A Family Law Lawyer can advocate your choices regarding divorce, child custody, and many other important issues in family law. By choosing to have legal representation, you are assured of the court knowing more clearly your desired outcome which makes it more possible to reach that outcome.
Interspousal Agreements, Generally
With respect to marriages, three relevant agreements between the marital partners are possible:
(1) premarital or anti-nuptial agreements in contemplation of marriage (premarital agreements); Hawai’i has adopted the Uniform Premarital Agreement Act, defining these requirements.
(2) during-the-marriage agreements not in contemplation of divorce (marital agreements)
(3) during-the-marriage agreements in contemplation of divorce (divorce agreements)
Spouses may contract regarding marital property rights in premarital, postmarital, or settlement agreements. Premarital or prenuptial agreements are entered into before marriage, while settlement agreements are entered into after separation or anticipation of immediate separation.
Alimony (Spousal Support)
In Hawaii, and most other modern equitable division jurisdictions, alimony, together with the disproportionate division of the marital estate in favor of the low-earner spouse, can in the discretion of the Family Court be employed where appropriate to equalize the standard of living of the parties in the immediate post-separation period, and following the divorce itself. Since divorce is now epidemic, and long-term alimony is seen as an impediment to remarriage, which society favors, permanent alimony these days is rare.
The Family Court has broad discretionary authority to determine alimony and absent a manifest abuse of such discretion, the appellate court generally will not disturb the Family Court’s decision.
Rules Governing Alimony Claims
The Family Court can order alimony both before the divorce and following the divorce, it can reserve alimony, and it can modify alimony, if it has been ordered or reserved.
Alimony order is subject to modification upon a showing of material change in the physical or financial circumstances of either party, or upon a showing of other good cause.
Types of Alimony
In Hawaii, there are four types of alimony: (a) transitional alimony, (b) rehabilitative alimony, (c) permanent alimony, and (d) lump sum alimony.
(1) Transitional Alimony. The goal of transitional alimony is to allow the lower-earner spouse an opportunity to adjust to a reduced standard of living in situations where rehabilitative alimony or permanent alimony is not justified.
(2) Rehabilitative Alimony. The goal of rehabilitative alimony is to provide the alimony applicant with the opportunity to obtain further education and training so as to enhance future employability where the length of the marriage, the disparate economic circumstances of the parties, and all of the other relevant circumstances of the case are such as to justify support beyond transitional alimony.
(3) Permanent Alimony. The goal of permanent alimony is to provide lifetime financial support to a recipient two:
(a) due to his or her age, illness, infirmity, or disability cannot reasonably be expected to make substantial progress toward becoming self-supporting; or
(b) even though the recipient will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionable the disparate
(4) Lump-Sum Alimony. Under the following circumstances, the Family Court may consider a lump-sum payment of alimony to the recipient rather than periodic payments.
(a) Where the parties have substantial marital assets and the payor has minimal income.
(b) Where one party will be relocating out of state.
(c) Where there is a history of non-payment by the payor.
Effect of Alimony Recipient’s Cohabitation. The Family Court may consider the fact that the alimony applicant is living with a third party who is sharing living expenses.
Effect of Alimony Recipient’s Remarriage. Alimony terminates upon the alimony recipient’s remarriage unless the decree specifically provides that alimony is to continue after remarriage.
Modification of Alimony
General rule. The Family Court, upon a material change in the physical or financial circumstances of either party, or upon a showing of other good cause, may amend or revise any order and shall consider all proper circumstances and in determining the amount of the allowance, if any, which shall thereafter be ordered. The Family Court is presented with three questions when reviewing a request to modify court-ordered spousal support: (1) whether any of the relevant circumstances materially changed; (2) if so, whether there should be a modification; and (3) if a modification is warranted, what the modification should be. The first relevant circumstance is the payee’s need. What amount of money does he or she need to maintain the standard of living established during the marriage? The second relevant circumstance is the payee’s ability to meet his or her need without spousal support. Taking into account the payee’s income, or what it should be, including the net income producing capability of his or her property, what is his or her reasonable ability to meet his or her need without spousal support? The third relevant circumstance is the payor’s need. What amount of money does he or she need to maintain the standard of living established during the marriage? The fourth relevant circumstance is the payor’s ability to pay spousal support. Taking into account the payor’s income, or what it should be, including the income producing capability of his or her property, what is his or her reasonable ability to meet his or her need and to pay spousal support?
