DIVORCE LAW IN HAWAI'I
A PUBLIC EDUCATION PROGRAM
PRESENTED BY
THE FAMILY COURT
OF THE FIRST CIRCUIT OF THE STATE OF
HAWAI'I
AND THE MEDIATION CENTER OF THE PACIFIC
Library/ Court- Related/ Divorce Law in Hawai'i/ DLiFI Handout
Materials/
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DIVORCE LAW
IN
HAWAI'I
The monthly Divorce
Law
in
Hawai'i
presentations,
which
are sponsored
by the
Family Court
of the First Circuit of the State
of
Hawai'i
and the
Mediation
Center
of the
Pacific,
and
which
began in
2OO2, are designed to
help couples
get
divorced
with
a minimum of conflict
and expense.
The
following materials
describe
(a)
the keys to a successful divorce,
(b)
the law
and
process
of
divorce in Hawai'i,
(c)
available
aiternatives to divorce
litigation,
including mediation,
attorney settlement,
collaborative divorce, cooperative
divorce, and arbitration/private
judging,
and
(d)
additional resources for
divorcing spouses.
For the
current schedule of Divorce Law in Hawai'i
presentations, please go
to
the website for
the State of Hawaii Judiciary
at www.courts.state.hi.us.
Finally,
as the information
provided
herein is necessarily
general
in nature,
none of it should be
taken as
legal
advice applicable
to
your
unique
and special
situation. If
you
need
professional
assistance,
you
are encouraged to
get
it.
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Introduction
These
materials address the following
topics:
Keys to a successful
divorce.
There are
only two
(2)
ways to
get
a
Divorce Decree.
The spouses can
either
together decide the terms
of their own divorce, and the Family
Court will
approve them,
or either spouse can require a Family Court
judge
to decide those
terms.
The
different
parts
of a divorce.
The
grounds
for a divorce
Legal
custody of children
Physical
custody of children.
a
Division
of
assets and
liabilities.
Child
support, child healthcare,
and child education
Alimony,
or spousal
support.
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What happens in
an uncontested divorce.
What happens
in a contested
divorce.
Alternatives
to litigating in Family
Court.
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Additional Resources
Keys
to a Successful Hawaii Divorce
Many would
say that these are the keys
to a successfui divorce
The longer
it
takes to complete the divorce, the more it will hurt,
and the
more it will
cost, both in dollars,
and
in lost
opportunities.
Education
about
divorce options which minimize
conflict and expense is the key.
The
divorce will
be
not
be done
until
a Family
Court
judge
signs the
Divorce
Decree. That's the
goal.
There is
a
fillable
model Divorce Decree
on
the
judiciary
website. Most
divorcing couples use this form.
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A
divorcing spouse should never let
a
Family
Court
judge
decide any of
the
terms of their divorce, unless
there
really is no
other
reasonable
alternative. A
contested divorce is inevitably
a
lengthy,
expensive,
complicated, risky,
stressful, frustrating,
unpredictable, and
privacy
invasive
undertaking with
the
potential
to do
lasting
damage to the
spouses, and the children.
Divorcing spouses
should, if at all
possible,
agree
on
all
of
the terms of
their
divorce, based on what they
both believe
is fair
and best
for
their
unique family situation. If a Family
Court
judge
had to decide the terms
of the divorce, rules
and
guidelines,
which may sometimes seem unfair,
will
apply. And because
of resource limitations,
the
judge
will never know
all of
the
facts. This is
particularly
true when it
comes to custody. One
should
always seriously consider mediation in
the event of any
problem.
Protect your
privacy.
Recognize
that
information
about divorce on the
Internet,
except for information
on the
judiciary
website, is
generally
unreliable. Divorcing
spouses should take the
advice
of relatives and
friends with
a
grain
of salt, remember
that their divorce
file will be
part
of
the
public
record,
hire
professionals
as
needed,
but also do as
much
as
they can on their own.
