- This topic has 12 replies, 9 voices, and was last updated 14 years, 2 months ago by .
-
Posts
-
Al pi halacha, is it permissible for a party to a pending divorce to utilize a secular (goyish) court for any relating issues i.e. assets disposal, child custody, alimony, etc.
And can any of those (or other) issues be adjudicated based upon secular law, when halacha specifies how it is to be done? i.e. halachic specification how to distribute marital assets, custody issues, and alimony (or lack thereof).
If a party wrongly brings such issues to a secular court instead of a beis din, are they considered a moser?
I’m guessing this is just out of curiosity.
It’s not permissible. Although I believe the appropriate term for someone who does go that route is a moredes.
If the beit din approves it is permissible.
And in any case the secular court has to approve any settlement from the beit din anyway.
I don’t understand the question. Monetary issues must be decided in beis din, not secular court. Permission to utilize secular courts must be granted by beis din in all situations, not just monetary issues that arise during divorce proceedings.
Someone one who utlizes secular courts without permission of beis din is called someone in halacha. Just don’t remember to term. Halacha does view monetary “gains” via secular courts as gezel IF no permission to utilize the courts was granted by a beis din.
The question is void of a lot of facts. Obviously it is best to do whatever can be done in Bais Din. However, if one of the parties are non-compliant to negotiate in Bais Din, then there is no choice and the Bais Din will usually give a Heter to go to court.
People try to hide behind Halachah and say the side going to court are going against Halachah. In reality, they are the ones who avoid the Bais Din and think they can claim to be the righteous one by bad-mouthing the one going to Bais Din.
Bottom line: You need to know the facts. Obviously, first it must be worked out in Bais Din. However, if Bais Din sees it fit, they will give a Heter to go to court. Bais Din does not have the authority to force compliance that secular courts do.
I have been learning Jewish Civil Law (Choshen Mishpat) for about 15 years and my Chavrusa is a Rosh Kollel Choshen Mishat in Yerushalayim. I am also a divorce survivor. Every Halachic authority from Moshe Rabbeinu calls my ex-wife, a secular court aficionado, a “Rasha” except the Aruch HaShulchan. The Aruch HaShulchan calls her a “Rasha Gamour” (complete Rasha). See Choshen Mishpat Chapter 26 in all relevant Seforim.
1. It is completely forbidden to take a monetary dispute to secular court without the permission (preferably written) of a Bais Din.
2. The only reason why it is not necessary to obtain the permission of a Bais Din to obtain a divorce decree from a secular court is because in (most) western countries marriage and divorce are under the absolute authority of the secular court system.
3. My ex-wife went to a prominent rabbi and asked, “Is it permissible to go to secular court to obtain a divorce?” He said “Yes.”
4. She interpreted that to mean she had Halachic permission to litigate any issue she wanted to. The deceived rabbi declared, “When I told her she could go to court, that was just for the divorce decree. Any other issues have to be taken to Bais Din.”
5. Because of her lawless behavior, the Bais Din declared her in contempt four separate times. That might be a New York record. At one point she sued me for almost $1,000,000 of support and related financial issues even though at the time I was earning about $40,000 a year with no significant assets and no wealthy relatives. After years of separation, I told her that I wanted to give her a Get. She responded that she would refuse to accept it.
6. There could be some circumstances when a party filing a motion in a divorce case in secular court would be a Moser. Certainly, one would be a Moser for filing a criminal charge (domestic violence) against someone (your spouse) when the charge is completely false.
7. The Halachic requirement that all divorce issues (other than the decree itself) be litigated in Bais Din includes all issues including alimony, child custody, child support, property distribution, visitation, … absolutely every issue except the decree itself.
8. However, as with every important life decision, the selection of a Bais Din requires some research and careful consideration. Ask some respected rabbi for his recommendation. I advise everyone to go to a professional, standing Bais Din. Sometimes divorce candidates who go to an Ad Hoc Bais Din (ZABLAH) get victimized a second time. Professional Bais Dins, on the other hand, are professional and are unlikely to commit outright, incontrovertible Torah violations (Issurei D’Oraisa) in their handling of the case.
9. A Bais Din will generally provide a party written permission to litigate in secular court when either 1) no Bais Din can handle the case or 2) the other party has demonstrated, implicitly or explicitly, his/her unwillingness to participate in a Din Torah.
10. Good luck to you. Do not listen to the advice of your Yetzer Hara and litigate financial matters and custody in secular court. Act like a Torah Jew.
EDITED
frum – I agree with what your points, but doesn’t any party to any Bais Din case have a right to insist on ZABLAH?
Also, shouldn’t the Bais Din only authorize obtaining the decree after the completion of all related proceedings in Bais Din, with the proviso that it be entered as an agreed case with the results Bais Din decided?
my friend –
1) Outside of some closed communities (like KAJ in Washington Heights, Lubavitch in Crown Heights, Belz, Bobov, etc.) both the plaintiff and the defendant have the right to insist on a ZABLAH (CM 3:1, Rema)
2) Each standing Bais Din probably has its own policy on this matter. Your thoughtful recommendation/suggestion/observation only works when both sides sign the arbitration agreement. No Bais Din should ever allow one party to prevail or gain an advantage simply by “stalling.”
My wife and I signed the Rabbinical Council of America prenuptual agreement. It specifies that if chas v’shalom our marriage were to end, all matters regarding separation and divorce are to be decided by the Beit Din of America. The RCA prenup is accepted by the overwhelming majority of poskim as well as by secular courts in the United States, and the Beit Din of America consists of outstanding, widely respected talmidei chachamim. Signing the prenup means that neither of us would be able to go to secular court and neither of us would be able to shop for a corruptible beit din. If more couples would sign the RCA prenup we would not have the abuses of halachah described here. I commend Rabbi Mordechai Willig for developing the RCA prenup; it has kept many women from becoming agunot and has protected many men and women from the temptation to violate halachah by using the secular court system inappropriately.
May none of us need Beis Din as our marriages will be blessed with peace, love and happiness.
EDITED
Frum not crum -Since she went to court already -why don’t you hire a good lawyer and try to turn the tables? There is even a “Get” law in NY state -maybe you can get her to take the “Get” with going to state court. I don’t know who advised you, but once they break halacha, you can also go to secular court.
- You must be logged in to reply to this topic.