Divorce Law: Grounds for Divorce in Hawaii
Divorce Law: Grounds for Divorce in Hawaii
|Grounds for Divorce||Description|
|No-Fault||The marriage is irretrievably broken and there is no reasonable likelihood of reconciliation.|
|Adultery||One spouse has engaged in sexual intercourse with another person who is not their spouse.|
|Extreme Cruelty||One spouse has inflicted physical or emotional harm on the other to the point that continuing the marriage would be intolerable.|
|Abandonment||One spouse has left the other without a reasonable cause or justification for a continuous period of at least one year.|
|Imprisonment||One spouse has been sentenced to prison for a period of two or more years.|
|Separation||The spouses have been living separate and apart for a continuous period of at least two years and there is no reasonable likelihood of reconciliation.|
Overview of Divorce Law in Hawaii
There are some basic requirements for filing for divorce in Hawaii:
- At least one spouse must have been a resident of Hawaii for at least six months before filing
- The petitioning spouse must have grounds (such as irreconcilable differences) for seeking the dissolution of marriage
- The parties involved must agree on division of property, assets, and debts; child custody and visitation arrangements; and financial support obligations such as alimony and child support
Definition of Divorce
In Hawaii, divorce is also known as dissolution of marriage. The grounds for seeking a divorce can vary depending on the state laws. In Hawaii, there are two main categories of grounds for divorce:
- No-Fault Grounds: This means that neither spouse has to prove that the other did anything wrong or was at fault in causing the breakdown of the marriage. Instead, they simply need to show irreconcilable differences have arisen between them.
- Fault-Based Grounds: This requires one spouse to prove that the other has committed an act which justifies ending their marriage. These acts include adultery, physical abuse, mental cruelty or habitual drunkenness.
History of Divorce Law in Hawaii
The history of divorce law in Hawaii dates back to the early 1800s when Hawaii was a monarchy. In those times, Hawaiian law allowed for divorce on only one ground – adultery.
However, after the overthrow of the monarchy and Hawaii’s annexation by the United States, changes were made to its divorce laws. One significant change was in 1929 when “irretrievable breakdown” became a valid ground for seeking a divorce. This meant that couples could seek divorce without having to prove any fault or wrongdoing by either spouse.
In more recent years, Hawaii has continued to make changes to its divorce laws with the introduction of no-fault divorces in 1970 and amendments over time regarding issues such as child custody, property division, and spousal support obligations.
Types of Divorce in Hawaii
Hawaii also recognizes collaborative divorces which are similar to uncontested divorces but involve negotiation and cooperation between attorneys representing each spouse instead of direct communication between the spouses.
Grounds for Divorce in Hawaii
- Adultery or cheating by one spouse
- Cruel treatment or abuse either physical or emotional towards one spouse
- Habitual drunkenness, use of drugs, or gambling addiction by one spouse
It’s important to note that if a couple files for divorce on fault-based grounds, it may take longer and cost more than filing under no-fault grounds. Additionally, many couples prefer not to file for divorce on fault-based grounds because it can be contentious and may cause more animosity between spouses.
Some key points about no-fault divorce in Hawaii include:
- Irreconcilable differences between spouses can be cited as a reason for seeking a no-fault divorce
- No specific evidence or wrongdoing needs to be proven by either party
- No-fault divorces can generally be granted more quickly and with less expense than fault-based divorces
In order to obtain a no-fault divorce in Hawaii, one spouse must file a petition with the court stating that they wish to end their marriage due to irreconcilable differences. Once this has been filed and served on the other spouse, there will typically be some period of time during which negotiations can occur regarding issues such as property division, child custody, and spousal support before finalizing the terms of the separation agreement.
Irretrievable Breakdown of Marriage
The concept of “irretrievable breakdown” is a central part of Hawaii’s divorce law. As mentioned earlier, it means that couples can seek divorce without having to prove any fault or wrongdoing by either spouse. Here are some important things to know about irretrievable breakdown:
- It refers to a situation where there is no hope for the couple’s marriage to be saved.
