Couples divorcing in Hawaii have to decide several important issues that get spelled out in a final Divorce Decree issued by the Family Court: custody and timesharing of children; child support; division of the parties’ assets and debts; and alimony (aka spousal support). A typical Divorce Decree is 15-25 pages of legal details spelling out the parties’ rights and obligations within these broad categories.
Many couples need the assistance of legal counsel and the Family Court to resolve the complexities of their divorce. In other words, they have a contested divorce. Early in the divorce process, the parties will frequently file a Motion for Pre-Decree Relief asking the Court to resolve certain issues on an immediate and temporary basis, such as physical custody and timesharing of children, temporary alimony, and residential matters.
After the Court issues temporary orders to resolve pressing matters, the parties will usually engage in discovery by doing depositions, serving requests for production of documents, and requests for answers to interrogatories. The purpose of discovery is to learn the facts that will help prepare for settlement and trial.
After discovery, the Court will usually require the parties to engage in mediation in an effort to settle. We strongly advise using a private mediator with extensive experience litigating family law matters; many of our favorite mediators are former Family Court judges and prominent family law attorneys. We can also assist parties who choose a low cost option such as Mediation Center of the Pacific.
If the parties cannot resolve their divorce through mediation, they will need to file a Motion to Set asking the court to set their case for trial. The court will hold a hearing on the motion, and if the parties are ready to proceed to trial, the court will set a trial date along with attendant deadlines. Even after the court sets a divorce for trial, the parties will have additional opportunities to settle their divorce at a settlement conference with the judge and/or with the assistance of a Volunteer Settlement Master appointed by the court.
If all else fails, the parties proceed to trial and present their case to a Family Court judge who makes the final decisions regarding the remaining contested issues. Most trials are 1-2 days in duration and are held on Monday and/or Tuesday. Each side has the opportunity to present witnesses, documents and testimony supporting her positions. The court then issues a Decision and Order that forms the basis for the final Divorce Decree.
A typical contested divorce takes six months to two years to resolve depending upon the complexity of the case and the level of acrimony between the parties. Most contested divorces resolve themselves without the need for a final trial because the parties eventually reach agreements.
Couples who are fortunate enough to have an amicable relationship with their spouses can process an uncontested divorce if they can reach agreements regarding each of the areas outlined above. Our strong advice is to hire an attorney to help you process your uncontested divorce in order to avoid mistakes that can cost many thousands of dollars to fix later.
What is an “uncontested divorce?”
Different lawyers define the term differently. In our practice, we 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 we prepare for our 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, our 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 we 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, but some take longer. 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. We 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.
What is legal custody?
There is no definition of “legal custody” in Hawaii’s statutes or reported court decisions. By long custom and usage, lawyers in Hawaii generally use the term to refer to the ability to make major decisions concerning a child. These decisions include, by way of example, the decision to settle a lawsuit, permission to marry, permission to enlist in the armed forces, or authorization for non-emergency medical procedures where informed consent is required. When one parent has sole legal custody, that parent is authorized to make all decisions relating to the child without the involvement of the other parent. However, the other parent may still challenge a particular decision by bringing a post-divorce motion in the Family Court. “Joint” legal custody means that both parents must agree before any major decision concerning the child may be implemented. Joint legal custody is the preferred approach in most cases, but it may not be practical in cases where there is a high degree of conflict between the parents, or an inability to communicate and work cooperatively.
What is physical custody?
Physical custody is a term that indicates which parent the child lives with most of the time. The other parent gets “visitation.” These terms are unfortunate, because they are emotionally loaded and often result in a great deal of unnecessary litigation unless one parent is willing to concede physical custody to the other. Physical custody can be sole or joint. Hawaii statutory law defines joint custody as any arrangement in which the child has regular and continuing contact with both parents.
What is “full custody?”
There is no such thing, unless the other parent is dead. Even in a situation where one parent has sole legal and physical custody, the other parent still has rights and obligations relating to the child.
How much “visitation” does the other parent get?
Time sharing (also sometimes called “parenting plans”) can be highly individualized. Visitation should take into account such factors as the child’s school and activity schedules, the parents’ work schedules, other adults and children residing in each parent’s home, and transportation. Some common time sharing plans include alternating weekends with the non custodial parent, or a 4-3-3-4 split over a two week period. When one parent has the child for most of the school year, the other typically gets more time during school vacations. When parents have a significant geographical separation, a typical arrangement is two trips per year to the non-custodial parent. Depending on the age of the child, travel arrangements can be somewhat complex, but specificity written into a divorce decree can avoid unnecessary fights later.
