Beit Din Jurisdiction in Cases of Divorce:

Where Must a Couple Go to Have Their Case Adjudicated?

At first glance, common sense would suggest that a dispute between two parties should be adjudicated locally, before the beit din of their community. This arrangement is beneficial for multiple reasons. It minimizes the financial and logistical burdens of travel, reduces the likelihood of disruption to work and family life, and places enforcement of the court’s rulings in the hands of local authorities who are best positioned to ensure compliance. Yet in practice, the question of beit din jurisdiction is more complex, especially in cases of divorce. Many communities no longer have a single recognized beit din, and in New York alone, there are dozens, if not hundreds. Moreover, when the parties reside in different locations, the question becomes unavoidable: which beit din is halakhically authorized to hear the case?

Although the Talmud does establish certain principles for determining beit din jurisdiction, the social and legal reality it presumes largely ceased to exist by the medieval period if not before. As Jewish communal life evolved, new halakhic frameworks emerged to regulate where disputes should be adjudicated, and two concepts became especially significant: beit din kavua (an established or fixed court) and the principle of holech achar ha-nitba (that a case follows the defendant). Both were developed primarily to prevent litigation abuse, as it was not uncommon for people to file  false claims against  wealthy individuals in a distant beit din to exert pressure on them. They either incur significant expense and inconvenience by traveling to litigate the case with the hope of being found innocent, or they could agree to an unjust settlement simply to avoid the burden. Principles meant to establish clear jurisdiction were designed to restore fairness by limiting such extortionary tactics.

Beit Din Kavua

The concept of beit din kavua is most often traced to the Maharik (1420–1480), one of the foundational Ashkenazi poskim, particularly on matters of judicial procedure.¹ Responding to a widespread abuse of process, he ruled instead that litigation must take place before the defendant’s established local court, and that only the defendant—not the plaintiff—may seek to transfer the case elsewhere. For the Maharik, a locally recognized court possesses full authority to adjudicate disputes within its jurisdiction. The Rema later adopts and formalizes this position, establishing the doctrine of beit din kavua. He rules that where a city has appointed or accepted judges, a litigant may not bypass them in favor of zabla—an ad hoc beit din in which each party selects one judge and the two select a third.² The Rema explicitly justifies this rule by citing earlier precedent that judges authorized by the community cannot be rejected by the litigants, even if they are not expert judges.³

The institution of a beit din kavua presupposed a communal structure that was once standard in Jewish life, particularly prior to emancipation. Jewish communities functioned as legal and political communities. Individuals held formal membership, communal leaders were elected, and judges were appointed to serve as the community’s official beit din. In the modern period, however, this structure has largely disappeared. Contemporary Jewish communities often include many synagogues, overlapping affiliations, and no single representative authority empowered to appoint judges for the entire community. In addition, people relocate frequently or participate simultaneously in multiple communities. In light of these realities, Rav Moshe Feinstein sharply limits the applicability of beit din kavua, arguing that it does not exist in New York, where no single court is appointed by or accepted as binding by the community as a whole, and where multiple independent rabbinic associations operate in parallel.⁴

Rav Moshe Feinstein’s position was later affirmed by Rabbi Shemuel Landesman, a veteran American dayan, who writes unequivocally that “in the United States one does not find a beit din in a city that can be considered a beit din kavua.”⁵ He explains that a beit din kavua can be constituted in only one of two ways: “either the dayanim are appointed by the duly elected communal leaders of the city in the presence of the city’s rabbis, or the dayanim are chosen directly by the residents of the city in the presence of the city’s rabbis.” Contemporary American Jewish communities, which lack both formal communal membership and a unified mechanism for judicial appointment, are therefore structurally incapable of establishing a beit din kavua in the halakhic sense.⁶

Holech Achar Ha-Nitba

Although often assumed to be Talmudic in origin, most poskim understand the principle of holech achar ha-nitba to also have been formulated by the Maharik⁷ and later codified in Shulchan Aruch.⁸ Like the doctrine of beit din kavua, it was designed primarily to prevent litigation abuse by restricting a plaintiff’s ability to forum-shop in ways that would pressure a defendant into an unfair settlement. The more difficult question, however, is whether this procedural rule applies at all to cases of divorce. A common assumption is that when a wife seeks a divorce, she is the tovea (plaintiff) and her husband the nitba (defendant), and that jurisdiction must therefore follow the husband. However, a close analysis of several teshuvot on the matter reveals little agreement on this.

Those who claim that holech achar ha-nitba applies to divorce often cite a teshuvah of the Rashba, yet a closer reading reveals this is not the case.⁹ Rather than applying the principle to determine jurisdiction for a divorce dispute, he ruled only on the question of whether a husband is obligated to travel to his wife’s location to give a gett. In the end, he explains that since the gett may be received through shelichut (an agent), the wife may either come to the husband’s locale to receive it from him or appoint an agent to receive it on her behalf.

