Aside from the emotional and financial toll that divorce can take on you, understanding the legal aspects of divorce are essential for you to survive the complex challenges facing you.
While an attorney can help, you also need to educate yourself on the legalities of divorce. If you don’t, you run the risk of enduring an unfavorable outcome that could haunt you for years.
Here are some of the key divorce laws in Hawaii that will help you better understand what lies ahead.
Hawaii is strictly a no-fault state, meaning that all you must do is cite irreconcilable differences for your divorce to be granted. You must be a resident of the state for at least six months prior to filing, and a resident in the county where you’re filing for at least three months.
Courts in Hawaii divide assets according to equitable distribution. This means that marital assets are divided fairly and equitably, but not always on a 50/50 basis. The court must consider several factors before approving how assets are divided. Marital debts are also treated in a similar fashion.
Child support is determined by the Income Shares Method, which means the incomes of both spouses are taken into consideration as the primary factor when reaching a child support decision.
Alimony can also be granted, but courts have more leverage in deciding how much it should be and for how long.
Although substance abuse and domestic violence can’t be cited as official reasons for divorce, they can influence child custody and other parts of your case. However, adultery will have no influence on these things.
Filing procedures, forms and processes may vary from island to island, so be sure to do your homework in advance depending on where you want to file your case.
Before property can be divided in a Hawaiian divorce, it must be determined which property belongs to both spouses and which property is separate.
Generally, property acquired before marriage or after the date of separation is considered separate. This also applies to gifts and inheritances, as long as those assets are not commingled.
A couple can also create a prenuptial or post-nuptial agreement that identifies separate property.
Once these determinations have been made, Hawaii uses equitable division as a means of determining who gets what. This means the courts will decide what is fair and equitable, but it may not be an equal 50/50 split. The court must consider several factors, including:
A judge can consider fault in dividing property, especially if misconduct affected the property available for distribution, such as due to gambling or drug use.
The division of assets (and debts) is layered into the settlement and must be executed after the divorce is finalized.
Pensions and 401k plans that are earned during a marriage are considered marital property and must be divided like other assets in Hawaii.
This means they are subject to fair and equitable distribution, but not equal distribution.
In many cases, couples negotiate in favor of keeping their pensions while giving up interests in other marital assets, perhaps their share of ownership in a home.
Placing an exact value on pensions and retirement accounts can be complicated and involve large sums of money. It’s not unusual to retain a retirement funds expert such as a certified divorce financial analyst, accountant, pension valuator, actuary, or business appraiser to reach an accurate figure.
Once the value for each spouse has been determined, each retirement account is split according to the settlement agreement. To do this, an attorney or a specialized firm must create a qualified domestic relations order, often referred to as a QDRO.
If you’d like to draft a QDRO online instead of with an attorney, try using QDRO Counsel ! They make it quick and simple to file your QDRO and will make sure that all of your assets are accounted for.
The QDRO spells out in detail how the retirement account will be split. It is submitted to the plan administrator and the court for approval. A QDRO, when executed, makes a spouse an alternate payee, and the account is divided according to the instructions in the document.
Any bank accounts with assets that were acquired during the course of the marriage are considered marital property in Hawaii and must be divided equitably.
If you have a separate bank account from before the marriage, and the assets are kept separate, you may be able to make the case that the funds in the account are your assets only.
Also, if you inherit a sum of money and you place it in a separate account, those funds will remain separate. However, if you place inheritances or gifts into accounts jointly owned by both spouses, those assets can become marital property and will split accordingly.
Debts are treated much the same way as assets in a divorce. Either the spouses must decide how they are to be divided, or the courts will decide for them.
In most cases, the court will award debts acquired before the marriage to the person who already had them. Debts acquired during the marriage will be divided fairly and equitably, but not always equally.
Debts incurred by both parties are always divided equally in the eyes of creditors. However, you may be able to negotiate a settlement that allows one spouse to be responsible for the debt.
Be careful, though, because if your name still appears on the debt, you are responsible for it, no matter what your agreement with your spouse says.
In Hawaii, inheritance and gifts are considered separate assets, even if they are acquired during marriage.
When a divorce takes place, they are not subject to a division of assets, unless they were commingled with marital assets or bank accounts during the course of the marriage.
If that happens, a spouse can make the case that they are entitled to a portion of those proceeds and the other spouse will need to provide proof to show that is not the case.
Alimony in Hawaii is called spousal support or maintenance.
By law, the court must consider several possible factors in determining the amount and duration of support. Those factors include:
As part of the final settlement, a court may rule that one spouse is entitled to a reasonable sum of money to be paid either in a lump sum or over a period of time. In some cases, this will be long enough for the spouse seeking alimony to learn new skills to allow them to become financially independent.
In some cases, with long-term marriages, spouses may be awarded long-term support, especially if the spouse has stayed home to take care of the family while the other spouse has worked.
Alimony in Hawaii terminates when the receiving party gets remarried.
State law requires the Family Court, the Child Support Enforcement Agency, and the Office of Child Support Hearings use 2014 Child Support Guidelines for all child support cases.
Both parents have an obligation to support their children. When orders are put in place, they can be enforced, modified or terminated by the courts or the Child Support Enforcement Agency.
