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Hawaii Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in Hawaii, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
No absolute divorce from the bond of matrimony shall be granted for any cause unless either party to the marriage has been domiciled or has been physically present in the State for a continuous period of at least six months prior to filing for the divorce.
A person who may be residing on any military or federal base, installation, or reservation within the State or who may be present in the State under military orders shall not thereby be prohibited the above mentioned requirements.
The divorce should be filed in the judicial district the plaintiff resides or the judicial district the spouses last lived together as a married couple. (Hawaii Statutes - Title 580 - Chapters: 1)
Grounds for Filing:The Complaint for Divorce must declare the appropriate Hawaii grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
The family court shall decree a divorce from the bond of matrimony upon the application of either party when the court finds:
(1) The marriage is irretrievably broken;
(2) The parties have lived separate and apart under a decree of separation from bed and board entered by any court of competent jurisdiction, the term of separation has expired, and no reconciliation has been effected;
(3) The parties have lived separate and apart for a period of two years or more under a decree of separate maintenance entered by any court of competent jurisdiction, and no reconciliation has been effected; or
(4) The parties have lived separate and apart for a continuous period of two years or more immediately preceding the application, there is no reasonable likelihood that cohabitation will be resumed, and the court is satisfied that, in the particular circumstances of the case, it would not be harsh and oppressive to the defendant or contrary to the public interest to a divorce on this ground on the complaint of the plaintiff. (Hawaii Statutes - Title 580 - Chapters: 41)
Filing Spouse Title:Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:Family Court. This is the Hawaii court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Complaint for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to Hawaii law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Matrimonial Action Information Sheet, Marital Settlement Agreement, Income and Expense Statement, and Appearance and Waiver.
Court Clerk's Title:County Clerk's Office of the Family Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since Hawaii is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
If the parties can not otherwise agree, the court shall take into consideration when making a property award the following: 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, and all other circumstances of the case. (Hawaii Statutes - Title 580 - Chapters: 47)
Restoration or Name Change:When in a divorce proceeding either party to the proceeding requests to resume the middle name or names and the last name used by the party prior to the marriage or a middle name or names and last name declared and used during any prior marriage and the court includes the change of names in the divorce decree. (Hawaii Statutes - Title 574 - Chapters: 5)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
In addition to any other relevant factors considered, the court, in ordering spousal support and maintenance, shall consider the following factors: (1) Financial resources of the parties; (2) Ability of the party seeking support and maintenance to meet his or her needs independently; (3) Duration of the marriage; (4) Standard of living established during the marriage; (5) Age of the parties; (6) Physical and emotional condition of the parties; (7) Usual occupation of the parties during the marriage; (8) Vocational skills and employability of the party seeking support and maintenance; (9) Needs of the parties; (10) Custodial and child support responsibilities; (11) 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; (12) 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 maintenance is made; and (13) Probable duration of the need of the party seeking support and maintenance.
The court may order support and maintenance to a party for an indefinite period or until further order of the court; provided that in the event the court determines that support and maintenance shall be ordered for a specific duration wholly or partly based on competent evidence as to the amount of time which will be required for the party seeking support and maintenance to secure adequate training, education, skills, or other qualifications necessary to qualify for appropriate employment, whether intended to qualify the party for a new occupation, update or expand existing qualification, or otherwise enable or enhance the employability of the party, the court shall order support and maintenance for a period sufficient to allow completion of the training, education, skills, or other activity, and shall allow, in addition, sufficient time for the party to secure appropriate employment. (Hawaii Statutes - Title 580 - Chapters: 47)
Counseling or Mediation Requirements:If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the complaint and the prospect of reconciliation, and shall: (1) Make a finding whether the marriage is irretrievably broken, or (2) Continue the matter for further hearing not less than thirty or more than sixty days later, or as soon thereafter as the matter may be reached on the court's calendar and may suggest to the parties that they seek counseling. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken. (Hawaii Statutes - Title 580 - Chapters: 42)
Child Custody:When minor children are involved in a divorce, the Hawaii courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
Custody should be awarded to either parent or to both parents according to the best interests of the child, and the court may also 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.
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.
When domestic violence is an issue, the court will consider the following: (A) The primary factor the safety and well-being of the child and of the parent who is the victim of family violence; (B) 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; and (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. (Hawaii Statutes - Title 580 - Chapters: 46)
Child Support:Hawaii child support guidelines uses the Percentage of Income formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support.
In establishing the amounts of child support, the court shall use the state child support guidelines. Provision may be made for the support, maintenance, and education of an adult or minor child and for the support, maintenance, and education of an incompetent adult child whether or not the petition is made before or after the child has attained the age of majority.
In addition to any other relevant factors considered, the court, in ordering spousal support and maintenance, shall consider the following factors: (1) Financial resources of the parties; (2) Ability of the party seeking support and maintenance to meet his or her needs independently; (3) Length of the marriage; (4) Standard of living during the marriage; (5) Age of the parents; (6) Physical and emotional condition of the parties; (7) Usual occupation of the parties during the marriage; (8) Vocational skills and employability of the party seeking support and maintenance; (9) Other factors which measure the financial condition in which the parties. (Hawaii Statutes - Title 580 - Chapters: 47)
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The family court of Hawaii awards custody of children to either parent or both parents according to the best interests of the children.
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