Equitable Distribution According to the Torah and Talmud

Daniel Retter, Esq.

When a marriage dissolves, in addition to the personal, familial, and custodial issues between husband and wife, normally most of the pain and acrimony revolves around economic issues, including distribution of assets, alimony, child support and future maintenance. Under the laws of the State of New York, and many other jurisdictions, these economic issues are generally dealt with pursuant to the “equitable distribution” laws, which have become painfully familiar to many Jewish couples undergoing divorce.

However, couples who are undergoing the trials and tribulations of divorce, should be aware of the “equitable distribution” laws prescribed by the Torah, and the public policy “Takanos” enacted by the Talmudic Sages. If known to the parties in advance, it may save years of expensive secular litigation, by having these economic issues resolved according to Halacha, by a competent Rov or a trustworthy Bes Din. What follows is a summary of these Torah laws and Rabbinical Takanos, which are designed to familiarize the reader with so called “antiquated” Talmudic language, yet which are very applicable and appropriate in the 21st century, once again evidencing the eternal sanctity and wisdom of our Torah and Sages.

Many Torah and Talmudic “equitable distribution” laws and Takanos are described in the Torah and Talmud using unfamiliar terms, which need to be expressed and explained in order or their meaning to be clear, so as to understand their applicability to our times.

Kesuba – Literally “written document”.

This word has three meanings.

The first refers to the Torah’s requirement, that an eligible wife receive, at the termination of her marriage, whether by divorce or the husband’s death, an amount of money sufficient to support herself for one year after the termination of the marriange. The Sages have estimated stoday that this is an amount equal to $10,000, which is 100 or 200 zhuvin, which is the entitlement of every Jewish wife, (depending on her previous marital “state”, at the time of her marriage), which is written into the Kesuba contract. In addition, the wife is entitled to receive “additional” Kesuba amounts called “tosafot” (literally, additional) Kesuba, if the husband wished to add to his Kesuba obligation.

The second Kesuba expression refers to property that is given as a dowry to the son-in-law, incorporated by reference in the Kesuba, and referred to as Nechsi Tzon Barzel, as opposed to Nechsei Melog, which is returned to the wife at the time of divorce, or children in the event of the husband’s death, as both terms are described below.

Hence, the wife is entitled to receive the basic Kesuba payment, which may be supplemented by Tosfos Kesuba, an indefinite amount of money negotiated between the parties prior to marriage. These Kesuba payments are due the wife or her children upon divorce or the  death of the husband, provided that she has not taken any steps to disqualify herself from the Kesuba, such as being adjudicated by the Bes Din as a “moredes”, ( rebellious wife), a term explained below.

The third Kesuba refers to the lump sum of money or twenty five years of support that a widow is entitled to collect upon the demise of her husband. This provides that if the widow remains in the home of the husband or even in the same town, her late husband’s children, whether from her husband alone or their mutual children must support her for twenty five years, or until she remarries or moves away. In lieu, the widow may demand a lump sum of money that is negotiated between them.

Nechsei Melog – Literally, this means the “properties of plucking”.

This term describes any property that a wife receives (usually from a parent), prior to, or during a marriage, which property is not specifically incorporated into the Kesuba document. This property may come into a wife’s possession through an inheritance, damages from an injury, or a gift from any person, including but not limited to the wife’s father,  even as a  post wedding present. (This does NOT include monies earned by the wife during the marriage, which will be discussed further on in this article.)

The wife retains legal title to this asset throughout the marriage, but there are certain rules concerning the dividends or “fruits” of the property. During the marriage, the husband is entitled to use (“pluck”) the dividends or “fruits” ( “properties of plucking”) as he deems fit, and the husband need not give an accounting of these profits to his wife. However, upon the divorce of the parties or the death of the husband, the principal of this property must be returned to the wife, no matter the remaining value, or condition, whether it has increased or decreased, due to the wise or foolish investment policies or the business skills, of the husband.

Imagine a nursing home or apartment house or any other asset which is transferred to the wife in contemplation of marriage, or even after the marriage, as an unearned asset. The husband may derive only the income ( in Latin “usa fructa”),  from this asset which he must use to support his wife under the terms of the Kesuba. The title or principal of this asset never leaves the wife’s domain, and the husband can not sell or mortgage this property, as he has no legal title to the property. If he were to lease the property, the lease woud terminate upon his death. Once the marriage is terminated, whether by divorce or the death of the husband, the principal of the asset, which has never left the ownership of the wife is now “returned” to the wife, only in the sense that the ‘fruit” or income from this asset now belongs to the wife once again. Therefore, if the asset is worth 10 times more at the time of divorce or death, the husband or his estate must return the asset “as is’, with its increased value. Similarly, if the value has decreased to even “nothing”, the husband or his estate is not obligated to make up the deficiency.

Nechesi Tzon Barzel – Literally means “properties of iron flock”.