- Irretrievable breakdown can result from various factors such as infidelity, financial problems, lack of communication, or differences in goals and values.
- In Hawaii, if one spouse claims that the marriage has broken down irretrievably and the other does not deny it within 20 days of being served with notice, then this constitutes evidence that there has been an irretrievable breakdown.
Here are some things you should know about fault divorces in Hawaii:
- If one spouse wants to file for a fault-based divorce, they must prove that their partner was at fault for causing the breakdown of the marriage
- The most common grounds for a fault-based divorce in Hawaii include adultery, physical or emotional abuse, abandonment, substance abuse or addiction and imprisonment
- In many cases, seeking a fault-based divorce can be more complicated and expensive than pursuing a no-fault divorce because it requires gathering evidence to support your claim of wrongdoing by your spouse
Adultery is one of the fault-based grounds for divorce in Hawaii. Here are some important things to know about adultery and how it can impact a divorce:
- Adultery means voluntary sexual intercourse between a married person and someone who is not their spouse.
- In Hawaii, proving adultery requires evidence that shows there was an opportunity, inclination, and motivation to commit the act.
- The innocent spouse may seek a divorce on the ground of adultery at any time after discovering the infidelity.
In order to prove desertion as a ground for divorce, certain elements must be present:
- The abandonment must have been continuous and uninterrupted for at least 180 days
- The abandoned spouse did not consent to or condone the desertion
- The abandonment was done with no justification or cause, such as military service
If these conditions are met, then desertion can be considered a valid reason for filing a fault-based divorce in Hawaii. However, it’s important to note that proving desertion can be difficult and often requires evidence such as witness testimony or documentation showing that the abandoning spouse had no intention of returning.
In Hawaii, imprisonment is one of the fault-based grounds for divorce. This means that a spouse can seek a divorce on this ground if the other spouse has been imprisoned for a certain period.
Here are some key points to know about imprisonment as a ground for divorce in Hawaii:
- The incarcerated spouse must have been sentenced to serve at least three years in prison
- The filing spouse must not have cohabited with the imprisoned spouse after their release from jail or prison
- The filing spouse must file for divorce within two years of the prisoner’s release from confinement
Physical cruelty: This refers to any violent or abusive behavior by one spouse towards the other that causes harm or injury. Examples include hitting, punching, kicking, slapping or throwing objects at the other person.
Mental cruelty: Unlike physical abuse which involves violence, mental abuse is more subtle and often goes unnoticed. Mental cruelty includes behaviors such as verbal insults, threats, intimidation and humiliation in front of others. It can also involve isolation from family members and friends.
If you are considering filing for divorce on grounds of cruelty in Hawaii, it is important to seek legal advice to understand your options and how best to proceed with your case.
Substance abuse can be a factor in divorce cases in Hawaii. If one spouse is struggling with addiction, it can lead to a breakdown of the marriage and create an unstable home environment for any children involved.
If substance abuse is a factor in your divorce case, here are some things to keep in mind:
- The addicted spouse may need to seek treatment before or during the divorce process
- Child custody arrangements may need to be modified if the addicted parent is unable to provide a safe and stable home environment
- The addicted spouse’s behavior may impact property division if their addiction has led them to waste marital assets on drugs or alcohol
- Communication breakdowns
- Differences in values or beliefs
- Infidelity or dishonesty
- Mental health issues such as depression or anxiety
- Physical distance due to work, family obligations, etc.
In Hawaii, mental incapacity is a valid ground for seeking a divorce. This means that if one spouse has been deemed mentally incapacitated, the other may seek to dissolve the marriage.
However, there are certain requirements that must be met before a divorce can be granted on the basis of mental incapacity:
- The incapacitation must have existed for at least three years prior to filing for divorce
- A physician or psychologist must testify in court regarding the incapacitation and its effect on the individual’s ability to function in their daily life
- If guardianship or conservatorship proceedings have already begun regarding the incapacitated individual, then they may not file for divorce themselves
Filing for Divorce in Hawaii
Once these initial steps have been taken care of, there will likely be additional issues that will need to be addressed during the course of the proceedings such as property division, spousal support obligations and child custody arrangements. It’s important to work closely with your attorney throughout this process so that all matters are handled fairly and according to Hawaii law.
