Divorce Recovery Suite
Hawaii Divorce Laws

Divorce laws in Hawaii mandate that the court may award child custody or award child support at any time during or after the proceedings for divorce. State law permits the divorcing couple an opportunity to put together a Hawaii Parenting Plan or Child Custody Agreement, but if they fail to do so, the Family Court in Hawaii will step in with its own plan, guided by the following factors:

• Child custody should be awarded to either parent or to both parents according to the best interests of the child,
• Child custody may be awarded to persons other than the father or mother whenever the award serves the best interest of the child,
• The court will weigh the wishes of your minor child, if your child is of sufficient age and capacity to reason, so as to form an intelligent preference when deciding which parent will be awarded primary child custody,
• The courts ability to launch investigations surrounding the living conditions of the child,
• The court may allow the testimony of any person or expert,

• Should a determination by the court that family violence has occurred, the court may rule child custody go solely to the parent who fell victim to that behavior, and
• A court may award Child Visitation to a parent who committed family violence only if the court finds that adequate provision can be made for the physical safety and psychological well-being of the child and for the  safety of the parent who is a victim of family violence.

Hawaii laws allow that the court can order counseling, supervised visitation, joint child custody or modification of any previous order, as it sees reasonable and prudent.

  Co-parenting equally, where the child spends 1/2 the month with each parent (or alternates weeks) is becoming more common, but carries with it its own set of challenges. If you are considering this, it pays to consult with a child psychologist or another professional in this area.

 

An on-line Hawaii Parenting Plan makes setting up and agreeing to visitation schedules easier than ever before. If you are concerned that your ex-partner may not live up to his or her end of the child visitation bargain, and you want to keep close track of all parenting times, activities and missed visits, Custody XChange© is the ideal tool for you. This on-line parenting and child visitation platform offers, among other things, an on-line calendar for tracking and journaling parenting time. You can point to or share the calendars for upcoming months to prompt him or her to take good parenting as serious as you do, and at the same time demonstrate that you are keeping close track of all parenting time interactions. If he or she knows there is documentation, the game playing and threats of custody battles tend to go away. You now have control. Trust us on this. This time management system is worth it's weight in gold.

 

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

Download Hawaii Divorce Forms

[Based on Hawaii Code Title 580 - Chapter: 46]

Based on HI divorce law, a family court will declare the marriage contract has been broken; in an annulment, the court says that there never was a marriage (this is known as a nullity). Annulment is much more difficult to prove, and is more rare than divorce. A petition for a marriage annulment (sometimes called a marital annulment) is much like a divorce, except that the petitioner must meet a stricter test in proving grounds for the annulment request. Acceptable grounds for an annulment include:

• underage,
• another spouse still living,
• lacking mental capacity,
• consent obtained by force, duress, fraud,
• concealment of something important e.g. a disease.

 

Prohibited marriages include: Between ancestor and descendant, any degree, brother and sister half or whole-blood, uncle and niece, aunt and nephew legitimate or illegitimate; bigamous; same sex.   Read more on annulment

[Based on Hawaii Code Title 580 - Chapters: 21-29; 572-1, 2]

Hawaii divorce laws provide a framework for those going through the divorce process. The court can issue temporary orders for care, custody, education, and maintenance of children, subject to its own revision at any stage in the legal process. The judge may issue the following directives:

• Order the parties or either of them to provide for the support, maintenance, and education of the children,
• Order either party to provide support and maintenance to the other.

Income Withholding from the paying parent's earnings

The income of an obligor (the payor) will become subject to withholding, without regard to whether there is an arrearage or delinquency, upon the agency receiving a request for income withholding from the obligee and a determination made by the agency that income withholding is appropriate, or upon the agency receiving a request for income withholding from the obligor. If the obligor who receives income on a periodic basis becomes delinquent in making payments under a support order in an amount at least equal to the support payable for one month, the agency will issue an income withholding order that will include an amount to be paid towards the delinquency.

Child support obligations are in place until the child reaches 18 years of age, but may be extended to age 23 if the child is enrolled in an accredited higher educational institution.

 

In addition, temporary support may be ordered for the maintenance of the other spouse, and can be extended or made permanent with the final decree. Factors considered by the court may include:

• Financial resources of the parties,
• Ability of the party seeking support and maintenance to meet his or her needs independently,
• Duration of the marriage,
• Standard of living established during the marriage,
• Age of the parties,
• Physical and emotional condition of the parties,
• Usual occupation of the parties during the marriage,
• Vocational skills and employability of the party seeking support and maintenance,
• Needs of the parties,
• Custodial and child support responsibilities,
• Ability of the party from whom support and maintenance is sought to meet his or her own needs while meeting the needs of the party seeking support and maintenance.

If a legal or marital separation is pending, the court may make such further orders for the support and maintenance of either spouse and for the support, maintenance, and education of minor children, by either spouse, or out of the property of either spouse, as the court deems appropriate. If a marriage separation (sometimes referred to as a marital separation or legal separation) has been accepted, the court may make such further orders for the support and maintenance of either spouse and for the support, maintenance, and education of minor children, by either spouse, or out of the property of either spouse, as the court deemed appropriate.