What is “supervised visitation?”
Supervised visitation is usually ordered when one parent has a significant problem, placing the child at risk if left with that parent unless there is additional supervision. Typically these cases involve a parent who is mentally ill, is violent, is a substance abuser, is a flight risk, or is in similar situations. Supervised visitation is generally not favored as a long-term solution, and can be difficult for both parents and children.
What if I want to relocate with the children?
If both parents agree, this is not a problem. When parents don’t agree, the parent who has sole legal and physical custody may relocate off-island with the child. However, the other parent may be entitled to seek a change in custody, or an order barring removal of the child from the state. In most cases, it is better for the relocating parent to first seek permission from the other parent or the court, rather than face litigation later. In a relocation case, the court will focus on whether the relocation is in the best interest of the child, not merely whether it is convenient or desirable for the relocating parent.
At what age can the child decide?
At the age of 18, the child becomes an adult and can live wherever he or she wishes. Short of that, there is no specific age under Hawaii law at which a child can choose his custodial parent. Hawaii statutes do provide that the “preferences” of a child of “suitable age and discretion” should be given “due weight and deference” by the court. Implementing this statutory directive is highly problematic. Most Family Court judges and practitioners believe it is damaging to a child to be asked to choose between parents.
How does the judge decide custody disputes?
When parents agree, it is extremely unusual for a judge to refuse to approve their agreement. However, when parents cannot agree, and the court must decide, there is no magic formula for child custody. It is important to remember that the best interest of the child is the court’s paramount consideration, and fairness to each parent is entirely secondary. Courts often try to order arrangements that are least disruptive for the child and continue established patterns. Courts will try to protect the child from parental disputes and violence, and from parents who have drug, mental health, criminal, or other lifestyle issues. Educational opportunity, environment, and parents’ desires all play a role, as do the child’s age, health, and other factors. Frequently, the court will seek input from independent investigators, therapists, or others before making a decision. Custody litigation is extremely complex and challenging, and each case turns on its own unique facts.
Can the Hawaii court decide my child’s custody?
Interstate custody disputes are extremely complex. As a practical matter, the two judges from the two different states where custody proceedings are pending will confer and decide which state would be the best forum. Generally speaking, an initial custody determination should be made in the child’s “home state,” that is, the place where the child was last residing with a parent for a continuous six-month period at the time the action was filed. Once an initial custody determination has been made, the state that made it has continuing “exclusive jurisdiction” to modify that determination. However, a temporary “emergency” order can be made anywhere the child may be, if there is abuse or threats of abuse to a parent or the child.
How does the judge decide what I’m entitled to?
The first thing to remember is that if the parties agree on the division of assets and debts, the judge doesn’t have to decide it. If the parties can’t agree, the judge will decide at trial. Hawaii follows the “partnership model” for dividing the marital estate. The marital estate consists of all assets presently owned by either party or both and all debts owed by either party or both. It does not include “separate property.” Separate property is very rare, although it may exist if the parties entered into a premarital agreement or in certain other, limited circumstances. In allocating the net value of the marital estate, each spouse will get “off the top” their net worth on the date of marriage, and the value of any gifts or inheritances received during marriage (and not gifted over by the recipient spouse to the two of them). The remaining value will be divided equally. Most cases do not involve separate property, net worth on date of marriage, or gifts and inheritances. In these cases, the net value of the marital estate will usually be divided 50/50, although the judge can vary from an equal split if there is a valid reason for doing so.
Does title matter?
Yes and No. Title does not matter in deciding how much of the marital estate each party is entitled to receive. Title does matter when there is a claim by one spouse that certain property never became part of the marital estate, or if there is a claim that property owned by one spouse at marriage or acquired later by gift or inheritance was not, in turn, gifted by that spouse to the both of them. Title also matters in terms of efficiently dividing the marital estate. For example, if there are two automobiles with the same net value, the one titled in husband’s name will likely be awarded to husband and the one in wife’s name will be awarded to wife. If both cars are jointly owned, one will probably go to husband and one will go to wife. If husband’s car is worth $5,000 more than wife’s, he may get the car in his name but be ordered to pay her $2,500.
What about real estate?
Houses, land and condos present unique issues. In most cases, the preferred approach is to either sell the property or for one party to buy out the other’s marital interest. The latter scenario usually requires an appraisal. When both parties are obligated on the mortgage, a buy out will usually require a refinance, as well. It is not illegal, but it is usually not a very good idea to continue to co-own real property post divorce, or to try to convey it to children.