In addition to meeting these requirements, it’s important to note that residency will also determine which court has jurisdiction over the divorce case. In general, couples seeking divorce should file in the circuit court where either spouse lives or where the last marital home was located.
The purpose behind having these mandatory delays before finalizing a divorce judgment is to allow parties to have some time for reflection before making such an important decision that will affect their lives. It also gives them sufficient time to work out any disagreements about property division, child custody, visitation rights, and other relevant issues.
Forms Required for Filing
In addition to these required forms, there may be additional documents necessary depending on the circumstances of your case. For example:
- If you have children under 18 years old with your spouse, you will also need to file a Parenting Plan which outlines how custody and visitation will be handled.
- If there are significant financial assets or debts involved in your marriage, you may also need to provide documentation such as tax returns or bank statements.
- If one party has requested spousal support (also known as alimony), then they must fill out an Income and Expense statement detailing their financial situation.
Serving the Divorce Papers
In Hawaii, there are specific rules that govern how service should be accomplished. For example, if personal service cannot be achieved after reasonable effort, then substitute service may be allowed by posting notice on a prominent place at his or her last known address followed up by mailing another copy to that same address.
The spouse being served will have 20 days from receipt of those papers to file their response with the court. If they do not respond within this time frame, you can request that default judgment be entered against them.
Response to Divorce Petition
When a spouse files for divorce in Hawaii, the other spouse will receive a “divorce petition” which outlines the grounds for divorce and requests certain relief such as property division, child custody or spousal support. The non-filing spouse then has the opportunity to respond to this petition by filing an answer.
Here are some important things to know about responding to a divorce petition:
- The answer should be filed within 20 days from receiving the petition
- If you fail to respond, the court may enter a default judgment against you
- Your response should address each allegation made in the divorce petition and state whether you agree or disagree with them
- You can also file your own counter-petition requesting different relief than what was requested by your spouse in their original petition.
Division of Property in Hawaii
In Hawaii, the division of property during a divorce follows the principle of equitable distribution. This means that all marital property will be divided fairly and equitably between both parties, though not necessarily equally.
Marital property includes any assets or debts acquired by either spouse during the course of their marriage, regardless of whose name is on them. However, separate property – such as gifts, inheritances or personal injury awards – are excluded from this division process.
The court will take into consideration various factors when determining how to divide marital assets including:
- The length of the marriage
- Each spouse’s contribution to the acquisition and maintenance of assets
- The earning capacity and financial needs of each party after divorce
- The age and health condition for each spouse
Community Property vs. Equitable Distribution States
- A judge decides what is fair and reasonable based on various factors such as each spouse’s earning capacity, length of the marriage, age and health of each party, contributions made towards acquiring assets etc.
- The court may distribute marital assets unequally if it deems necessary for fairness.
- Marital Property: This refers to any property or assets acquired by either spouse during the course of the marriage. It includes income earned during the marriage, as well as things like homes, cars, investments and other valuable items.
- Separate Property: This refers to any property owned by one spouse before entering into the marriage or acquired through inheritance or gift during the marriage that has been kept separate from marital funds.
- A Qualified Domestic Relations Order (QDRO), which allows for distribution of funds from a qualified employer-sponsored retirement plan to an alternate payee (usually the non-employee spouse)
- An IRA rollover, where one spouse rolls over their portion of the other’s 401(k) into their own IRA account without penalty or tax consequences
- Joint Custody: In joint custody, both parents share legal and physical custody of their child(ren).
- Sole Custody: In sole custody, one parent has both legal and physical custody while the other parent has visitation rights.
- Legal Custody: Legal custody refers to a parent’s right to make decisions about their child’s upbringing including education, medical care, and religious practices.