General Principles. An applicant for divorce must have been domiciled or physically present in the circuit in which the action is brought for a continuous period of at least three months next preceding the application for divorce. No divorce can be granted unless at least one party has been domiciled or physically present in Hawaii for a continuous period of at least six months next preceding the application. A person establishes his or her domicile by being physically present in Hawaii with the intention of remaining indefinitely.
Grounds for Divorce. There are four possible grounds for divorce
1. The marriage is irretrievably broken.
2. The parties have lived separate and apart under a decree of separation from bed and board, the term of the separation has expired, and there has been no reconciliation.
3. The parties have lived separate and apart for two years or more under a decree of separate maintenance and there has been no reconciliation.
4. The parties have lived separate and apart for a continuous period of two years or more immediately preceding the application for divorce, there is no likelihood that cohabitation will resume, and a divorce is otherwise appropriate.
Starting the Paperwork
A family court action for divorce is commenced by filing a complaint for divorce. The complaint must be signed by the applicant and may be signed “under penalty of perjury” in lieu of an oath.
The complaint and summons are delivered for service to a person authorized to serve process. The summons gives notice to the defendant that if the defendant does not appear and defend the action within 20 days after service of the summons and complaint upon him or her, further proceedings may be taken against him or her, including judgment for the relief demanded in the complaint, without further notice to him or her.
Service by Registered or Certified Mail. If the defendant is outside the circuit, the Family Court may authorize service by registered or certified mail with request for a return receipt and direction to deliver to the addressee only.
Notice by Publication. If it appears that the defendant has refused to except service by mail, or is concealing himself, or evading service, or that the plaintiff does not know the address or residence of the defendant and has not been able to ascertain the defendant’s whereabouts after reasonable and due inquiry and search for at least 15 days either before or after the filing of the complaint, the Family Court may authorize notice by publication in a newspaper that is suitable for the advertisement of notices of judicial proceedings and is published in Hawaii.
Temporary Relief While Divorce is Pending
Hawaii Law authorizes the Family Court to make a wide variety of orders during the pendency of an action for divorce. These orders include temporary custody and child support orders, temporary alimony orders, orders for the advance of legal costs, general and specific financial restraining orders against both parties and non-parties, orders regarding the pre-divorce use of accounts, the family home, and other assets, orders regarding insurance and beneficiary designations, orders regarding debt, and personal conduct restraining orders.
Financial Restraining Orders. A new law provides that when a complaint for divorce is filed, the Family Court shall without a hearing “order each of the parties to open [the] action to timely provide to the other party full financial and property disclosure on forms provided by the court, and order and restrain each of the parties to the action from transferring, encumbering, wasting, or otherwise disposing of any of their property, whether real, personal, or mixed, over and above current income except as necessary for the ordinary course of business or for usual current living expenses, without the consent and concurrence of the other party to such action…, or further specific order of the court.” The law further provides that the “concealment of or failure to disclose income or an asset, or the violation of a financial restraining order,” shall be considered as a factor in property division and shall also be considered in connection with a request for attorney fees and costs in a post-divorce modification or enforcement proceedings.
Residential Exclusive Occupancy Orders. Before the divorce is granted and while the divorce is pending, the Family Court has the jurisdiction to issue orders requiring either or both of the parties to leave the marital residence.
If requested, the court will make a child custody order, child support order, spousal support order and any other orders it deems appropriate.
The Family Court has exclusive original jurisdiction in matters of annulment. HRS 580-1. In order for the Family Court to exercise that jurisdiction, an applicant for an annulment must have been domiciled or been physically present in the circuit in which the action is brought for a continuous period of at least three months next preceding the application for annulment.
Grounds for Annulment
Under HRS 580-21, the Family Court may grant an annulment for any of the following grounds existing at the time of marriage:
(a) Where the party stood in relation to each other of ancestor and descendant of any degree whatsoever, brother and sister or the half as well as the whole blood, uncle and niece, aunt and nephew, whether the relationship is legitimate or illegitimate.
(b) Under circumstances where the parties, or either of them, had not attained the legal age of marriage. HRS 580-22.
(c) Under certain circumstances where either party had an un-divorced spouse living. HRS 580-23.
