postnups can also outline the amount that a spouse will receive in the event of the death of the other spouse during the marriage. Postnuptial agreements cannot be used, however, to make decisions related to child custody or child support. These issues can only be decided at the time a couple decides to end the marriage based on the best interests of the child at that time.

Like prenuptial agreements, postnuptial agreements require certain elements in order to be enforceable. The agreement must be in writing and signed by both spouses. It must be entered into freely without fraud, duress, coercion or overreaching. It must be made with full disclosure or with full knowledge and understanding of the other spouse’s property. A postnuptial agreement also cannot promote or encourage divorce.

Ultimately, Ohio’s adoption of postnuptial agreements provides married couples with a new way to protect their assets and plan for the future. While postnuptial agreements are not appropriate for every couple, they can be an important tool for couples who want to ensure that their assets are distributed in a way that they both agree on. Couples considering a postnuptial agreement should work with an experienced family law attorney to create an agreement that is legally binding and meets their needs.

This article originally appeared as a column for the Cleveland Jewish News.

2023-11-10T13:38:03-05:00March 16th, 2023|Post-Nuptial Agreements, Prenuptial Agreements|

Celebrity divorce: what does winning look like?

By Andrew Zashin*

When any celebrity divorce makes internet headlines, my curiosity as a family lawyer is piqued. As a result, over the past two years, I have been clicking on a fair number of articles reporting on Kelly Clarkson’s fairly public divorce. Last month, the internet was ablaze with headlines stating that Clarkson was ordered to pay millions of dollars to her ex-husband, Brandon Blackstone, as part of her divorce settlement. The implication of these headlines was that the divorce order was a major financial blow to Clarkson. From my perspective, however, Clarkson has exited her divorce, financially speaking, largely unscathed. Let me explain.

According to major news outlets, Clarkson earns approximately $1 million a month from “The Kelly Clarkson Show,” a talk show that started in 2019. In addition, it was reported that when she appeared on “The Voice,“ a reality-based, singing competition television show, Clarkson earned approximately $14 million a season. Court documents indicate that these combined TV appearances brought in approximately $1.5 million a month for Clarkson. In contrast, in 2021, Blackstone reportedly earned $10,000 a month as a rancher in Montana.

In addition to the earnings noted above, Clarkson also has her own furniture line and is now appearing on the NBC television show, “American Song Contest.” Earnings from both endeavors are not widely known, but are no doubt significant. In sum, what is important to understand is that Clarkson earns significantly more than her now ex-husband.

According to a recent story in PEOPLE, Clarkson has agreed to pay Blackstone $115,000 a month in spousal support from Feb.1, 2022, until Jan. 31, 2024, and monthly child support in the amount of $45,601 as part of their divorce settlement. In addition, Clarkson will pay Blackstone a one-time property division payment of $1.3 million. While these are significant numbers to the average person, they are not to Clarkson.

Assuming Clarkson’s and Blackstone’s above-listed incomes are correct, Blackstone and Clarkson collectively net approximately $685,500 per month. If you compare that collective amount to the monthly combined support to be paid to Blackstone for the next two years, Blackstone will receive less than one-quarter of the collective dollars earned between Clarkson and Blackstone. It is important to note, however, that for the next two months, Blackstone will receive even less than one-quarter since he is required to pay Clarkson $2,000 a month in rent and $12,5000 a month for the Montana ranch in which he resides. These payments by Blackstone are the result of a judge upholding the parties’ prenuptial agreement and thus finding that the Montana residence purchased during the marriage is the sole property of Clarkson, and that Blackstone only holds a 5.12% separate property interest in the adjoining ranch, which was also purchased during the marriage.

USA Today reports that the Montana properties are worth approximately $17.4 million. Therefore, if Clarkson was to sell the Montana properties following Blackstone’s exit from the properties, she would easily earn back the $1.3 million paid out to Blackstone in property division.

As you can see, from a sheer balance-sheet perspective, the divorce did not hit Clarkson’s wallet particularly hard. The outcome is a testament to what a well-written prenuptial agreement and good lawyering can accomplish. This is not to say, however, that Clarkson is the victor of the divorce. Clarkson and Blackstone suffered the loss of their marriage. She and Blackstone may still need to heal the emotional wounds they received before and during the divorce process. Hopefully, they both can move on respectfully for the benefit of their children.

This article originally appeared as a column for the Cleveland Jewish News.