While
everyone
going
through a divorce has any number of
perfectly good
reasons
to be truly angry because of what has happened, if
one
acts on
their
anger, they will only increase
the chance of
litigation. The harm
to
be
avoided cannot be overstated. Reasonable
and informed compromise
on both sides is necessary. The
goal
is
an outcome each spouse can
live
with.
There
are many ways a couple can
go
about settling the terms of their
divorce without litigation before
the
Family
Court. There
is mediation,
attorney
settlement, collaborative divorce, cooperative divorce, and
arbitration/private
judging.
Factfinders and evaluators can
also be
involved. The
best choice will
consider
the
unique
personalities
of those
involved,
and the nature of
the
issues.
Finaily,
take heart.
Divorce
is truly a time of new
beginnings, and
opportunities.
Just remember,
as
they
say,
"opportunity's
favorite
disguise is
trouble", and
"you
don't know who
you
are, until
you
see
what
you
can do".
You have
the chance to be
a
hero
to those
who
care
for
you.
The
Parts
of a
Divorce
The Divorce
Decree
for
a couple without children will
(a)
end their
marriage, (b)
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divide all of their assets,
(c)
allocate responsibility for
the
payment
of all of their
indebtedness,
and
(d) provide
for
spousal support, or not. We
collectively call
the division
of assets and
allocation of debt incident
to divorce
"property
division."
The Divorce
Decree for
a couple
with
one or more minor
children, that
is
children not
yet
age
18, will
also
(a)
award
the
legal
and
physical
custody of
those children
to one or both
parents,
and
(b)
provide
for their support,
education,
and
maintenance.
The Divorce
Decree for
a couple
with
one or more
educationally dependent
adult children,
depending on the circumstances,
may also
provide
for their
support,
education, and maintenance.
In
other words, there is
(a)
the divorce itself,
(b) property
division, and
(c)
the
possibility
of spousal support,
and, depending
on the couple, also
(d)
custody,
and
(e)
the support of children.
The Divorce
ltself
There
is a separate Family
Court for each of
the
First
Circuit
(Oahu),
the
Second Circuit
(Maui,
Molokai, Lanai),
the
Third
Circuit
(Hawai'i),
and the
Fifth Circuit (Kauai).
A spouse
can file for divorce in
the Circuit in which he or
she
is
domiciied.
A
spouse can also file for
divorce if they are residing
on a
military
or
federal
base,
installation,
or reservation within
Hawaii,
or
if
they are
in
Hawai'i under
military
orders.
A
divorce will be
granted
upon the declaration by
the
Plaintiff
spouse
confirming that
the
marriage
is irretrievably
broken, or that the couple has
been separated for
at least two
(2) years.
The Defendant
spouse does not need
to consent
to the divorce. A showing
of
fault
is not required to
get
the
divorce.
If
the Defendant
spouse does not reside in Hawai'i,
jurisdiction
over him or
her for
purposes
of
property
division,
spousal support, andf or child support
may
be an
issue.
If
a child
does not reside in Hawaii,
jurisdiction
to determine the child's
custody,
and visitation, may be
an
issue.
Legal
Custody
of Children
The Divorce Decree
for
a
couple with
one or
more
minor children will
either
award
one
parent
sole legal custody
of the children, or it will
award
joint
legal
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custody
to both
parents
A
parent
awarded sole
legal
custody
of a child
is
authorized to make most of
the
important
decisions for him or her,
and so we call it decision-making
authority.
Parents
awarded
joint
legal
custody will make all important
decisions
for
the
child
together. Joint legal
custody can
promote
the
fuller involvement
and
support of both
parents
in the life of the
child.
Joint legal
custody with tie-breaking
authority to
one
parent
can
protect
against a decision-making impasse.
Physical
Custody of Children
The Divorce
Decree for
a couple
with
one or more minor
children will also say
who will
be their
physical
custodian.
Physical
custody is
where the children will
live on a regular schedule, and so
we call it
time-sharing.