What about retirement?
In most cases it is a better plan to try to trade off assets and debts in such a way that it does not become necessary to divide a retirement plan. Sometimes, it just can’t be avoided. Broadly speaking, there are two types of retirement plans. The first are fixed dollar retirement savings accounts, such as IRA, 401K, TSP, deferred compensation, and profit sharing plans. These accounts have a specific dollar value, but because of the tax liability associated with early withdrawal, retirement dollars are not worth the same as real dollars. The account owner may withdraw and pay over to the other spouse without incurring tax penalties by obtaining a Qualified Domestic Relations Order (QDRO). However, such an order may cost a significant amount in attorney’s fees. Unless the receiving spouse can roll over the funds into a qualified retirement account, there will probably be tax liability associated with the receipt of these funds. A CPA or tax lawyer should always be consulted in these cases before finalizing any division of assets and debts that includes division of a retirement account. The second type of retirement plan is the defined benefit plan, a traditional pension. Military, state and federal civil service, and some private employers’ pension funds are examples of such a plan. Typically, the retiree will receive a monthly amount based upon length of service, final salary, age at retirement or other factors defined by a formula. This amount will continue for a defined period, or the life of the retiree. It may or may not offer a survivor benefit. In divorce, the non-member’s share is a fraction of what the retiree will receive if, as and when it is received. Typically, the fraction is computed by length of marriage overlapping membership in the plan, divided by total length of membership in the plan, divided by two. The non-member may or may not be able to get direct payment of a share of the member’s monthly retirement check directly from the plan administrator, but if so, a QDRO will be required.
What about businesses?
A business will almost always be awarded to the proprietor, but the other spouse is entitled to be paid for the non-owner’s marital share. In rare cases, a business can be sold or divided in-kind, but this is a tricky proposition. In divorce, the value of the business is usually a difficult issue. Where a business is highly dependent on the personal drawing power of the owner, the value is often not very high, even though the business is generating a high amount of income. A professional business appraiser is often required to resolve these cases.
How will bankruptcy affect my divorce?
The interplay of bankruptcy and divorce is a complex subject, and if either party to a divorce is contemplating bankruptcy both spouses should consult a qualified bankruptcy attorney. Often, divorcing couples will choose to file a joint bankruptcy first. After discharge, there probably will not be much in the way of assets or debts to fight over. A more troublesome problem is when one spouse is obligated in a divorce decree to pay a joint debt, but gets a discharge in bankruptcy post divorce. In that case, the creditor can still look to the non bankrupt former spouse for payment. Generally, child support and alimony obligations are not dischargeable in bankruptcy.
How will divorce affect my taxes?
We are not a tax lawyers or CPAs. In cases where there is a possibility of complex tax implications, we always advise clients to consult with a qualified tax professional before signing a divorce decree. With that caveat, the following are some simple tax issues in divorce. Property awarded to a spouse in a divorce decree is not income, however, the property may come with other tax implications such as capital gains liability for property which has appreciated during marriage, or income tax liability when one attempts to draw on retirement accounts. Alimony, subject to some limitations, is tax deductible to the payor, and taxable income to the recipient. Child support is not tax deductible to the payor, and is not taxable income to the recipient. The tax dependency exemption automatically follows the parent awarded physical custody, unless the divorce decree specifies otherwise. Spouses are usually jointly liable for any tax liabilities resulting from a previously filed joint return, although the IRS does offer possible relief under the “innocent spouse rule.” To file a joint tax return, the spouses must have been married to each other for the entire calendar year.
Who is eligible for spousal support?
There is a great deal of misinformation about spousal support, also called “alimony.” People often believe that there must be a minimum period of marriage, or that a spouse with a job is ineligible. In Hawaii, the only requirement for alimony is a valid marriage and that the spouse seeking it did not waive the right to seek alimony in a pre-marital, marital or divorce agreement. A party to an unmarried relationship cannot obtain alimony, but if there is a child born of the relationship, the court will order child support.
How is the amount of spousal support determined?
Unlike child support, where there is a rigid formula, there are no guidelines or worksheets for spousal support. The court will usually approve whatever the parties agree upon. When there is no agreement, and the court must decide, the central issues are the need of the party seeking alimony and the ability of the other party to pay. There are subjective factors that the court considers, such as length of the marriage, what financial condition each party will be left in after the division of assets and debts, and the post divorce ability of each spouse to earn income.
Can spousal support be modified after divorce?