2023-11-10T13:38:06-05:00April 22nd, 2022|Celebrity Divorces, Prenuptial Agreements|

Things to consider, discuss when approaching lawyers about Prenuptial Agreements

By PARIS WOLFE | October 21, 2021 | Currents Magazine

Prenuptial agreements are NOT a map for divorce. In fact, done with full disclosure, experts suggest they can even be good for a marriage. Whatever the perception, they’ve been on the rise in recent years, according to Elizabeth Green Lindsey, president of the American Academy of Matrimonial Lawyers. Lindsey has been a practicing family lawyer for more than 35 years and is a shareholder with the firm of Davis, Matthews & Quigley, P.C., in Atlanta.

Prenuptial agreements are, basically, an agreement made by a couple before marriage to deal with their assets if the marriage ends.

It is increasingly common for subsequent marriages and older couples to have prenuptial agreements to preserve assets for children from early relationships and protect their estates from the care and expenses of the new spouse.

“Prenuptial agreements are very good for several rea­sons,” says Lindsey. “First, they require that the parties have frank and sometimes difficult conversations about money before they get married and they need to really understand their respective values on money. Money is often one of the biggest areas of conflict.”

This sharing of information can actually prevent future conflicts and, thus, make a relationship stronger.

“The prenuptial agreement discussions can also lead you to understand family dynamics, and how much control the in-laws might have in the marriage,” she points out. Or, even adult children, in the case of older couples.

And obviously, prenuptial agreements allow the parties to set expectations on what would happen if there were a divorce or death. “Prenuptial agreements protect family assets like a business or other investments, and that can be a very good thing to avoid a contentious divorce,” she says.

The agreements only work when done well. “Prenuptial agreements are contracts, and the courts like to enforce them if the procedures are followed in the negotiation and execution of the agreements,” she says. By procedures, she explains, “Generally, there must be full disclosure of all assets and income, the agreement cannot be unconscionable, and the facts and circumstances must make it fair to be enforced.”

To meet those requirements it is recommended that each party to a prenuptial agreement have an attorney. “A lot can be gleaned about a future spouse with how each intends to treat the other because presumably they are negotiating when the parties are supposed to be in love and want to marry,” notes Lindsey.

When it comes to developing the contract, Cleveland attorney Andrew Zashin says one size does not fit all. Zashin is co-managing partner at Zashin & Rich in Cleveland and Columbus and has practiced law for nearly three decades. He is also an adjunct professor of law, teaching family law, at Case Western Reserve University.

The unique nature of each person’s life and assets requires individual attention.

Of course, prenups, as they’re colloquially known, are most common for people with an imbalance of assets and in subsequent marriages. “If you already own a business or own a house or have already been married and are bringing assets into a marriage, you want to make sure you leave with those same assets,” says Zashin.

Another scenario, he points out, “If you have children from an earlier marriage you want to be sure the assets of the earlier marriage will go to the children rather than someone else.”

Key points to create a valid prenup include:

  • Disclose ALL your assets. That means both parties share how much money and/or debt they have, the value of businesses and real estate, etc. “The more disclosures and accuracy of disclosures the better you are in developing a legal agreement,” says Zashin.
  • Give yourself enough time. That means enough time to collect all your documentation such as brokerage statements, house deed, current fmancial statements, bank account numbers, proof of ownership for cars, boats and more. Then, allow enough time to discuss and mediate the agreement. Finally, allow the parties at least 30 days to review the contract.
  • Be reasonable in property division. Spousal support components differ by slate. Ohio courts, says Zashin, are less likely to consider this provision.
  • Review wisely. That means both parties should have their own representation reviewing the final document. “When the monied party pays for the lawyer, it’s a questionable circumstance,” cautions Zashin. “The further from the wedding, the more back-and-forth discussion in advance, the more legitimacy the document will have.”

“Don’t be lazy in creating the agreement,” says Zashin. “The more work you do up front the better protected you’ll be if something happens. Once you sign it, you can agree to terminate, but you can’t alter its provisions.”

This article originally appeared in Currents Magazine.

2023-11-10T13:38:07-05:00October 21st, 2021|Prenuptial Agreements|

Melania Trump restructured post-nuptial agreement

By Andrew Zashin*

News recently broke about a new “tell-all” book covering America’s first lady. “The Art of Her Deal: The Untold Story of Melania Trump,” written by Pulitzer prize-winning Washington Post reporter Mary Jordan, promises to reveal an enigmatic and well-curated woman who is shrewd and savvy well beyond her wider portrayal in the news and in popular culture.

