What are some criteria that would allow a spouse to file for divorce in secular court?

Question

Halachically, from my understanding, a spouse cannot file for divorce in a secular court without permission from Bais Din.

Are there any specific reasons spelled out, besides explicit permission from Bais Din, where such a thing would be permitted?

Answer 1

There are two things going on here -- the religious divorce (or Gett), and then how they'd choose to split their property.

Let's deal with the latter one, as it's actually more straightforward. As far as halacha is concerned, it's no different than two partners who are dissolving a joint business and trying to figure out how to split everything up. For them to go to secular courts when they could have gone to Jewish courts is prohibited. However, if they choose to settle on their own -- or go to mediation, and even arbitration -- that's fine. (The point is they're not using a non-Torah system that can force people against their will.)

Alternatively, if the defendant refuses to use a beis din, refuses to use a beis din deemed acceptable to the plaintiff's beis din, or poses a situation whereby the beis din fears for their own safety, then the plaintiff's beis din can authorize the plaintiff to instead go to courts.

Here's the very last section of Maimonides' Laws of Sanhedrin (high courts):

כָּל הַדָּן בְּדַיָּנֵי עַכּוּ''ם וּבְעַרְכָּאוֹת שֶׁלָּהֶן אַף עַל פִּי שֶׁהָיוּ דִּינֵיהֶם כְּדִינֵי יִשְׂרָאֵל הֲרֵי זֶה רָשָׁע וּכְאִלּוּ חֵרֵף וְגִדֵּף וְהֵרִים יָד בְּתוֹרַת משֶׁה רַבֵּנוּ שֶׁנֶּאֱמַר (שמות כא א) "וְאֵלֶּה הַמִּשְׁפָּטִים אֲשֶׁר תָּשִׂים לִפְנֵיהֶם" לִפְנֵיהֶם וְלֹא לִפְנֵי עַכּוּ''ם לִפְנֵיהֶם וְלֹא לִפְנֵי הֶדְיוֹטוֹת. הָיְתָה יַד הָעַכּוּ''ם תַּקִּיפָה וּבַעַל דִּינוֹ אַלָּם וְאֵינוֹ יָכוֹל לְהוֹצִיא מִמֶּנּוּ בְּדַיָּנֵי יִשְׂרָאֵל יִתְבָּעֶנּוּ לְדַיָּנֵי יִשְׂרָאֵל תְּחִלָּה. אִם לֹא רָצָה לָבוֹא נוֹטֵל רְשׁוּת מִבֵּית דִּין וּמַצִּיל בְּדַיָּנֵי עַכּוּ''ם מִיַּד בַּעַל דִּינוֹ

One who seeks justice through the gentiles' courts, even if their laws were the same as those of the Jews, is wicked, and as if he cursed out the name of God and raised his hand against the Torah of Moses our Teacher. Exodus 21:1 says these are the civil laws you shall place before THEM [the Jews], implying not the non-Jews. If the non-Jews have power and the defendant is strong and claiming through the Jewish judges will not succeed, then he should first summon him through the Jewish system; if the defendant refuses to come before the Jewish courts, then the plaintiff obtains permission from the Bais Din, and obtains what is his through the non-Jewish courts.

Practically today in the USA, rabbis advise to first handle the Gett when it's clear the marriage is over, and then figure out the rest of the settlement. After handling the Gett, they will say -- halacha says you should not go to court to handle the civil dispute, but we can't force you to use us. We can handle this in a manner that's faster, quieter and cheaper, would you like us to do so? If not, have a nice day. However if a couple first battled it out in court and then went to the Beis Din for a Gett, they will handle the Gett and not stick their noses into the civil dispute.

As above -- there's no prohibition to settle out-of-court, or agree to any form of mediation or even arbitration. Another exception: the Gemara says if one party insists on going to court and refuses to use Beis Din, then you meet them there -- even if halfway through they get nervous and offer to settle.

But generally the conversation is supposed to start at the Beis Din, who will authorize going to court when called for. Rabbi Yonah Reiss of the Beth Din of America tells of a case involving settling some inheritance (sure, no problem) where he quickly realized the deceased was likely killed by a Mexican cartel. This was not a job for the Beth Din of America, this is a job for the NYPD or FBI! In the US, the Beis Din functions legally as an arbitration panel -- generally speaking, anything that requires power they don't legally have (e.g. a restraining order, anything criminal at all), they will authorize people to go to courts. But it's supposed to start with the Beis Din giving that authorization.