The labels
are misleading.
Joint
physical
custody is not necessarily
50-50 time-
sharing. Rather,
joint
physical
custody is defined
by the law as any
timesharing
arrangement which assures
the
involved
child or children of
"frequent,
continuing,
and meaningful
contact with both
parents."
Decades
ago the Family
Court
had
guidelines
for
physical
custody.
They
were
abolished,
because
our statutes do not authorize
thern.
There is a relationship
between
timesharing and child
support.
Hawai'i's
child
support
guidelines
assume time-sharing by the non-primary
caretaker of up
to one forty-three (1a3)
overnights
per
year.
That's
about
five (5)
out of every
fourteen (14)
overnights during schooi
periods,
with vacation periods
shared
equally. As
time-sharing
gets
closer
to 50-50, child support
usuaily
will
change.
While
a child in
a custody dispute
doesn't
have
a
vote
as
to the
outcome,
he
or
she may have
"a voice"
through a best
interest
factfinder, a
custody evaluator,
or
a custody
guardian
ad litem.
The
voluntary
and informed
agreement of the
parents
with respect
to the
legal
and
physical
custody
of their children
will
be
approved by
the Family
Court.
If the parents
can't agree on either legal or
physical
custody, a Family Court
judge
will decide,
and he or she will have wide
discretion in doing so. Because
of time and resource limitations,
a
Family
Court
judge
will rarely have
enough
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information
to make the best most
child centered determination
Legal and
physical
custody can change if the
parents
agree, and the
Family
Court can order
a change, in certain circumstances.
Divorce Property
Division
The Divorce Decree will
say
who
is to receive which
assets, and
who is to
pay
which indebtedness.
Typically couples
address
property
division after they
have
address custody, and before they
address support.
The Divorce Decree will
award all existing credit
union, bank, checking,
savings and brokerage
accounts, vehicles, real
estate, and
life insurance
cash
value, retirement
assets, vested trust interests,
and everything else of
present
or
prospective
value,
without regard
to
who
legally owns it, to one
party,
or to
both
parties.
In some cases,
assets
will
be sold, and the
proceeds
divided.
The Divorce Decree will
also divide the couple's household
effects and
personal
belongings.
The marital
estate also includes
all
mortgage
debt,
vehicle
debt, tax debt, credit
card debt, and other indebtedness in
the name of one or both
parties
existing
at the time of the
divorce.
The first
step
in
addressing any financial issue in
any divorce
is
the creation of
an Asset
and
Debt
Statement reflecting
all of the assets and liabilities in the
marital
estate. This is very important. There
is a fillable form on the
judiciary's
website.
A mediation
on the
financial
issues in a divorce will
typically begin
with the
preparation
of a
joint
Asset and Debt
Statement by the couple
working
together.
Any voluntary
and informed
agreement by the couple dividing the marital
estate will be
approved by the Family Court, even if it's
different than
what
a
judge
would have
ordered.
However, if the
couple can't agree, a Family Court
judge
will
decide
how to
divide the marital
estate. In doing so, he
or she
will
utilize
what
are
referred
to
as
marital
partnership
principles,
sometimes known as the formula.
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The formula
is
very
simple
First,
from what
exists at the time of the divorce each spouse is
reimbursed
assets
worth
his or her date of marriage
personal
net worth
This so-called
"capital
contribution credit" is referred to
as
"Category
1
property",
for it is
based on the
proof
of
the
existence of a
particular
property
or
properties
on the date of marriage.
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Second,
from
what
presently
exists, each
spouse is also reimbursed
assets equal in value
to the
date of acquisition value
of the
gifts
or
inheritances
he
or she received
during the marriage. This
so-called
"capital
contribution
credit" is
referred to
as
"Category
3
property",
for it
is
based on
the
proof
of the receipt
of a
particular property
or
properties
during
the marriage by way
of
gift
or inheritance.