A spokesperson for the East Wing has already criticized the book and states that the information and sources are false. That remains difficult to determine and it will no doubt be scrutinized and debated.

Nevertheless, one of the most interesting accounts surrounds Trump’s much-maligned decision to remain in New York City with the couple’s son, Barron, after her husband was sworn in as president.

The book will reveal that neither FLOTUS nor the president thought that he would win the election and, in fact, the president planned on leaving the country immediately after the election to avoid the humiliation of a Hillary Clinton victory. News outlets widely reported that Melania Trump’s decision to remain in New York was made in order for Barron to finish his school year – not a crazy decision for a parent to make – even as the taxpayers’ bill generated by the need for multiple Secret Service details was being labeled as exorbitant.

According to Jordan, Trump needed a “cooling off period” after hearing, via media reports, of the president’s various scandals – including Stormy Daniels, the “Access Hollywood” tape, and Playboy Playmate Karen McDougal.

And, she allegedly leveraged the time apart to negotiate better prenup terms, particularly as related to her son Barron and ensuring his financial legacy as part of the “Trump empire.” Of course, during this period there was speculation as to the reasons the couple lived in separate cities. And, independent from any personal emotional issues that may have resulted from the physical separation, the political rumor mill was certainly active, and may have been quite frustrating for the image-conscious president.

But, salacious allegations aside, this entire event brings up interesting legal questions. Prenuptial agreements are fairly well discussed in both the law and in popular culture. In essence, they are contracts that couples enter when they are planning marriage, and they spell out what happens in the event of a divorce or the death of one spouse.

They are used to protect premarital wealth, including family wealth, and they are often used to clarify how children from other relationships may be provided for. President Trump has gone on record before stating that he is a big proponent of prenuptial agreements. He has called wealthy men who do not have such an agreement “losers.” It is unsurprising that the Trumps would have one. But this alleged post-nuptial agreement is less common.
Unlike most others states, post-nuptial agreements are not valid in Ohio. In Ohio, a couple can have a special type of contract called a “separation agreement” that divides assets and liabilities, and spells out rights and obligations, for purposes of a divorce or a legal separation.

But a married couple otherwise cannot alter their legal relationship by contract, meaning they cannot modify a prenuptial agreement after the marriage. Other states – including both New York and Florida – do allow them. So, depending on what state’s laws govern their various agreements, any modified prenup between the Trumps certainly could be valid.

That said, an agreement entered into under certain conditions such as fraud or duress could certainly invalidate an agreement. If Melania Trump sought to leverage the opinions and judgments of the American public and Trump’s conservative base in order to force a new agreement, perhaps the president has grounds to challenge it.

Even in the midst of a presidency during which salacious information seems to come out constantly, this one will surely be interesting to watch. The Trumps’ situation raises serious questions even for ordinary people and these questions often represent extremely complex issues for the families involved.

In states that permit them, post-nuptial agreements exist to allow people to maintain their marital relationship even while changing it in a way that seems more fair as circumstances change. Ohio, on the other hand, sees post-nuptial agreements as encouraging divorce. Anyone with questions should seek counsel familiar with the nuances of these types of agreements to assess what is specifically permitted and possible in any particular circumstance.

This article originally appeared as a column for the Cleveland Jewish News.

What you need to know about prenups, postnups

By Andrew Zashin*

When it comes to marital finances, usually we think of three major types of contracts between spouses: prenuptial or antenuptial agreements entered into before a marriage, postnuptial agreements in the absence of a divorce/dissolution and separation agreements incident to a termination of marriage in Ohio.

Most readers have likely heard of a prenuptial, or antenuptial, agreement. Also known more casually as a “prenup,” this agreement is used to clarify – before the nuptials – how certain assets and liabilities will be divided if the marriage ends in divorce or upon death. Romantic, right? But it can be a very useful and important tool.

A prenuptial agreement may also specify what spousal support will look like upon a divorce, and how certain assets will be treated upon the death of one party. It is most often used to protect assets that a party brings into the marriage, but it can also be used to protect a spouse against the debt of the other. And, it can also be used to protect the inheritance of children from a prior relationship.

If you are considering a prenuptial agreement, you will want to keep a few points in mind. First, it is important that both sides make full disclosure to the other of all assets and liabilities. This disclosure should be embodied in the document, usually as an attachment. Second, the other side should have a meaningful opportunity to read, review, and understand the document, and to consult with an attorney prior to signing.