As above -- there can be disputes as to what's called a proper Beis Din. In one case the plaintiff said "you pick a rabbi, I pick a rabbi, the two of them pick a third." (That's a time-honored suggestion if they can't agree on which Beis Din to use.) The defendant insisted on a rabbi who also worked as a professional Beis Din litigator on the side. The plaintiff's Beis Din found that unacceptable -- there's at least the appearance of conflict-of-interest -- and when the defendant refused to produce any other names, the plaintiff's Beis Din authorized him to go sue in court.

Again: it starts with a conversation with the rabbis. Unless people want to settle, or there's a violent crime happening right now. (Someone breaks into your house with a gun, you call the police, not the rabbis.)

That's just about money. Or even childcare arrangements.

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As for the halachic status -- there is nothing a secular court can declare that can turn a halachically-married woman into a single one. Either she needs a halachic Gett, or in very rare cases rabbis may determine that the entire marriage was under massively false pretenses and thus void from the get-go. (Or even easier, if you can show the husband wasn't Jewish.)

There are complex cases about involving the secular courts to compel the defendant to go through the halachic process, but those also have to start with a conversation with the rabbis. As seen below, this is because if non-Jews force him when halacha wouldn't necessarily call for it, the Gett is ruined. (Practically, state courts in the US don't want to get into questions of religious law, so they will just ask "Are the rabbis satisfied? We just need a thumbs-up, thumbs-down.") This does get very complicated; for instance in the State of New York, to obtain a civil divorce you have to sign an affidavit that you've already removed all ethical obstacles from the other person remarrying -- which means giving a Gett. (The argument is that it's not "compulsion" unless you're taking something away from someone. Here, the state refuses to grant a new civil divorce until/unless it's done. Even this law is frowned-upon by some serious rabbis.)

The problem is described at the end of Maimonides' Chapter Two of Laws of Divorce:

. וְכֵן אִם הִכּוּהוּ עַכּוּ''ם וְאָמְרוּ לוֹ עֲשֵׂה מַה שֶּׁיִּשְׂרָאֵל אוֹמְרִין לְךָ וְלָחֲצוּ אוֹתוֹ יִשְׂרָאֵל בְּיַד הָעַכּוּ''ם עַד שֶׁיְּגָרֵשׁ הֲרֵי זֶה כָּשֵׁר. וְאִם הָעַכּוּ''ם מֵעַצְמָן אֲנָסוּהוּ עַד שֶׁכָּתַב הוֹאִיל וְהַדִּין נוֹתֵן שֶׁיִּכְתֹּב הֲרֵי זֶה גֵּט פָּסוּל. ... לֹא הָיָה הַדִּין נוֹתֵן שֶׁכּוֹפִין אוֹתוֹ לְגָרֵשׁ וְטָעוּ בֵּית דִּין שֶׁל יִשְׂרָאֵל אוֹ שֶׁהָיוּ הֶדְיוֹטוֹת וַאֲנָסוּהוּ עַד שֶׁגֵּרֵשׁ הֲרֵי זֶה גֵּט פָּסוּל הוֹאִיל וְיִשְׂרָאֵל אֲנָסוּהוּ יִגְמֹר וִיגָרֵשׁ. וְאִם הָעַכּוּ''ם, אֲנָסוּהוּ לְגָרֵשׁ שֶׁלֹּא כַּדִּין אֵינוֹ גֵּט.

If the non-Jews hit the recalcitrant husband, saying do what the Jews tell you!, thus the Jews were pressing him via non-Jews until he gives the divorce, that is a valid divorce. However if the non-Jews forced him of their own volition -- if it was in a situation where halacha would call for [the Jews to] force him -- the Gett is flawed [at the rabbinic level]. In a situation where the law would not demand him to give a Gett: if the Beis Din was mistaken or consisted of [ignorant] laypeople and they forced him to give a Gett, the Gett is flawed ... but if non-Jews forced him in a situation where [Torah] law does not call for compulsion, the Gett is considered completely nonexistent.

Lastly (for good measure), if either party feels that the rabbinic panel involved in the process is not a good fit, there are processes to propose a different panel.