Third,
all of the
presently
remaining
assets, referred
to as "Category
5
property",
are divided equally.
As
part
of
this, all retirement
accumulated
during the
marriage is
equally divisible.
All
debt existing
at the time
of the divorce is
also divided 50-50 under the
formula.
In other words,
the formula
divides everything
existing
at the
present
time,
after reimbursements
for date
of
marriage personal
net
worth, and
gifts
and inheritances received
during the marriage.
The
formula regards
marriage
as an equal
partnership.
It does not
consider
the historic activities
of the
couple,
good,
bad or indifferent,
at
least
until the divorce
breaks out. It regards
the title of
an asset, or who
is the legal
obligor
on a debt, as irrelevant.
Based
on the
circumstances in
which the
parties
will
be left by the
divorce,
a
Family
Court
judge
can
"equitably
deviate" from the formula
in
favor
of the less financially
able spouse.
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A Family
Court
judge
can also
equitably deviate where
a
party
has
violated
a financial
restraining
order, or
concealed assets, or income
A Family
Court
judge
can award
a
less financially
able spouse
additional
property
in lieu of
alimony.
Finally,
a spouse will sometimes
concede additional
property
to avoid the
risk
and expense
of
protracted
litigation.
Lastly, it is
very, very important
to remember that
the division of retirement
incident
to divorce
often requires
a separate Family
Court order,
and that the
Divorce
Decree
alone is not
enough.
Child-Support
and Related
Matters
The
Divorce Decree
will
provide
for
the support of any minor
children, and it
may
also
provide
for the
support of
any educationally
dependent adult children.
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In Hawaii,
generally,
children not
yet
age 18, and
children
who
are full-time
students,
and
not
yet
age 23,
are entitled to child support.
Parents
will
address chiid support
once they have completed an Income
and
Expense
Statement reflecting their
anticipated future cash flow. There is
a
fillable form
on the
judiciary's
website.
Child-support must
comply with Hawai'i's
child support
guidelines.
The
guidelines
are on the
judiciary's
website. There
is an automatic worksheet
which
one can use to calculate child
support for their family.
The
guidelines
consider four (4)
things:
The
timesharing schedule for the
children, if the overnights for
the
non-
primary
caretaker exceed
one
hundred
forty-three
(143) per year.
The
gross
incomes
of both
parents
from
al1 sources. The
guidelines
describe which
different types of income
are included.
Certain
childcare
payments
to enable employment
The
actual or theoretical
cost of healthcare insurance for
the
involved
child or children.
The amount
calculated by the
guidelines
must
be
paid
absent exceptional
circumstances.
The
guidelines
describe with
particularity
what
are, and are
not,
exceptional circumstances.
Child support is
paid
through the Child Support
Enforcement Agency by
income
withholding,
unless ordered
otherwise.
The Divorce
Decree will
address the maintenance
of
healthcare
insurance for
the children,
and the
payment
of their uninsured healthcare
expenses.
The Divorce Decree
may also address
the
payment
of the
private
school and
college
expenses of the children. Educational
expenses include
tuition, fees,
and books. For
a child
living
away, they will
also
include
room and board,
travel, and
often an allowance.
There
are no Family
Court
guidelines
regarding
the maintenance of healthcare
insurance,
the
payment
of healthcare
expenses
not
covered by insurance,
or
the
payment
of educationai
expenses.
The Family
Court will
approve any
voluntary
and informed
agreement by the couple regarding
them.
If
the
parents
can't agree, a Family
Court
judge
would have wide
discretion to decide the
matter.
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The
couple can agree to the maintenance
of
life insurance for
the benefit of
their
children, and the Family Court
can order
it.
Finally,
child support, like custody, can be modified
by agreement, and
it can
also be modified by the Family Court in
certain circumstances.
Alimony
The Divorce
Decree will say whether there will
be any alimony, or spousal
support, as it is sometimes called.