It is important that the document be signed of each party’s own free will, without any fraud, duress or coercion. Please do not surprise the other side with a prenup two days before the wedding. Third, the terms of the agreement cannot encourage profiteering from a divorce. Fourth, know that spousal support terms contained in a prenuptial agreement are not necessarily binding if they are unconscionable at the time you are seeking to enforce them.

But what if you failed to get a prenuptial agreement before the marriage? Maybe the marriage is on rocky ground and it seems like a good idea to get some things in writing. Perhaps you want to take some of your premarital money or inherited money and use it to purchase a marital home and you want to make sure you are able to get it back if you divorce. Maybe you want to go into business with a family member and you want to clarify how that business will be treated.

All of those and more are reasons that have prompted couples to think about postnuptial agreements. It may sound tempting to whip up a quick contract that both spouses will sign. After all, a signature is binding, right? Not so fast. You will do much better to document any of these types of events and keep financial records in case they are ultimately needed in a court case, as postnuptial agreements simply are not valid in Ohio.

A notable exception to this rule is an agreement for purposes of separation. Generally used for a settled divorce, dissolution or legal separation, a separation agreement will typically encompass some agreement on all financial terms, including division of assets, debts, and other financial issues, and any ongoing financial support. That agreement will then be enforceable in the divorce court and will be attached to any final decree.

This article originally appeared as a column for the Cleveland Jewish News.

2023-11-10T13:38:11-05:00April 19th, 2018|Prenuptial Agreements|

The Dress, the flowers, the chuppah and – the prenup?

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

Ah, wedding season! Love is in the air! You’ve found the perfect clothes. You’ve found the perfect venue. You’ve designed your chuppah, refined your guest list, and made your meal selections. Only one thing left: sign the prenuptial agreement. Or should you?

While often associated with high net worth individuals, the truth is that a prenuptial agreement can benefit those without millions in the bank, too. Prenups are frequently used to protect wealth that was acquired before a couple marries, as well as family money. These agreements can be used to ensure that children from a prior relationship will be provided for. They can require the giving – and acceptance – of a get (a Jewish divorce), and they can provide that the couple will have any divorce proceedings arbitrated by a beth din (a Rabbinical court) rather than litigated in civil court. Simply put, a prenuptial agreement is a contract that sets forth certain agreements regarding what will happen if the couple divorces, and sometimes also upon the death of one party.

While it sounds terribly unromantic, a prenuptial agreement can be a very important financial planning document for those of all walks of life. Some prenup signers were previously divorced and are entering their second, or later, marriage. Others are on their first marriage, but have accumulated wealth, or even debt, before saying “I do.” Some have children from other relationships and want to protect their children’s inheritance from a new spouse who might otherwise be able to take against their will.

Prenuptial agreements may also contain provisions regarding spousal support. Some may specify in great detail how much support a spouse will be entitled to upon a divorce, and some may specify there is to be no support at all. However, it is significant to note that, if even the remainder of a prenuptial agreement is determined by a court to be binding and enforceable, any spousal support award provided by such an agreement will be evaluated for reasonableness at the time of the divorce, and not at the time the agreement was signed. So if, for example, a party writes the next Harry Potter during the marriage, he or she may be expected to pay spousal support in spite of the existence of a prenuptial agreement providing that none would be exchanged at all.

Having said all of that, not everyone actually needs a prenuptial agreement. The definition of “separate property” is rather clear under Ohio law. In general, separate property is defined as an inheritance received by one spouse, a gift to only one spouse, or property that someone brought into a marriage. And in many, many cases, that separate property retains its “separateness” even without the benefit of a prenuptial agreement. That is, so long as the owner of the separate property can trace it (show where it came from, and show how it flowed from one account or form to another without being mingled with marital property), a divorcing party might expect to walk away with it anyway. So if your premarital property consists of a 401(k) plan or a savings account funded with your bar mitzvah money, it is probably safe.

