Hawaii Divorce Law

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By DivorcedMoms, Senior Editor - September 24, 2013 - Updated October 05, 2013

Hawaii.jpgResidency Requirements

The spouse filing for divorce must have been present in Hawaii for 3 months. However, a final divorce will not be granted unless 1 spouse has been a resident for 6 months. The divorce should be filed in either: (1) the judicial district where the plaintiff resides or (2) the judicial district where the spouses last lived together.

Legal Grounds for Divorce

No Fault Divorce:

    • Irretrievable breakdown of the marriage.
    • Living separate and apart without cohabitation for 2 years and it would not be harsh or oppressive to the defendant spouse to grant the divorce.

General Divorce or Fault Based Divorce:        

  • Legal separation where there has been no reconciliation.

Legal Separation in Hawaii:

The spouse filing for separation must have been a resident for 3 months. Temporary legal separation may be granted for up to 2 years on the grounds that the marriage is temporarily disrupted.

A separation agreement in Hawaii is an option for couples that may not be ready to get divorced. You do not need a separation agreement in Hawaii to live apart. However, if you are separating and you and your spouse are having trouble agreeing on important issues such as custody of your children or other legal issues, then a separation decree may be necessary.


Alimony/Spousal Support in Hawaii:

The court may award either spouse maintenance, for either an indefinite period or a specific period to allow the receiving spouse to become self-supporting. Marital misconduct is not a factor to be considered. The factors to be considered are:        

  • The standard of living established during the marriage.        
  • The duration of the marriage.        
  • The ability of the spouse from whom support is sought to meet his or her needs while meeting those of the spouse seeking support.        
  • The ability of the spouse seeking maintenance to meet his or her needs independently.        
  • The comparative financial resources of the spouses.        
  • The needs of each spouse.       
  • The age of the spouses.        
  • The physical and emotional conditions of the spouses.        
  • The usual occupation of the spouses during the marriage.        
  • The vocational skills and employability of the spouse seeking support and maintenance.        
  • The probable duration of the need of the spouse seeking support and maintenance.        
  • The custodial and child support responsibilities.        
  • The ability of the spouse from whom support is sought to meet his or her own needs while meeting the needs of the party seeking support.        
  • Other factors which measure the financial condition in which the spouses will be left as a result of the divorce.        
  • Any other factor which measures the financial condition in which the spouses will be left in as a result of any award of maintenance.

Child Custody in Hawaii:

Joint or sole child custody may be awarded to either or both of the parents or another person based on the best interests of the child and upon the wishes of the child, if the child is of sufficient age and capacity to form an intelligent choice. Other factors considered are:        

  • Custody should be awarded to either parent or to both parents according to the best interests of the child, and the court also may consider frequent, continuing, and meaningful contact of each parent with the child unless the court finds that a parent is unable to act in the best interest of the child.        
  • Custody may be awarded to persons other than the father or mother whenever the award serves the best interest of the child.  Any person who has had de facto custody of the child in a stable and wholesome home and is a fit and proper person shall be entitled prima facie to an award of custody.        
  • If a child is of sufficient age and capacity to reason, so as to form an intelligent preference, the child's wishes as to custody shall be considered and be given due weight by the court.        
  • Whenever good cause appears therefore, the court may require an investigation and report concerning the care, welfare, and custody of any minor child of the parties.  When so directed by the court, investigators or professional personnel attached to or assisting the court, hereinafter referred to as child custody evaluators, shall make investigations and reports that shall be made available to all interested parties and counsel before hearing, and the reports may be received in evidence if no objection is made and, if objection is made, may be received in evidence; provided the person or persons responsible for the report are available for cross-examination as to any matter that has been investigated; and provided further that the court shall define the requirements to be a court-appointed child custody evaluator, the standards of practice, ethics, policies, and procedures required of court-appointed child custody evaluators in the performance of their duties for all courts, and the powers of the courts over child custody evaluators to effectuate the best interests of a child in a contested custody dispute pursuant to this section.  Where there is no child custody evaluator available that meets the requirements and standards, or any child custody evaluator to serve indigent parties, the court may appoint a person otherwise willing and available.        
  • The court may hear the testimony of any person or expert, produced by any party or upon the court's own motion, whose skill, insight, knowledge, or experience is such that the person's or expert's testimony is relevant to a just and reasonable determination of what is for the best physical, mental, moral, and spiritual well-being of the child whose custody is at issue.        
  • Any custody award shall be subject to modification or change whenever the best interests of the child require or justify the modification or change and, wherever practicable, the same person who made the original order shall hear the motion or petition for modification of the prior award.        
  • Reasonable visitation rights shall be awarded to parents, grandparents, siblings, and any person interested in the welfare of the child in the discretion of the court, unless it is shown that rights of visitation are detrimental to the best interests of the child.
  • The court may appoint a guardian ad litem to represent the interests of the child and may assess the reasonable fees and expenses of the guardian ad litem as costs of the action, payable in whole or in part by either or both parties as the circumstances may justify.
  • In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that family violence has been committed by a parent raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence.  In addition to other factors that a court shall consider in a proceeding in which the custody of a child or visitation by a parent is at issue, and in which the court has made a finding of family violence by a parent:

A.    The court shall consider as the primary factor the safety and well-being of the child and of the parent who is the victim of family violence.

B.     The court shall consider the perpetrator's history of causing physical harm, bodily injury, or assault or causing reasonable fear of physical harm, bodily injury, or assault to another person.

C.     If a parent is absent or relocates because of an act of family violence by the other parent, the absence or relocation shall not be a factor that weighs against the parent in determining custody or visitation;


Child Support in Hawaii:

According to Hawaii law the “non-custodial parent” or the parent who does not get physical custody of the children must pay child support to the “custodial parent.”  The payment of child support is required by law and cannot be waived by the custodial parent.  If you and your spouse are unable to agree on the amount of child support, the Family Court will determine the amount to be paid.  The Family Court may order either or both parents to provide child support, considering:       

  • All earnings, income, and resources of the parents.         
  • The earning potential, reasonable necessities and borrowing capacity of the parents.        
  • The needs of the child.         
  • The full amount of public aid the child would receive without any child support.         
  • Any other dependents of the parents.         
  • Incentives for both parents to work.         
  • An attempt to balance the standard of living of the parents and avoid placing any parent below poverty level.         
  • To avoid any extreme changes in either parent’s income.        
  • If a parent with school-age children is able to work and does not, 30 hours of minimum wage income will be added to that parent’s presumed income.

Property Distribution in Hawaii:

Under divorce laws in Hawaii, property is to be divided equitably, but not always equally, between divorcing spouses. In order to devise a fair distribution of property, a court's first step is to characterize property as separate or marital property. A spouse's separate property generally consists of property a spouse owned before the marriage, property acquired by gift or inheritance, and personal injury awards. The following guidelines to be taken into consideration by the court when dividing property in Hawaii:

  • The respective merits of the parties.
  • The relative abilities of the parties.
  • The condition in which each party will be left by the divorce.
  • The burdens imposed upon either party for the benefit of the children of the parties.
  • All other circumstances of the case.

Disclaimer: The divorce law information provided on Divorced Moms is for informational purposes only not for legal advice purposes. This information is general in nature. Each jurisdiction has specific code and court procedures. A local divorce attorney is your best source for how divorce is treated in your jurisdiction. Before making any legal decisions we encourage you to consult with a local attorney…do not make decisions based on general state divorce law.

 

 

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