In an important teshuvah by Rav Meir Arik (1855-1925), he addresses a marital dispute in which the couple is separated, and the wife refuses to accept a divorce.¹⁰ As a result, the husband seeks to compel her to appear before a beit din in his city to rule on the matter and determine whether he may be permitted to marry another woman. Central to Rav Arik’s analysis is a fundamental question: in cases of divorce, who is properly defined as the tovea and who as the nitba? He notes that it is not self-evident that the party seeking to dissolve the marriage is the plaintiff. On the contrary, it can also be argued that the party seeking to preserve the marital bond is the true tovea. Faced with this conceptual uncertainty, and given that holech achar ha-nitba itself is a post-Talmudic enactment, Rav Arik declines to apply the principle to divorce cases at all. Instead, he reverts to the original procedural rule that one may summon the other party to the beit din of his own locale. In his case, this meant the husband could summon his wife to his beit din, and by implication suggests that in contemporary cases, a wife seeking divorce may likewise summon her husband to the beit din of her choosing.

Rav Moshe Feinstein also examines whether the principle of holech achar ha-nitba applies to a marital dispute, specifically when spouses reside in different locations and disagree over jurisdiction.¹¹ He first rejects the argument that the wife must appear before the husband’s beit din on the basis of kibbud ba‘al, emphasizing that marital honor is reciprocal and does not empower either spouse to force the other to come to them. Rav Moshe then distinguishes between two specific scenarios.In the first, the wife has left the marital home but has not expressed a desire to divorce. In such a case she is presumptively treated as a moredet, and the dispute is therefore adjudicated in the husband’s locale. In the second scenario, both parties have already agreed to divorce, and Rav Moshe explicitly states that halakhah provides no rule determining jurisdiction. Notably, he does not address the intermediate and most contested scenario: where one spouse seeks divorce and the other actively resists it.

Given the confusion about whether the principle of holech achar ha-nitba is to be applied in cases of divorce, where exactly does this lead us? Rav Yitzchak Oshinsky, av beit din of the Regional Beit Din of Jerusalem, offers a comprehensive analysis that attempts a resolution.¹² He convincingly demonstrates that the procedural rule of holech achar ha-nitba cannot be applied to divorce at all. The classical rationales for the rule—whether understood as a core principle of law or as a protective enactment—are all grounded in ordinary civil disputes, particularly financial claims. It was either intended to prevent litigation abuse or it assumed that the beit din of the defendant  was best positioned to resolve the case. Rav Oshinsky shows that neither of these reasons meaningfully applies to divorce cases, where the dispute is not over finances but the dissolution of the marriage, and where no beit din possesses superior coercive authority based on location.

On this basis, he concludes that the Rema’s rule of holech achar ha-nitba does not govern jurisdiction in divorce proceedings between spouses. He notes that the prevailing practice among Israeli batei din is to determine the venue based on the couple’s last shared residence. However, he emphasizes that this practice is not compelled by classical halakhic sources, but rather reflects procedural enactments  by the Israeli Chief Rabbinate in order to create uniformity and administrative clarity within a centralized rabbinical court system.

Conclusion

Taken together, this analysis points to a stark conclusion for contemporary American practice. Because a beit din kavua does not meaningfully exist in the United States, and because the rule of holech achar ha-nitba cannot be coherently or consistently applied to divorce proceedings, halakhah does not establish rigid jurisdictional rules governing where a divorce case must be heard. At minimum, this means that no clear halakhic principle requires the party seeking divorce to submit to the other party’s preferred beit din. More plausibly, it suggests that the party seeking divorce may summon the other party to a beit din that they best believe is capable of adjudicating the case fairly and bringing it to a proper halakhic conclusion. 

This is especially significant in the American context, where many batei din fail to adhere consistently to basic halakhic procedures. Hazmanot (summons) are often delayed or never issued, siruvim (rulings that establish one side has refused to come to beit din) are withheld even when a party has failed to appear, and batei din frequently will not rule the husband is obligated to give the gett even when there are clear grounds due to coercive control and domestic violence.¹³ 

On this point, it is worth citing the words of Rabbi Yakov Segal, who served as the rabbi of Kapush, Hungary, before the Holocaust, and later became a posek in Brooklyn: 

If a community and its beit din are not conducted according to Shulchan Aruch and the poskim, then the law changes: in such a case, even the plaintiff has the right to say, “Let us go to the beit din of the community that conducts itself according to Shulchan Aruch,” and the defendant cannot insist on going before the beit din of his own community. Such a court has no authority to compel the plaintiff to appear before it.¹⁴

The consequence is that women who have already endured severe harm during the marriage may find themselves trapped in prolonged proceedings or pressured into conceding to extortion simply to secure their freedom. In high-conflict divorces, particularly where coercive control took place during the marriage, the choice of beit din is not a matter of convenience or preference, but of pikuach nefesh, personal safety, and survival. Women who have experienced coercive control and domestic violence are at much greater risk of depression and self-harm. It is thus essential, both halakhically and morally, that women retain the ability to bring their cases before batei din that are procedurally rigorous, attentive to power imbalances, and capable of addressing such cases with the seriousness they demand—so that the divorce process does not become an extension of the abuse it is meant to bring to an end.