 

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

[Based on Hawaii Code Title 580 - Chapter: 47]

The parties may petition for a legal separation and the court may grant the separation from 'bed and board' for up to two years if the court finds the marriage has been disrupted. The court will further decree for the support and maintenance of either spouse and for the support, maintenance, and financial support of any children of the marriage.

Applicants seeking legal separation often do so for religious reasons (to avoid the stigma of divorce) or to preserve health care or insurance coverage. The status of legal separation makes the parties effectively single and able to separate any and all financial dealings from the other. Either may petition the court to 'convert' the separation to a dissolution (divorce). How to file for separation is similar to how to file for divorce, in that the divorce papers are similar. To get it under way, see our divorce forms section, download a complete packet, fill out the forms, then call your local county clerk's office for directions on where to bring the finished forms.

 

 

State divorce laws make Hawaii an "equitable distribution" state. If the parties cannot reach a divorce settlement on dividing marital assets, the court will do so. Hawaii divorce laws determine that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The parties have the opportunity to come to a divorce settlement and not leave the settlement to the court. There is no fixed standard to divide property, as each case will be decided on its facts, and the trial court's discretion will not be disturbed on appeal without a showing of clear abuse.

[Editor's note: make sure you and your lawyer make certain you leave no stone untrained, as once the ink dries on this issue, it's pretty well set in stone]. Did you come into this marriage owning a house? Concerned about the equity in that house that you brought into the marriage? Worried about having a pre-marital asset be subject to a divorce settlement? Here's how it works generally:

What you brought into the marriage is usually all yours. However, any appreciation of the house or the property value is normally treated as a 'marital asset', meaning that you will likely forfeit a third to a half of that  appreciation to your spouse in the divorce.

When dividing and distributing the property and debts of the parties, Hawaii law lists the following guidelines that will be taken into consideration by a Hawaii divorce court:

• 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. 

Lock up the assets

If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

[Based on Hawaii Code Title 580 - Chapter: 47]

The divorce court has the ability to award temporary alimony (spousal support) after the initial filing of the case. In addition, the parties may be required jointly or severally to pay for any court costs the bench deems just, including compensation for witnesses, expenses at the trial, attorney's fees, and the like. Guidelines for alimony are taken largely from case law rather than provided by Hawaii state statute. The court may consider the following factors  when determining if alimony is to be awarded:

• Financial resources of the parties,
• Ability of the party seeking alimony to meet his or her needs independently,
• Duration of the marriage,
• Standard of living established during the marriage,
• Age of the parties,
• Physical and emotional condition of the parties,
• Usual occupation of the parties during the marriage,
• Vocational skills and employability of the party seeking support and maintenance,
• Needs of the parties,
• Custodial and child support responsibilities,
• Ability of the party from whom support and maintenance is sought to meet his or her own needs while meeting the needs of the party seeking support and maintenance,
• Other factors which measure the financial condition in which the parties will be left as the result of the action under which the determination of alimony is made,
• Probable duration of the need of the party seeking support and maintenance.

 

 

[Based on Hawaii Code Title 580 - Chapter: 47]

Developing a Child Visitation Schedule (co-parenting) in Hawaii is much like other states. The parents have the opportunity to create a parenting plan that includes the particulars of when the children will be with the non-custodian, but if they are unable to agree on a parenting plan, the court will make that determination itself. If a child is capable of forming an informed preference, a court will consider the wishes of the child in the custody determination. A typical visitation schedule for the non-custodian is every other weekend, one non-overnight weekday, alternating holidays, Father's and Mother's Days and a number of weeks in the summer.

Be aware that you have to guide your side of the divorce. Don't rely that your attorney will think of everything. You set the course; your lawyer navigates. Get very familiar with Hawaii divorce laws. If you anticipate any problems with child custody or visitation, we suggest you own Child Custody Strategies.

 

 

[Based on Hawaii Code Title 580 - Chapter: 46]

Divorces (dissolutions) may be granted to any applicant when any one of the following grounds for divorce are demonstrated:

• The marriage is irretrievably broken and there is no hope of getting back together,
• The parties have lived apart by separation agreement (2 years)
• Grounds for divorce will be accepted if the parties have not reconciled and shared bed and board during this time.

 

[Based on Hawaii Code Title 580 - Chapter: 41]

No divorce will be granted unless either party to the marriage has been domiciled or has been physically present in Hawaii for a continuous period of at least six months prior to filing for the divorce. Anyone in the military service residing on any military or federal base, installation, or reservation within the State or who may be present in the State under military orders will not be prohibited the above mentioned requirements.

 

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

[Based on Hawaii Code Title 580 - Chapters: 1]

Divorce petitions must be filed with the court at least 60 days prior to any decree of dissolution. In cases where separation is requested, 60 days of residency must have occurred immediately prior to the filing. In either case, the court has the option to declare an emergency and waive that 60 day waiting period requirement.