They say that the best defense is a good offense. If you have any questions regarding how and whether you should protect yourself, it makes good sense to seek advice from an attorney well-versed in these issues so that you may determine whether or not you actually need a prenup to accomplish your goals and to make sure you are getting the protection you intend.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

Seeking to Enforce Religious Agreements in a Secular Court

Often people come to us for divorce consultations and ask our advice about the religious “deal” they struck with their soon-to-be ex-spouse. They want to know whether or not the terms of the deal are enforceable, or, whether they can avoid enforcement of the deal. The separation of church and state is axiomatic in our country, making the enforcement of religious agreements an area fraught with uncertainty both for litigants and their lawyers. Although courts will certainly offer guidance in many situations, it is just as often the case that they find they cannot order an individual to do something related to the exercise of religion.

After looking at prior cases decided in multiple jurisdictions, the most reasonable conclusion we can reach is that the effective lawyer is one who bases his or her arguments on secular contract law and “neutral principles,” rather than on religious ones. But, generally speaking, the answer is “no,” such agreements are not enforceable in civil courts. People can change their minds about religion and the religious deals they make. Courts are unable to interfere with a person’s changed religious preference. This means that family law attorneys often find have to help their clients sort through the consequences of such a change. That is not to say that religious agreements are never enforceable. A religiously based prenuptial agreement, for example, may be deemed valid.

Generally speaking, prenuptial agreements are governed by contract law. But the laws regarding prenuptial agreements are frequently stricter than those governing other types of contracts, and certain formalities usually must be followed. For example, in the Arizona case of Victor v. Victor, 866 P.2d 899 (Ariz Ct. of App. 1993), the Ketubah (a Jewish prenuptial agreement) satisfied the formality requirements for a valid prenuptial agreement, in spite of its religious beginnings. Nonetheless, the court held that it was not specific enough to constitute an entirely valid prenuptial agreement.

Often times, promised payments or other secular terms (e.g. simply appearing at a religious tribunal) either in a Mahr, in the Muslim faith, or a Ketubah, in the Jewish faith, give rise to an enforceable contract. Such was the case in the New Jersey and Florida matters of Odatalla v. Odatalla, 810 A. 2d 93 (N.J. Super. Ct. 2002) and Akileh v. Elchahal, 666 So. 2d 246 (Fla. Dist. Ct. App. 1996).

Since prenuptial agreements must satisfy certain prerequisites, a “contract” that is merely implied rather than being formally recorded would probably not be considered valid. The best practice is to video tape the execution and formalization of the religious contract just as one might video tape a prenuptial contract. In the recording it is essential to underscore the religious aspects that dovetail with the secular law.

Ultimately, whether a religious contract is likely to be enforced by a civil court depends upon whether the civil court is required to determine religious law or to perform a religious act. There is, perhaps unsurprisingly, conflicting authority on this issue. However, the best argument is one that employs secular principles, supports public policy, does not require the civil court to make a religious determination, and will lead to a result that is in line with prevailing law.

Sounds like a tall order? Perhaps… Consider the following cases:

In Victor v. Victor, supra, the court held that the Ketubah did not mandate that the husband give his wife a Get (a Jewish divorce) and that by interpreting the Ketubah, the court would be overstepping its authority and assuming the role of a religious court.

In Steinberg v. Steinberg, 1982 Ohio App. LEXIS 12314 (Cuyahoga Cty. Ct. of App 1982), the court held that it could not enforce the provision of a divorce decree which mandated that the parties would fully cooperate with each other in obtaining a Get. The court held that, when parties to a separation agreement include an obligation to perform a religious act, such requirement is unenforceable either under contract law or a divorce decree.

In Zawahiri v. Atwattar, 208 Ohio App. LEXIS 2928 (Franklin Cty. Ct. of App. 2008), the trial court held that an Islamic Mahr which required that the husband pay a sum of money to the wife could not be enforced since it required the performance of a religious act.

In Aflalo v. Aflalo, 295 N.J. Super. 527 (Super. Ct. of N.J. 1996), the court held that a husband could not be required to perform the religious act of giving his wife a Get.

But compare those with the following cases:

In Avitzur v Avitzur, 58 NY 2d 1D8 (NY Ct. of Apps. 1983), after the husband obtained a civil divorce from his wife, he brought action against her to compel her to appear before a rabbinical tribunal as she had previously agreed to in a Jewish divorce document signed prior to the marriage. The trial court dismissed the action, but the Court of Appeals reversed. The appellate court reasoned that nothing in the law or public policy prevented judicial recognition and enforcement of the secular terms contained in a religious marriage agreement. The husband was not compelling the wife to obtain a religious divorce. Instead, he sought to enforce the parties’ agreement to appear before the tribunal. Therefore, the court was merely performing a secular functionof enforcing the parties’ agreement; it was not determining any religious law.