This term refers to assets given to the wife only in the form of a dowry, before or during the marriage and properly inscribed in the Kesuba or as a supplement to the Kesuba, similar in certain respects to the “Nechsei Melog” described above. However, Nechesi Tzon Barzel ( lit. property as strong as “flocks of brass”, is different from “Nechsei Melog” in one important respect. That is, in the event of divorce or the death of the husband, the husband, or his estate, must return the dowry to the wife, but the value to be returned is no more nor less than the original initial value of the dowry at the time of the marriage, no matter what the state of the asset is at the time of his death, or the divorce of the parties.

As example would be an apartment house given to a wife and son-in-law as a dowry, which upon divorce would revert back to the spouse or the spouse’s father. However, the value of the asset must be the same as when it was recived. Therefore, the building if the building is worth 10 times more at the time of divorce or death, the husband or his estate must only return the initial principal value, to the father or widow. If the value has decreased, the husband or his estate must make up the deficiency.

Moredes – Literally means, a “rebellious” wife.

This is a term which describes a wife who has been judged by the Bes Din to have been a rebellious wife. This would include:

  • not providing marital relations with her husband in a reasonable manner;
  • not looking after the children;
  • not keeping a kosher home;
  • not observing ritual purity;
  • intentionally embarrassing her husband publically to hold him out to public ridicule;
  • in all manner acting in a way contrary to religious law and generally showing disrespect to her husband.

If a wife is adjudged to be a Moredes, the consequences may be very severe. A “Moredes” is not entitled to collect her Kesuba and even more consequential, she may be divorced against her will contrary to Rabbeinu Gresham’s edict that a woman may not be divorced against her will. A bes din will authorize the issuance of a Heter Mae Rabbonim ( 100 rabbis dispensation) allowing the husband to deposit a divorce document ( get), into the Bes Din’s registry, and remarry.

Ma’aseh Yadeah – Literally “the work of her hands”.

This refers to the earnings of a wife during the marriage. According to the Torah, a man is obligated to support his wife in the manner to which she is accustomed, or in to the manner to which he is accustomed, whichever is higher, provided the husband has the wherewithal to do so. The Sages enacted a Tekana that as a “quid pro quo” to the husband supporting his wife, (in order not to have animosity between the husband and wife), all earnings that she brings home must be turned over to the husband.

This means, that if the wife did not turn over her earnings to her husband during the marriage and then there is a divorce, unless the wife can prove that either of them waived their respective rights to his supporting her, or the wife waiving her rights to being supported, in lieu of her earnings being turned over to him. If there is no waiver by either of them, he may be entitled to an accounting of her earnings throughout their marriage, even if his contribution to her support was meager. This would entitle him to any earned income from her business, lottery winnings, gambling winnings, or any other forms of taxable or untaxable earnings derived from the efforts of the wife. The husband may waive these earnings if he told her that he will not support her, and that she can keep her own earnings and support herself with her own earnings. Also, any actions on his part which confer the same interpretation.

For example, the wife is a successful business women and the husband learns in Kolel. If he uses his meager Kolel stipend to support the household including the wife, then all of her monies earned must be eventually turned over to the husband, unless waived by him, or the wife. The wise wife who out earns her husband by a substantial amount would sign a document and give it to him, which says in effect, “I don’t want your support, and I won’t give you my earnings.”. The Halacha accepts this waiver by the wife. (Jewish law).

Since the Torah and Sages expected the husband to be the sole breadwinner, the idea of the wife as the primary provider must be spelled out in advance, rather than defaulted to halacha, which presumes that the husband will support the wife and therefore the wife’s earnings may be claimed by the husband. There are questions of waiver by the husband if he did not claim these amounts all of the years of the marriage, and at the time of divorce he suddenly asks for this money. Of course this article is not proper place for a solution to these very factual sensitive questions which only your Orthodox rabbi is qualified to answer.

However, a Nobel Prize type award, where no direct effort has been made by the wife, would probably not be considered Ma’aseh Yadeah, but rather her “findings” to be discussed soon.

Metzi’asah – Literally “her “findings”.

This refers to an object which a woman finds in the street which must be turned over to the husband and as a “quid pro quo” the husband is obligated to pay for her release from captivity, which in today’s terms would probably include bail or kidnapping.

Benin Nokvain – Literally “female children”.

This is the Aramaic term for female children, which is term is written into the Kesuba. This refers to the Sages’ Takana incorporated into the Kesuba wherein the husband agrees that if he dies first, that his estate which is inherited by his sons, will be placed in a trust, to be utilized for the support of their minor daughters until they leave the house or marry. Therefore, in the event that the estate is not sufficient enough to generate income to support the surviving female orphans, their brothers are compelled by the halacha to work or even beg to support their sisters, before they can use any of the estate’s money. This Takana also applied to step or half sisters who are also to be supported by their step or half brothers. This allows a woman who has young daughters from a previous marriage who marries a second time, to be assured, that in the event of his death, her children will be provided for, from his estate, or by his male children working to support her daughters.

The same Takana applies to the requirement of the husband’s sons to support their step mother after the husband has died.

