Divorce - Law Office of Thomas D. Farrell Attorney Certified Specialist in Family Law

FAQs: Divorce

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actions without first consulting a qualified attorney about their specific situation.

What is an "uncontested divorce?"
Different lawyers define the term differently. In my practice, I consider a divorce "uncontested" if the parties reach an agreement on all issues before filing the divorce action and the other party signs a divorce decree and supporting documents that I prepare for my client. If the other party files a court action, hires a lawyer, refuses to sign the decree, or otherwise fails to cooperate, then the divorce is "contested."

Can my spouse and I hire you for an uncontested divorce?
No. A lawyer can only represent one client in a divorce case, and is prohibited by ethics rules from representing both sides. In an uncontested divorce, my client is typically the "plaintiff," the one who is initiating the divorce. If the other spouse, the "defendant," chooses not to retain an attorney and signs the divorce decree that I prepare, then the divorce is uncontested.

What is a "no-fault" divorce?
In the old days, a spouse seeking a divorce had to prove adultery, desertion or cruelty by the other spouse. In Hawaii (and most other states), that is no longer the case. A divorce can be obtained without proving "fault" on the part of the other spouse. In fact, the conduct of the spouses is generally irrelevant to the issues in a divorce case, with two major exceptions: (1) the personal conduct of a parent may be relevant in a child custody dispute, and; (2) financial misconduct by a spouse may be relevant to the division of assets and debts, or other financial issues in the divorce.

What is a "default" divorce?
A default occurs where the other spouse, after having been provided with the documents that initiate a divorce case, fails to respond in the time allowed by court rules. Generally, a party served with a summons in a divorce case must file an answer with the court within twenty days. If no answer is filed, the other party may proceed to get a divorce. The typical default divorce occurs when the spouse seeking the divorce simply cannot locate the other and must publish the summons in the newspaper, although default divorces occur in other circumstances, too. This is not the same as an uncontested divorce, where the other spouse is an active, but cooperative, participant in the process.

Who can file for divorce in Hawaii?
In order to file for divorce in Hawaii, you must have a valid marriage and you must be "domiciled" in the State of Hawaii at the time you file. You are domiciled here if you are physically present with the intent to remain for the foreseeable future. If you have not been domiciled or physically present here for six months at the time of filing, you must wait until you have been here that long before asking the court to finalize your divorce. However, you may still file for divorce and ask the court to make temporary orders.

What if my spouse isn't in Hawaii?
You may still file for divorce here, but the court will not have the authority to make awards of assets and debts that are not located in the State of Hawaii.

How long will my divorce take?
Predicting the length of a divorce case is extremely difficult. As a general rule, an uncontested divorce will take about ninety days, assuming that the parties have agreed on all issues and are responding promptly, and assuming that the court is not overly congested. A contested case requiring a full-blown trial on major issues such as custody, visitation, support, or division of the marital estate will usually last about a year. Cases which settle short of trial fall somewhere in the middle.

What if I need help now?
Many clients are in crisis at the beginning of a divorce case and need temporary orders for custody, support, exclusive use of a home or vehicle, payment of customary expenses, or protection from financial manipulation. The Family Court permits either party to a divorce case to file a "Motion for Pre Decree Relief" to obtain temporary orders. Usually, these motions are heard on Wednesday afternoons, about three to four weeks after filing. In an extreme emergency the court can be requested to act sooner.

Should I file for a separation?
The law does not require married people to live together. If spouses wish to live apart, they are free to do so without a court order. If they can agree on how to handle their children and financial affairs while living apart, so be it. It is only when they cannot agree on these matters that a Separation Decree will provide temporary orders relating to custody, visitation, support, use of assets and payment of debts. In Hawaii, a Separation Decree is valid for two years, then it automatically dissolves. A Separation action in the Family Court is not cheaper or faster than a divorce. In most cases, parties who decide to live apart and whose relationship is so dysfunctional that they need a court to issue temporary orders, are likely to be headed for divorce anyway. The "Motion for Pre Decree Relief" in a divorce action is usually a faster and better solution. I rarely recommend or commence a separation action.

Should I file for an annulment?
An annulment requires specific proof that the marriage was invalid at the time the parties entered into it. A marriage is invalid if the parties are closely related (an uncle marrying his niece, for example), if one of the parties was underage, if one of the parties was already married to someone else, lacked mental capacity or was afflicted with a "loathsome disease" unknown to the other. An annulment may also be had when the party seeking annulment was the victim of force, duress or fraud, provided there has been no cohabitation (i.e., living together) after the marriage. In Hawaii, it is not a ground for annulment that the marriage was short or that the parties did not have sex. Annulments are extremely rare and difficult to obtain.

What if we change our minds and decide to remain married?
If the parties reconcile and desire to remain married it is a simple matter to dismiss the divorce case by agreement any time prior to the entry of a divorce decree. Once a divorce decree has been signed by a judge and filed with the clerk of the court, the divorce is final. However, the parties are free to remarry if they wish.

FAQs

Contact Info

700 Bishop Street, Suite 2000
Honolulu, HI 96813
Tel: 808 . 535-8468
Fax: 808 . 585-9568
Email: tom@farrell-hawaii.com