Hawaii residents may remarry after the divorce decree without restriction.

 

Divorce mediation is a process that allows a neutral third party (a mediator) to negotiate a divorce agreement between you and your spouse. One of the goals of the mediator is to work through disagreement while maintaining civility without the pressures of a court room setting.

The mediator does not make rulings or impose decisions on you; rather, he or she will listen, suggest or attempt to lead one or both of you to a mutual understanding. Mediation can be with you, your spouse and your attorneys, separately with one spouse and that souse's attorney, or with one of the parties alone.

The process is often as unique as the people who use mediation.

Mediation often revolves around custody, assets and debt and the time each parent will spend with the children. Often successful, mediation can vastly reduce the costs of divorce, avoiding the lengthy disagreements that go back and forth between attorneys.

Costs of the counseling and/or mediation will be borne by both or either party. The court may require the parents to attend parent education classes, and require them to be informed about how to prepare a parenting plan, what impact a family dissolution can have on children, the impact of domestic abuse on children, and any procedures that may help them arrive at an agreement.

 

[Based on Hawaii Code Title 580 - Chapter: 42]

In 2007, the Hawaii Supreme Court ruled that the lower courts must adopt a test of whether upholding the parent’s wishes could cause “harm” to the child, rather than the less stringent requirement of considering the best interest of the child.

That complicates the desires and efforts of grandparents seeking time with their grandchildren, and nearly always requires hiring a lawyer to represent their wishes.

State laws do not provide a clear picture on the rights of grandparents on visitation. The Hawaii State Supreme Court has instructed lower courts must adopt a test of whether upholding the parent’s wishes could cause “harm” to the child. At this writing, the lower courts have failed to do so.

 

 

 

 

How to file a divorce in Hawaii

As in all states, residency (lived in Hawaii for 6 months just prior to a filing) must be established before any petition for divorce, separation or annulment will be accepted by the court. Further, you must have been a resident of your judicial district for 3 months in order to file in that district.

You must be able to state that your marriage is irretrievably broken and must have lived separately from your spouse under a separate maintenance decree that has expired or a court decree that was issued more than two years or you must have lived apart from your spouse for more than two years without reasonable likelihood of reconciliation.

You must determine under what conditions you can finish your divorce. If it is to be an uncontested divorce, both you and your spouse must be in agreement on all issues related to custody of any children from the marriage, how much, by whom and how often child support will be paid, whether alimony will be paid and if so how much, the frequency and under what conditions alimony will terminate.

Forms you will need to begin the process for an uncontested divorce:

You will file your divorce as with or without children. Knowing which forms to use and which ones to discard can get tricky without instructions, so we suggest you obtain the packet of forms that suits your situation. You can obtain Hawaii divorce forms and instructions by download.

For file for an uncontested divorce, you will need the following forms:

• Complaint for Divorce
• Summons to Answer Complaint
• Matrimonial Action Information
• Motion and Affidavit for Service by Mail; Order for Service by Mail (if your spouse lives on another island/different judicial district)

*Additional forms will be required depending upon which forms pertain to your specific situation.

File Stamping of Documents

You must have all relevant forms and documents file-stamped by the Clerk in order to proceed toward a divorce. Each document also specifies if it requires a signature in front of a notary.

How much are the filing fees?

The filing fee is $175.00 if there are no minor children involved, or $225.00 if there are children involved (including step-children). You must pay the fee at the time you file your action. If you cannot afford the fees, you can file: Declaration in Support of Request to Proceed in Forma Pauperis. A judge will rule on your request to avoid the fees.

Filing Process

When you are ready to file, make sure all papers are in order, make several copies of each form (see instructions because some forms will require FIVE copies), leave one set of copies at home and bring the originals and copies to your local circuit family court. Be prepared to pay the filing fee at this time. [Note: you can eliminate the guesswork by downloading divorce forms with instructions].

If your filing is in order, you will receive instructions from the Clerk about next steps, and those next steps will depend on how you have filed e.g. with or without Affidavit of Plaintiff, Appearance and Waiver, etc.)

If you are filing, your spouse must respond to being served the paperwork within 20 days of being served. Failure to respond could cause the respondent to lose any say in the proceedings and/or final divorce terms. You may not personally serve your spouse, nor can you regular mail it. If you and your spouse have agreed to all terms and signed the Divorce Decree, your spouse must sign the Appearance and Waiver, acknowledging receipt of a file stamped copy of the Complaint and Summons and consents to the court granting the divorce without either party needing to appear in court. [If your spouse has signed the Appearance and Waiver, it is not necessary to sign the Proof of Service or Statement of Mailing].

When the divorce becomes final

Your divorce becomes final when the judge signs the Divorce Decree you have submitted. The court will send to each of you file-stamped copies in the stamped and addressed envelopes you each provided during the process.

 

See our discussion on Do-It-Yourself Divorce

General Information about basic divorce law from Legal Aid Society of Hawaii