- Physical Custody: Physical custody refers to where the child will primarily reside after a divorce or separation
- The wishes of each parent and any agreement between them
- The relationship between the child(ren) and each parent
- The age, sex, health and needs of each child
- Whether there are siblings involved
- The age of the child
- The wishes of each parent and the child (if they are old enough to express them)
- The nature of each parent’s relationship with the child
- The ability of each parent to provide for the emotional and physical needs of their child
- The age and sex of each child
- The emotional ties between each parent and their child or children
- The capacity of each parent to provide for their child’s basic needs such as food, shelter, education, healthcare etc.
- The moral fitness and character of each parent
- The ability of each parent to foster a positive relationship with the other parent after divorce or separation
- The relocation of one parent
- A change in employment or work schedule
- An increase or decrease in income
- A change in the child’s needs or activities
- Changes in income, including job loss or promotion
- Mistakes made when calculating initial support obligations
- The onset of new medical issues requiring additional financial assistance
- Increase/decrease in cost-of-living expenses.
- The length of the marriage
- The earning capacity of each spouse
- The age and health of both spouses
- The standard of living during the marriage
- A significant change in either spouse’s income or expenses
- The loss of a job by either spouse
- The recipient spouse gets remarried or cohabitates with another partner
- Changes in medical needs or other unexpected expenses arise for either party
- Less time-consuming than going through court proceedings
- Can be less expensive compared to hiring attorneys for litigation
- Puts more control into the hands of the couple rather than leaving decisions up to a judge
- Cost-effective: Mediation is often less expensive than going through a lengthy court battle.
- Faster resolution: Because the parties involved control the pace of negotiations, mediation can lead to quicker resolutions than going through the court system.
- Better communication: Mediation allows for open communication between spouses which can help improve their relationship moving forward after the divorce has been finalized.
- Mutually beneficial outcomes: In mediation, both parties have an opportunity to express their interests and concerns leading to mutually beneficial outcomes for all involved.
- The Parenting Plan Mediation Program assists parents who need help creating or modifying custody arrangements and visitation schedules for minor children.
- The Child Support Enforcement Agency provides assistance in establishing paternity and enforcing child support orders when one parent is not complying with the terms of the order.
- Make sure the attorney has experience handling divorces in Hawaii
- A good attorney will listen attentively to your concerns, provide clear explanations of what to expect during the process and help establish reasonable expectations from the start.
- Your lawyer should also ensure that all necessary paperwork is properly prepared filed with the court on time.
- Referrals from friends or family members
- The lawyer’s reputation in the community
- Their availability and accessibility throughout the case process
It’s important to note that while some states are strictly categorized as either community property or equitable distribution states, others have hybrid systems which can blend aspects from both approaches.
Marital Property vs. Separate Property
In Hawaii, courts use what is known as “equitable distribution” when dividing up marital property between spouses in a divorce. This means that while property division should be fair and just for both parties involved, it does not necessarily have to be equal.
If you are going through a divorce in Hawaii and have questions about how your marital and separate properties will be divided, you should consult with an experienced family law attorney who can provide guidance based on your individual situation.
Factors Considered in Property Division
It should be noted that Hawaii is an “equitable distribution” state. This means that marital assets do not necessarily have to be divided equally between spouses but rather in a manner deemed fair given all relevant circumstances.
Division of Retirement Benefits
If you are going through a divorce in Hawaii and have questions about how your retirement benefits will be divided, it is recommended that you seek advice from a qualified attorney who specializes in family law.
Some options for dividing retirement benefits include:
Child Custody and Support in Hawaii
In Hawaii, there are guidelines for determining how much financial support should be paid by one parent to another for supporting their child or children. These guidelines take into account factors such as each parents’ income and expenses, number of children involved, cost of health insurance coverage etc. However, these guidelines are not mandatory – they serve merely as a starting point for negotiations between parents or for a judge when making an order about this issue.