In Odatalla v. Odatalla, supra, the court enforced a provision in a Mahr requiring a $10,000 payment because the religious contract met the requirements of a contract in New Jersey. Interestingly, the negotiation of the Mahr was videotaped so its validity was relatively easily determined. The husband’s argument that the payment’s postponed nature made the provision unenforceable was rejected. The term regarding the postponed payment was likened by the court to a promissory note which the wife could demand at any time. Approving of the use of simple contract approach to resolve dispute, the court stated: “… is the most consistent with the character of the Mahr under Islamic law and with American notions of equity and justice.”

What all of this means – to both the practitioner and the client trying to either enforce or invalidate a religious agreement – is that before our civil court system is likely to enforce a religious contract, it will first determine whether or not the enforcement will require a determination and enforcement of religious law, or the requirement to perform a religious act. If the court is not required to perform a religious act then the contract may be enforced. Thus, it appears that the enforcement of contractual provisions (i.e. for obtaining a Get, as in Avitzur) may be considered as requiring the performance of a religious act in violation of the First Amendment, but an agreement to resolve martial disputes in a religious forum may be enforceable.

How to get a religious ‘get’ in a secular state

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

The issue of the agunah – a woman whose husband refuses to give a get (Jewish writ of divorce) that must be offered by her husband – has garnered a good bit of attention in Israel. Earlier this year, it was reported that the Great Rabbinical Court in Jerusalem upheld one man’s indefinite prison sentence. He has been imprisoned, and will continue to be imprisoned, for so long as he refuses to offer a get. As an aside, he has been in prison for more than 10 years.

In the United States, the issue was recently in the news in relation to Tamar Epstein, the nation’s most famous agunah. Separated from her husband, Aharon Friedman, tax counsel for the U.S. House of Representatives Committee on Ways and Means, in 2008 and civilly divorced in 2010, she remains even now “chained” to the man who refuses to grant her a get.

The issue is a bit controversial, with activists and nonprofit groups such as the Organization for the Resolution of Agunot calling get refusal a form of domestic abuse, while supporters of Friedman said they believe Epstein’s alleged alienating behavior in the associated custody dispute more than justifies his actions.

People have reasons for not agreeing to a get. Some refuse based upon their interpretation of their religious and moral obligations. Some refuse out of spite. Some are just plain nuts. But far and away the most common reason for get refusal is to provide leverage to obtain a better property and/or custody arrangement than civil law might otherwise allow. Documented cases show unscrupulous husbands refusing the get unless they get outrageously one-sided settlements.

Most problematic is what to do when a get is refused. Divorces fall under the purview of the state courts and, more specifically, the common pleas court in the county of the parties’ residence. But the strictly secular nature of the court system makes it difficult – if not impossible – for a court to order someone to submit to a religious divorce.

One of the easiest ways to obtain a get is to contract for it before the marriage. Put it in a prenuptial agreement. The law is continuing to evolve in this area, but even if a civil court cannot order someone to offer or accept a get, it may be able to enforce the terms of a contract in which two parties are bound to do these things.

Even better is to agree to submit a din torah (judgment) matter to the Beth Din of America. By agreeing to proceed in this manner, the parties can resolve all issues of the get – including financial and custody matters – through mediation. Mediation is a facilitated process of negotiation intended to reach a settlement in all areas of conflict between the parties. The Beth Din also permits the parties to submit to arbitration. In that situation, all issues in dispute (except for parenting) can be presented to a panel of rabbis, in lieu of a secular judge or magistrate, for a binding resolution.

The concept of a prenuptial agreement is controversial for many reasons, both religious and secular. On a personal level, it is uncomfortable to consider the possibility of divorce at the same time you are planning your happily ever after. On a religious level, many rabbis are hesitant to encourage their congregation to consider such agreements because they represent such a big paradigm shift from traditional marriage. However, on a practical level, if a get is important to you – and to your children – it is a wise alternative to avoid trouble down the road.

This issue is a unique one, but one of paramount importance to a woman who may become an agunah, her future spouse and children. And wishing won’t make it go away. The complexity of this issue extends far beyond scope of this column; however, prenuptial agreements like the Beth Din form would resolve a large number of agunot cases. And this document solves the issue in a very tangible way. With this document, get refusal can result in very real civil ramifications, including monetary penalties enforceable in civil courts.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

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