The Divorce Decree
can
provide
that there will never
be
any
alimony.
The
Divorce Decree can
provide
for
transitional alimony,
which is
short-
term
post-divorce
support received
while the less financially advantaged
spouse is
adjusting to a
lower
standard of living.
The Divorce Decree
can
provide
for rehabilitative
alimony,
which is
support received while the less financially
advantaged spouse
is
getting
further
education, or acquiring new
skills.
The Divorce Decree
can
provide
for
permanent
alimony, which is support
received for
the
rest
of the life of the less financially advantaged spouse.
The Divorce
Decree can reserve the matter
of alimony
for future
determination.
There are no
guidelines
in Hawaii
governing
the amount, or duration, of
alimony.
The voluntary
and informed
agreement of the
parties
regarding alimony
will
be
approved by
the
Family
Court.
If
the couple cannot agree, a Family Court
judge
will
decide the
matter.
Alimony
is no-fault. It is not
a
reward for
good
deeds done, or a
punishment
for
bad acts. It must
be based on the circumstances in which the
parties
will be
left
by the divorce.
Alimony is typically
addressed after custody, and divorce
property
division, are
resolved,
and before child support is resolved,
since the
payment
of
alimony
affects the calculation of child support
under the
guidelines.
Alimony
is most likely where
the applicant has a
projected
post-divorce
cash
flow deficit, and
the other spouse
has
a
projected
surplus, as reflected in their
respective Income and Expense
Statements.
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Finally,
alimony can be modified
by agreement, and by the Family Court in
certain circumstances.
An Uncontested Divorce
The documentation
for an uncontested divorce involving
children
will include
seven
(7)
things:
The
original
of a
Divorce Decree
signed by both spouses, and any
involved lawyers.
A filed
copy of a
joint
child
support
guidelines
worksheet
signed by both
spouses.
A filed
copy of a
joint
Asset
and Debt Statement signed by both spouses
(or
a
filed
copy of one signed by each
spouse).
A filed
copy of the Income
and
Expense
Statement of each spouse
The
original
of an order
for income
assignment
(or
a filed copy of an
affidavit for
the direct
payment
of child support).
A liled
copy of an Appearance
and
Waiver
signed by the
Defendant
spouse
permitting
a Family
Court
judge
to sign the Divorce
Decree
A filed
copy of an affidavit by the Plaintiff spouse confirming the
agreement,
and other key facts regarding the couple.
No
appearance before
a
Family
Court
judge
is required for
an uncontested
divorce.
Once all
of the uncontested divorce
documentation
is finally
all signed, and
presented
to the Family Court,
the divorce
will
typically be
granted
in
a few
weeks.
Finally,
all of the forms for
an uncontested divorce,
in fillable
form, as well as
instructions
for
their completion, may be found on the
judiciary's
website.
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Contested Divorce
A
contested divorce rarely
takes less than a
year,
and it can easily
take a
lot
longer
than that.
Numerous steps required to advance
a
case to trial
greatly
add to the
time
required,
and the cost involved.
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Alternatives
to Family Court Litigation
Divorcing
couples
who
do
not wish
to
litigate
before the
Family Court have a
variety
of options.
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Parties Settle by Themselves Where the cou
ple
is on
good
terms, an
agreement
may
be
made
and
documented using the forms on the
judiciary's
website without the involvement
of anyone
else.
Parties Settle Using Lawyers The couple and their lawyers can
negotiate
the terms
of their divorce,
and
draft the uncontested
paperwork
without involving mediators,
arbitrators,
or
judges.
Parties Settle Using a Mediator The couple can,
with
or
without
lawyers, involve a skilled neutral to
promote
and facilitate the
exchange
of existing
information, the acquisition of new information,
and the
exploration
of
possible
win-win solutions.
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Parties
Settle Using Collaborative
Divorce Process Cou
ples
with lawyers
can agree to be completely
forthright,
transparent, and cooperative
rn a
shared effort to settle and, if settlement doesn't occur,
new lawyers are
required.