(d) Under certain circumstances were one of the parties lacked the mental capacity to consent to the marriage HRS 580-26.
(e) Under certain circumstances were one of the parties was impotent or physically incapable of entering into the married state. HRS 580-28.
(f) Where consent to the marriage of the applicant for annulment was obtained by force, duress, or fraud, and there is been no subsequent cohabitation.
(g) Where one of the parties was afflicted with a loathsome disease and the factor was concealed from, and unknown to, the applicant for annulment.
What is Paternity Establishment?
The creation of a legal fatherhood relationship between a biological father and his child when the father and mother of the child are not married at the time of the child’s birth.
When is Paternity at Issue?
a. Paternity is at issue when the biological father of a child and the mother of the child were not married when the child was born.
b. Paternity is at issue when the mother of a child is married to a man who is not the biological father of the child at the time of birth of the child.
c. Paternity is at issue for a child whose mother is divorced from a man who is not the biological father of the child for 300 days or less at the time of the child’s birth.
How is Paternity Established?
a. Paternity can be established by court order.
b. Paternity can be established by a voluntary establishment of paternity which is usually done at the hospital when the child is born.
Once paternity has been established, the court has jurisdiction to make child custody and child support orders.
Name Change Upon Divorce
Decree of divorce may allow either party, upon his or her request, to resume the surname used by him or by her prior to the marriage, or a surname declared and used during any prior marriage. One divorcing party may not, however, force the other party to change his or her name.
The Elements of Child Support. In Hawaii, parents are statutorily required to provide, to the best of their abilities, for the discipline, support, and education of their children. When parents divorce, Hawaii expressly authorizes the Family Court to compel the parents, or either of them, to provide for the support maintenance and education of the children of the parties and provision may be made for the support, maintenance and education of an adult or minor child whether or not the petition is made before or after the child has attained the age of majority.
In practice, child support is the combination of (a) periodic monetary support, (b) the maintenance of health care insurance for the benefit of children (and the payment of health care expenses not covered by insurance), (c) the payment of educational expenses of children, and (d) the provision of various forms of security for support to protect against nonsupport due to the support obligor’s death, disability, or voluntary non-payment.
Guidelines Amount is Presumptively Correct. Child support calculated pursuant to the Guidelines is presumptively the amount that should be ordered, and the party seeking deviation from the Guidelines has the burden of proving an exceptional circumstance. The guideline worksheet can be found on the State of Hawaii Judicial website for the Island of Oahu. The incomes can be filled in and the child support will be calculated.
Custody of Minor Children
Custody of children should be awarded to either parent or to both parents according to the best interests of the children. A 50/50 physical custody/visitation arrangement is rarely in the best interest of a child.
In determining a child’s best interest, the Family Court may look to the past and present conditions of the home and natural parents so as to gain insights into the quality of care the child may reasonably be expected to receive in the future and other factors for consideration may include the child’s own desires and his or her emotional and physical needs.
Natural Parents vs Others. The right to conceive and raise children is an essential-basic civil right. Parents have a fundamental liberty interest of natural parents in the care, custody, and management of their children
Under certain conditions, reasonable visitation rights can be awarded to siblings as well as to parents grandparents and any person interested in the welfare of the child in the discretion of the court.
When the divorce complaint is filed, the parties are given notice to attend a judicial sponsored program (on Hawaii Island, it is called Kids First) regarding child custody and visitation issues. The parent who feels the need for a child custody order will file a motion with the court to obtain a child custody order. The motion is given a court date and then is to given to the other parent.
At the court date, the court has many options. Sometimes the court will refer the parties to a community based mediation program and set a later hearing date. The court will usually make temporary orders pending resolution.
If the parties are really in disagreement, the court can appoint a guardian ad litem to represent the interests of the child and then set a later hearing date for the guardian to come to court to inform the court of situation.
The court may also appoint a child custody evaluator. This can be a psychologist or specially trained attorney. The evaluator talks to the parents, the child, the teachers or other persons with information about the child. The evaluator then makes a recommendation to the court regarding the best interests of the child.,
Before or after doing all of the above, the court may set the case for an evidentiary hearing which means that the parties will have a chance to testify about what if best for the child and can also have witnesses testify.
Desires of Child. Pursuant to Hawaii law, 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 Family Court.
The Family Court is not required to take the testimony of a minor child in order to consider and give “due weight” to his or her wishes.
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