To determine the level of support, Hawaii uses the Income Shares Model, based on the following principles
A series of worksheets and tables provided by the state can help to determine exact levels of child support
If you and your spouse have minor children, custody will need to be determined as part of your divorce. Custody is only determined for the children of both parties.
Both physical and legal custody will need to be determined.
Physical custody is with the place and parent where a child lives.
Legal custody is which parent is responsible for making the major decisions in a child’s life, such as medical decisions, church and school attendance and other important issues.
Both types of custody can either be joint or sole custody. For example, physical custody can be given to one parent, and legal custody can be shared. If physical custody is given to one parent only, the other parent usually has visitation rights and pays child support.
When parents can’t agree on custody for their children, the courts will make the decision for them, based on the best interests of the children.
If the parents do not agree on a custody arrangement for the shared children, the court will make a decision based on what is in the best interests of the children. One important factor considered is which parent has been the child’s main caretaker.
Need assistance with co-parenting? Our Family Wizard is an incredibly useful app that specializes in communication and scheduling for separated parents to most effectively raise their child(ren).
According to Hawaiian custody laws, the judge will take the following factors into account:
If there is a custody dispute, the court will usually order a social study. The type and duration of the social study will vary by island.
Substance abuse may place a child in danger and as such, if abuse is present, custody and visitation can be restricted or denied by the court.
Hawaiian courts may order substance abuse counseling or a rehabilitation program prior to granting custody rights. Drug testing can also be ordered to prove compliance visitation rights are granted.
If a parent begins to abuse drugs or alcohol after a divorce is finalized, then the other parent can seek a modification of current custody and visitation orders to protect the child.
Domestic violence can take many forms. It is much more than just physical harm. It can also include threats, psychological abuse, or malicious property damage and can be perpetrated on any family member, not just a spouse.
If you are experiencing domestic violence, the first thing you must do is protect your safety and the safety of anyone else being threatened. Call 911 if needed and vacate your premises immediately.
You can immediately seek out a temporary restraining order (TRO) through Family Court. The TRO will last for 90 days. The court will also schedule a hearing within 15 days that both parties must attend. At that time, the TRO can be extended for up to three years. Failure to adhere to the TRO can result in fines and jail time.
As you work through your divorce, domestic violence will have an influence on child custody and visitation. If the court feels that a child is in physical or psychological danger, visitation can be denied, restricted or take place under supervision.
If domestic violence is suspected, a judge can appoint a custody evaluator to look into allegations and report back to the court.
Hawaii is a no-fault state and adultery cannot be used as a reason to get a divorce.
Also, a judge will not use adultery or any other marital misconduct when deciding things such as alimony, child support or a division of assets.
In rare cases in Hawaii, a judge will allow a couple to divide a divorce into two separate legal actions.
This is known as bifurcation and may be employed with most issues can be resolved, but a few issues could take a long time to adjudicate.
There must be a “good cause standard” that must be met to allow bifurcation to take place. Judges will retain jurisdiction over the divorce with the understanding that remaining issues must be worked out at a later date.
Hawaiian judges are very reluctant to grant bifurcated divorces because of judicial inefficiencies and because there is less incentive to finalize a divorce.
By law you must disclose all your assets, income, debts and other financial obligations to your spouse and the court so that a fair division of assets can take place.
Hawaiian courts take a dim view on a spouse who attempts to hide assets and may punish the spouse in a variety of ways if they determine this to be the case.
In Hawaii, you may be required to continue providing health insurance for your spouse and children while a divorce is in progress.
You may also be required to pay for health insurance after the divorce if it is built into the settlement agreement. In all cases, courts will make sure that children have adequate health insurance, regardless of other circumstances.
After a divorce, group health insurers will not allow ex-spouses to remain on a policy.
The ex-spouse who is not covered will need to find insurance through other means, perhaps through COBRA or in the insurance marketplace.
If you or your spouse are in the armed forces, you can get a divorce in Hawaii if you live in the state or you’ve been present in the state for a continuous period of six months. If you’re stationed in Hawaii, you are included in this requirement.
However, if you and your spouse are separated by deployment, then you can file in the state where either of you live, as long as both parties agree to it.
You will need to file your case in the Family Court of the island where you have lived for at least three months.
While many issues are handled the same as they are in civilian divorces, there are a few notable differences.
For example, child custody and visitation issues can be more complicated due to relocation or deployment orders. Child support is determined the same way as it is for civilian cases, using the Income Shares Model.
Also, pursuant to the Servicemembers’ Civil Relief Act, and the Uniformed Services Former Spouses’ Protection Act (USFSPA) of 1982, active-duty members are afforded certain protections.
For example, a military spouse can request a delay in divorce proceedings so that his or her military duties are not impacted. Legal action can be delayed when he or she is on active duty plus 60 days beyond the end of his or her enlistment.
The USFSPA also governs how military pensions are disbursed and whether or not a former military spouse has full medical and commissary privileges.
For this to happen, the former spouse must have been married at least 20 years; the military spouse had at least 20 years of creditable service, and those two overlapped by at least 20 years.
Your spouse has 20 days to file a response after being served with paperwork. If they choose not to respond, a judge can issue a default judgment for your divorce.
In most cases, all terms you are asking for are granted, including things like child support, alimony, a division of assets and other key issues.
Unless you want to be saddled with a poor settlement, it’s usually wise to respond within the allotted time frame.
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Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