Parties
Utilize Cooperative
Divorce Process Couples with lawyers can
agree to be collaborative, but
new lawyers
are
not required if settlement
doesn't occur.
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Parties Resolve Issues Usinq
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Arbitrator Couples can agree to submit
their issues
to an arbitrator, on such
rules and
guidelines
they agree
The
arbitrator acts as a
private
judge.
The
arbitrator's
award is
confirmed by the Family Court.
Parties Resolve
Some
Issues
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Third Parties Couples can use
volunteer
settlement
masters,
custody evaluators,
best interest
factfinders,
and financial issue factfinders to
reduce
or eliminate
issues
that would
otherwise
go
to trial.
Additional Resources
Besides
this
program,
there are a
number
of
other resources available to help
divorcing spouses.
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Judiciary Website The
Hawai'i State
Judiciary's
website
at
www. courts. state.hi.us includes
many useful resources for
divorcing
spouses. Others
are described
Kids First Kids First is
the
mandatory
Family Court educational
program
for
parents
of minor children,
and
their children
ages
six
(6)
to
seventeen
(1
7). More information
about
the
program
can be
found
at
www.
kidsfi rsthawaii. com.
VSM
Settlement Master Process Attorney members of
the
Family Law
Section
can be assigned by a Family
Court
judge
to serve as a
volunteer
settlement master in
a case
which is
otherwise
headed
for
trial. More information
about the
VSM
process
is available on the
judiciary
website.
"The Purple Famil]r" This
award-winning educational video for
parents
and children
of divorce is
presented
at
Kids First.
.
Mediation Center of the Pacific The Mediation
Center of the
Pacific is
Hawai'i's
largest
provider
of affordable divorce mediation services. For
more information regarding MCP's
divorce mediation services
go
to
www. mediatehawaii.
ore.
o
HSBA Family
Law Section The attorney members
of the
Family Law
Section of the Hawai'i State Bar Association
are
pledged
to uphold the
highest
standards
of divorce
law
practice.
For
more information regarding
the activities of
the
Family Law
Section,
go
to
www. hawaiifamilvlawsection.
orq.
Kapolei Access
to Justice Room Attorney members
of the
Family Law
Section
provide
limited free legal
assistance to unrepresented
Family
Court civil litigants
at
the Kapolei Access
to Justice
Room. More
information
about
this
program
is
available on the
judiciary
website.
a
Hawai'i
Divorce Manual
Since
L975
the
Hawai'i
State Bar
Association's
Hawai'i Divorce Manual
has been the most widely used and
judicially
recognized resource
on divorce in Hawai'i. Included are
practical
discussions of every
aspect
of
divorce, an extensive
set
of
practice
forms, digests
of all divorce cases, and Family Court
policy
memoranda,
and a large coilection of other resources. It is available in
the Supreme Court Library,
and certain
public
libraries,
and
it
can be
purchased
at the
offices of the HSBA.
Family
Court Self Help Centers The Famil
y
Court has self-help
centers to
assist
divorcing couples at the Circuit Court
at
777 Punchbowl in
a
-L2-
downtown
Honolulu, and at
the Family Court at
4675 Kapolei
Parkway
in
Kapolei. Contact
information for both of them
can be found on
the
judiciary
website.
o
Dispute Prevention and
Resolution
(DPR)
Dispute Prevention
and
Resolution utilizes
retired
judges,
and senior
level
practitioners, as
mediators, arbitrators,
private
judges
and special
masters to assist
divorcing couples
resolve their
issues him. For more
information
go
to
the DPR
website
at
www.dprhawaii.com.
a
The International Association of Collaborative Profe
ssionals
(IACP)
The IACP is the leader in collaborative divorce
practice
in the United
States, and throughout
the world. On the
IACP website at
www.collaborativepractice.com
you
can
find
a
large collection
of
materials describing collaborative
practice.
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