Types of Custody
The main types of child custody in Hawaii include:
In some cases, shared parenting time may also be arranged as part of a joint or shared custodial arrangement. This means that both parents have equal access to their children during designated periods of time.
In making a determination about physical custody, courts consider various factors such as:
Custodial arrangements can also be modified if circumstances change or if it is found to not be in the best interests of the children. Parents may also work together on a parenting plan or agree on changes without court intervention through mediation or negotiation.
When deciding on legal custody arrangements in Hawaii, the court considers several factors such as:
In making its decision about legal custody arrangements, Hawaii courts prioritize what is in the best interests of the child. It is important for parents seeking a divorce in Hawaii to understand how this process works so they can make informed choices about what kind of arrangement will work best for their family situation.
Factors Considered in Custody Determination
When determining child custody arrangements in Hawaii, there are a number of factors that the court will consider. These factors are intended to ensure that the best interests of the child or children involved are taken into account.
Some of the key factors that may be considered include:
Child Support Guidelines
In Hawaii, both parents have a legal obligation to financially support their children until they reach the age of 18 or graduate from high school (whichever comes later). Child support payments can be modified if there is a significant change in circumstances such as job loss or increase/decrease in income.
Modification of Custody and Support Orders
If one parent wants to modify an existing child custody order, they must file a motion with the court demonstrating that there has been a significant change of circumstances since the previous order was issued. This could include things like:
Similarly, if either parent wishes to modify a support order (either spousal or child), they can request this through Hawaii’s family court system by filing a motion showing evidence of substantial and continuing changes since the last order was made. Examples of such changes include:
Spousal Support in Hawaii
In Hawaii, there are several factors that a court considers when determining whether spousal support is necessary and how much should be paid:
It’s important to note that spousal support in Hawaii can be temporary or permanent depending on various factors such as the duration of the marriage and other circumstances. The amount and duration may also change over time based on changing circumstances such as job loss or remarriage.
Types of Spousal Support
The amount and duration of spousal support vary depending on various factors such as length of marriage, age and health conditions, earning capacity and contribution towards household services. The court will consider these factors when deciding whether or not to award alimony and how much it should be.
Factors Considered in Spousal Support Determination
Additionally, in cases where one spouse has sacrificed their career or education to support the other during the marriage (such as being a homemaker or stay-at-home parent), that can be taken into consideration when determining spousal support.
It’s worth noting that while Hawaii law provides guidance on how spousal support determinations are made, it ultimately comes down to the judge’s discretion based on all relevant circumstances in a particular case. As such, consulting with an experienced family law attorney can help you understand your rights and options regarding spousal support.
Modification of Spousal Support Orders
In Hawaii, spousal support orders can be modified if there has been:
To request a modification of an existing spousal support order, the requesting party must file a motion with the court and provide evidence supporting their claim. The court will then review the evidence and determine whether a modification is appropriate based on the current circumstances.
Mediation and Alternative Dispute Resolution in Hawaii
In Hawaii, mediation and alternative dispute resolution (ADR) are commonly used to help couples reach agreements during the divorce process. The state of Hawaii actually requires that all parties attend a mediation session before trial in order to try and resolve any issues.
Mediation is conducted by an impartial third party who helps facilitate discussion between the spouses. This can help both parties communicate effectively and find mutually acceptable solutions. Some benefits of using mediation or ADR in divorce cases include:
Benefits of Mediation
Mediation is a process where divorcing couples work with a neutral third-party mediator to reach agreements on issues such as property division, child custody and support, and spousal support. There are several benefits of mediation over traditional litigation in divorce cases:
Mandatory Mediation in Hawaii
Hawaii law requires all parties involved in a divorce to attempt mediation before proceeding to trial. This is aimed at helping couples come up with an agreement that works for both of them, without having to go through the stress and expense of a court battle.
Mediation is usually conducted by a neutral third party who helps facilitate communication between the spouses so they can work out their differences and come up with a plan for moving forward. The mediator does not make any decisions or impose any solutions on either spouse; rather, their role is to help guide the discussion towards finding common ground.