This form of support may be considered the modern day equivalent of “child support” at least for female minor children. A father is always obligated to support his male children until they are able to work and so there is no special Takanah”

Perutah d’Benin Dichrin – Literally, “ the perutah ( penny) of the male sons”.

This Takana refers to the enactment written in the Kesuba to prevent the wife’s father’s dowry to his married daughter, from falling into the hands of his son-in-laws children, ( his step grandchildren) who have a different mother.

This occurs when a father gives a dowry to his daughter on the occasion of her wedding. He expects, that in the event of the death of the daughter, that HER children, his grandchildren, will eventually enjoy this asset, after their father, his son-in-law, who always inherits his wife, passes away.

The problem that the Sages sought to avoid was in the instance that the wife dies first and the husband remarries. His future children from a second wife and his current children from his first wife (fraternal half brothers), who passed away, are now entitled, according to Torah law, to inherit together equally upon the eventual demise of their common father. Since the first wife’s father’s dowry is now in his son in-law’s estate, the children of both marriages will have to divide this dowry equally.

The Sages were concerned that a father would hesitate to give a dowry to his daughter, for fear that the dowry would end up as the property to this son in laws children from a wife who is not his daughter. The problem is, that according to Torah law, every son from the father is entitled to inherit his equal share no matter from where the father received his asset, even by inheriting the assets from his first wife, who was not at all related to them.

To forestall this problem, the Sages enacted a Takana providing that the assets in the father’s estate that were derived from the dowry of the first wife’s father, do not fall into the general estate of the father. Instead, these assets fall exclusively to the sons of the first mother, in accordance with the grandfather’s dowry conditions, and then after that is implemented, the balance of the estate is evenly divided among all of the children of the father, regardless of who their mother may have been.

If this is the ONLY asset of the father, the sons of the second wife are given a perutah, ( a penny), so that the Torah law of inheritance from one’s father is carried out to the letter if not the spirit of the law. This is called “Peruta Benin Dichrin.

SUMMARY

Once it has been established that the spouse or children have an entitlement to a particular property depending on its classification, it then must be determined what sort of lien applies to the real and personal estate of the father, or husband, to be enforced and collected by the spouse and children as the case may be.

There are many questions and responses amongst the Rishonim and Achronim which take into consideration the classification of the assets, and of course this article is not meant to act in any way as a decisor relating to these terms.

A review of these concepts will immediately reveal that there is a rational and fair way to divide up the assets of the couple, with the concept that any monies that the husband has earned will typically never inure to the benefit of the wife, since strictly speaking, there is no “equitable distribution”, as that concept is referred to under N.Y. law. However, any monies that the wife brought into the marriage are retrievable by her, in the event of marital discord and ultimate termination.

There is no concept of alimony per se in the event of divorce, as opposed to a widow’s support which is very much the entitlement of the wife against even her step children. However, as indicated before, there is a very strong enactment concerning child support for the daughters in the Kesuba.

In my experience, women are typically afraid that if a Bes Din applies Halacha that they will end up much worse off, then under secular “equitable distribution” rules, and therefore, they are reluctant to submit the economic issues of the marriage to Bes Din for binding arbitration according to Halacha.

I disagree! If a woman knows prior to her marriage exactly what the status of her property rights are, and if, for example, she were a professional woman, or expects to be have a professional career, she may advise her husband that her earnings will be kept by her, in lieu of support and maintenance that the husband gives her during the marriage.

Also, an exact definition of what property constitutes Melog and Barzel, as well as ascertaining from your local Orthodox rabbi what other steps a woman must take to protect herself in the event of death or divorce, are steps to be taken prior to marriage.

Since it is hard to expect that a young Orthodox couple will even want to negotiate this sort of pre-nuptial agreement, it would be recommended that a panel of eminent rabbonim draft a model pre-nuptial agreement which not only deals with support in the event the husband defies the Bes Din, but also clarifies some of the questions raised in this article, particularly relating to earnings of the wife, and support by the husband during the marriage, as well as other matters that come to the force during a divorce or estate situation.

Adequate steps can be taken prior to marriage to ensure that both parties are protected.

What must be stressed however is that none of these halachic principals are of comfort to either party if both parties don’t have complete trust in the Bes Din. Therefore, it is mandated upon the Bes Din to not only act in an impartial manner, but also to avoid the perception of favoring the man over the woman (which many women complain, is the case) and to avoid acting in a manner which will cause either of the parties to feel a loss of confidence in this Bes Din system.

If this trust is lacking, the couple would rather spend years and years, and hundreds of thousands of dollars in court, rather than to submit themselves to a system which they believe to be less than honest.

The Torah and Rabonim have given us wonderful tools in which to guide our lives and we only need apply them in an honest manner to minimize the strife and adversity that is found in most divorce situations.

With the above definitions, it should be simpler now for the husband and wife to take stock of their assets and estimate what each will end up with after the marriage is terminated.

It is my wish that divorce and acrimony be reduced through the honest and intelligent application of the halacha described above.

 

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