If a party waived alimony in a divorce decree, it cannot later be ordered. However, if alimony of a certain amount and duration is specified in a divorce decree, it can be modified if there is a material change in circumstances, even if the decree says that alimony is non-modifiable. Remarriage usually terminates the right to receive alimony, unless the decree says otherwise.
Can spousal support be paid through CSEA?
Yes. An order for income withholding can specify a total amount that includes child support and spousal support to be deducted by the employer and sent to the Child Support Enforcement Agency.
What if my ex fails to pay spousal support?
Generally, the same remedies are available as for payment of child support, except that CSEA will not enforce a spousal support order except in conjunction with a child support order.
How is child support determined?
Hawaii has a mandatory formula which the court will follow called the “Child Support Guidelines.” The variables in the formula are the number of children, the gross monthly incomes of the parents, and the medical insurance and day care costs for the children. This data is entered into a worksheet, and the required amount is then computed. Generally, the parties are not allowed to deviate from the amount shown on the worksheet, but there are rare exceptions.
Why must child support be paid through CSEA?
Because non-payment of child support was a chronic problem, Hawaii passed legislation many years ago requiring that it be automatically deducted from the obligor’s paycheck, just like taxes. The employer withholds the support amount from each paycheck, and sends it to the Child Support Enforcement Agency, which then cuts a check to the custodial parent. Although there are cases of delays and errors, for the most part this has been a very efficient approach. However, the parties can opt for direct payment from one parent to the other if both agree in writing, if the children have never been on welfare, and if the payor has never been delinquent.
How does custody affect child support?
Currently, the guidelines assume that the non-custodial parent will have up to 143 days per year of “visitation” with the child. If the time-sharing plan provides more than that, the non-custodial parent gets a pro rata reduction for each day beyond 143. If the time sharing plan provides equal time to both parents, another set of computations are used which significantly reduces child support. Many people believe that neither parent pays child support to the other in a joint physical custody or equal time-sharing arrangement. This is not true, except when the gross incomes of the parents are close to equal.
How does alimony affect child support?
Child support is based on the gross incomes of the parents. If one parent pays alimony to the other, the alimony is deducted from his gross income and added to the gross income of the recipient. If the alimony recipient is also the custodial parent, receipt of alimony means less child support.
How long is the support obligation?
In Hawaii, the obligation to support children runs at least until age 18 or high school graduation, whichever occurs last. The Child Support Enforcement Agency will not enforce a support obligation beyond this point. However, the court can order support to continue beyond high school if the child is attending college on a full-time basis or is enrolled in an accredited vocational training program. In this situation, the child support amount will not automatically be computed using the guidelines formula. Instead, the court will consider the reasonable needs of the child, both parents’ ability to pay, and the college student’s ability to contribute to his own support through scholarships, loans, or part-time work.
What about educational expenses?
If the parties agree, or if the court orders it after a trial, one or both parents may be obligated to pay private educational expenses from kindergarten through high school. Private education expenses are paid in addition to child support. These expenses are usually defined as tuition, books, and mandatory fees. School lunches, transportation, school supplies, and clothing are normally considered to be covered by the payment of child support. Preschool programs prior to kindergarten are normally considered to be day care, which is covered by the payment of child support. When a child has previously been attending private school, the court will normally order that this continue. A divorce decree or paternity judgment does not have to mention private education expenses; it is an issue that the parties can defer to a later time.
How can I modify a support order?
The fastest way to get child support increased or decreased is to file a motion (or, if there is an agreement, a “stipulation”) in Family Court. Either party can ask for a modification whenever there has been a “material change in circumstances,” or not more than once every three years without demonstrating a material change. Most often, the change is a significant increase or decrease in one party’s income. In Hawaii, child support can only be modified retroactive to the date of the request, not to the date of the change in circumstances. Therefore, the party who will benefit from the change should seek it promptly. In cases where child support is paid through the Child Support Enforcement Agency, a party can request that the agency initiate a modification through its administrative process. While this process does not require an attorney, it may take longer than Family Court. In many cases, so it is well worth the attorney’s fees to hire a lawyer and seek modification through Family Court, instead of using the Child Support Enforcement Agency.
How can I enforce a support order?
A child support order, whether it was issued in Hawaii or elsewhere, can be enforced just about anywhere the obligor or his property can be found. Methods of enforcement include garnishment of wages and seizure of property. In extreme cases, the court can hold the obligor in contempt and order incarceration until the support is paid. Through the Child Support Enforcement Agency, other remedies against those who fail or refuse to pay include tax refund intercept, and revocation of licenses and passports.