If mediation fails, the case will be scheduled for trial where a judge will make decisions regarding property division, child custody arrangements and financial support obligations such as alimony and child support.
Other Forms of Alternative Dispute Resolution
In addition, Hawaii also has programs designed specifically for families going through divorce:
Hiring a Divorce Lawyer in Hawaii
A good divorce lawyer will be able to provide guidance on issues such as child custody, property division, alimony/spousal support, and other matters related to your divorce. They can also help negotiate settlements with your spouse or represent you in court if necessary. When choosing a lawyer, it’s important to find someone who understands your goals for the outcome of your case and is committed to achieving those goals while protecting your legal rights throughout the process.
Do You Need a Lawyer?
If you do decide to hire an attorney for your divorce case, here are some key considerations:
How to Choose a Divorce Lawyer
Other factors to consider when choosing a divorce lawyer include:
In general, it’s important to choose an attorney who makes you feel comfortable, confident, and well-informed throughout the process.
Cost of Hiring a Divorce Lawyer
The cost of hiring a divorce lawyer in Hawaii varies depending on these factors. According to LegalMatch.com, an uncontested divorce with no children involved may cost between $1,500 and $3,000. However contested divorces can range from $15K-$30K per spouse.
In conclusion, divorce law in Hawaii has a rich history with various changes made over the years to accommodate the evolving needs of society. Whether seeking a no-fault or fault-based divorce, Hawaii provides grounds for both types of divorces, making it easier for couples to end their marriages.
While some may view divorce as an easy way out of a marriage that is not working, it is important to note that ending a marriage can be complex and emotional. Therefore, before filing for divorce in Hawaii, it is advisable to seek legal counsel from an experienced family law attorney who can provide guidance on how best to navigate through the process.
Ultimately, when handled correctly and thoughtfully by both parties involved -divorce can lead to new beginnings and positive outcomes for all those affected by this life-altering decision.
Summary of Grounds for Divorce in Hawaii
If you’re considering filing for a divorce in Hawaii, it’s important to understand these different types of grounds and what they mean. Consulting with an experienced family law attorney can help ensure that you make informed decisions throughout this challenging process.
Importance of Seeking Legal Advice
It’s worth noting that Hawaii law allows for couples seeking a divorce to use mediation services instead of going through traditional litigation. A mediator works with both parties to negotiate a mutually agreeable settlement on issues such as property division and child custody. However, even if you choose mediation over litigation it is still advisable to have an attorney representing you throughout the process.
Resources for Further Information on Divorce in Hawaii.
It is important to gather as much information as possible before making any decisions regarding your divorce. Consulting with a qualified attorney or utilizing one of these resources can help ensure that your rights are protected and that you achieve the best possible outcome for yourself and your family.
FAQ on ‘Divorce Law: Grounds for Divorce in Hawaii’
What is the process for filing for divorce in Hawaii?
To file for divorce in Hawaii, you must first meet residency requirements and then file a petition for dissolution of marriage with the appropriate court. After filing the petition, you must serve your spouse with a copy of the paperwork and wait a specific amount of time before attending a hearing to finalize the divorce.
How long does it take to get a divorce in Hawaii?
The length of time it takes to get a divorce in Hawaii varies depending on whether both parties agree on all aspects of the dissolution, including property division and child custody arrangements. If both parties can come to an agreement quickly, then the process can be completed within several months. However, if there are disagreements that require litigation or mediation, it could take much longer.
What happens if one spouse does not want a divorce?
If one spouse does not want a divorce but the other spouse does, they cannot prevent their partner from filing for dissolution of marriage. However, if they do not respond to legal documents or do not show up at court hearings related to the case, they may lose certain rights and benefits associated with marital property and support agreements.
Can I represent myself during a divorce case in Hawaii?
Yes, you have the right to represent yourself during a divorce case in Hawaii, but it is not recommended. Divorce law can be complex and emotional, and having an experienced attorney on your side can help ensure that your rights and interests are protected throughout the process.