TLIK: As I mentioned earlier I agree with your general view and approach on this issue. One nekuda, if I may beg to respectfully differ, is that I think you’re giving to much deference to secular courts/law. M’ikur hadin, the secular courts and the secular law should have absolutely zero bearing on this (or any) proceeding, case or dispute between two Jews, on matters of divorce, assets ownership, custody, visitation, child support or any other issues between Yidden, whether husband and wife or between strangers.
I understand your concern regarding the non-Jewish courts demanding to enforce various secular law as they may pertain to custody, child support or possibly other issues. But since, I believe, we are discussing Yirei Shamayim, who want to strictly and completely follow Halacha — even if and when they may be engaged in a dispute with another Yid (i.e. a spouse), therefore we should be operating under the assumption that both parties will do what is right Al Pi Torah and Din. Which means they’ll both naturally insist to completely adjudicate their dispute in Beis Din, exclusively using Halacha to determine the resolution of all issues.
If a married couple decide to split and amicably reach an agreement between themselves on all issues, including assets separation, custody, visitation and child support, as well as any other issues, and simply go through the legal process to technically formalize obtaining a writ of divorce so that they’re legally not married any longer, I don’t believe any judge will override their amicably and jointly presented agreement to the court. Even if there is some law on that books giving the judge that technical right. In fact, regarding a couple that have children but were never legally married to each other, as a large percent of gentile couples these days live, they can reach whatever amicable agreement they want regarding the money and children without even involving any court or filling any court case. In the vast majority of states any court will be elated and more than happy to accept a mutually agreed arrangement as is. It’ll save the overworked, overbooked, backlogged court docket from having to spend countless of tens or hundreds of hours of court time litigating issues that the parties mutually reached an agreement.
On that token, if two Yidden fully adjudicate all their outstanding disagreements in Beis Din (or mutually, privately, outside of Beis Din) and come to court with the Beis Din ruling and present it as their joint mutually agreed arrangements on all issues, including monetary separation, custody, visitation and support, it is extremely highly unlikely that any court will demand a court case be held to relitigate what was agreed to.
In fact, in many states if they reached an agreement and have no no dispute, they don’t even need to file any court case or involve the court whatsoever. They can simply carry out what they agreed to and have no dispute over. Obviously these are state laws and each of the fifty states (or foreign countries) will have their own legal nuances.
And that is the way to live Al Pi Torah and Halacha without utilizing any arkaos, c”v. So for any and all Yirei Shamayim, the above is how they would and should approach this.
So then we are left with the cases of where we are dealing with one of the parties to the dispute is not a Yirei Shamayim. And their lack of Yiras Shamayim is evidenced by the fact that they refuse to accept full and complete adjudication of all outstanding issues via Beis Din, utilizing halacha exclusively to determine the outcome. For example, if one disputant refuses to let the secular court know that all issues have been resolved (if a secular court is somehow necessary in the process, let alone if he/she kneged halacha initiates a secular court case). So what do we do about such a situation? The Beis Din should then put a Siruv on that party. And deny that party any halachic rights he/she would otherwise have been entitled to (i.e. a Get), until they reverse their kneged halacha actions and reverse/repay any gains they illicitly (kneged halacha) obtained from the secular system.
But since the large majority of frum Yidden have a chazaka of being Yirei Shamayim, the last type of unfortunate situation should be a distinct minority of divorces. But nevertheless an option in the toolbox of Butei Dinim, should it be necessary.
But to reiterate, I generally agree with the points you’ve made on these issues.