Monday, June 26, 2006

RCA Prenup - I

[Note: Post has been re-written]
Gil has a post over at Hirhurim discussing the RCA prenup and whether its enforceable in court. Though I have yet to find a case on point, I did find this:

In re Marriage of Goldman, 196 Ill.App.3d 785, 143 Ill.Dec. 944 (Ill.App. 1 Dist.,1990)

Annette and Kenneth Goldman were married on May 27, 1979 in a Reconstructionist Jewish ceremony. In 1984 Kenneth filed for divorce and requested custody of their children, Shoshana and Daniel, aged 4 and 2, respectively. Annette, who had become Orthodox soon after her father passed away, insisted on an Orthodox Get, so that she could get remarried.

She argued that the ketubah was a prenup contract. That, coupled with the fact that Kenneth had given his previous ex-wife an Orthodox Get led the court to conclude that a ketubah was not just artwork, but an actual contract.

The court ordered Kenneth to either give a get, authorize someone to give it, or appear before the CRC and authorize them to issue a get.

The court held that being involved in the ketubah did not enter the court into religion. Citing the expert testimony , including that of R. Gedaliah Schwartz, the court said that marriage and divorce in Jewish law are secular matters. Jewish law is a full set of law, religious and secular. Essentially, the ketubah was a prenup, mandating that the husband give the wife a Get.

Whether the RCA prenup would be enforceable or not is a different question. Damage clauses in contracts are limited to damages, not punishments. Where damages are hard to ascertain, we allow for liquidated damages, the contract sets out the damages. An example that almost everyone is familiar with is a house contract, where, upon default, the seller can keep the downpayment. Why? Because damages in those situations are difficult to ascertain, and its easier to use a liquidated damages clause.

Does the $150/day support constitute liquidated damages, or is it too high? I have yet to see the question addressed, and will do more research on the matter over the next week or so.