Divorce – State FAQ – Hawaii
Residency requirements, venue and procedures
Q: How long must I have lived in Hawaii prior to filing for divorce in a Hawaii court?
A: Hawaii requires that at least one of the parties to the action for divorce must have resided within the State of Hawaii for six months immediately prior to the filing of the action. The action is filed in the court of the circuit where the party has resided for at least three months prior to the commencement of the action.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is the Plaintiff, while the other party to the action is the Defendant.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Hawaii, proper venue for the divorce action is the Family Court.
Q: What is the title of the document initiating the action for divorce? The document granting the divorce?
A: The title of the action initiating the divorce is called the Complaint for Divorce, while the title of the action granting the divorce is the Decree of Divorce.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Hawaii. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Hawaii?
A: A divorce may be granted in the State of Hawaii upon a showing that one or more of the following grounds exist:
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 separation has expired, and no reconciliation has been effected;
3. The parties have lived separate and apart for a period of two or more years under a decree of separate maintenance and no reconciliation has been effected;
4. The parties have lived separate and apart for two or more continuous years immediately prior to filing of the action without reasonable likelihood of reconciliation, and it would not be harsh or oppressive to the defendant or against public policy to grant the plaintiff a divorce.
Simplified divorce proceeding
Q: If the parties agree on all issues, can a simplified proceeding be used?
A: Yes. In a divorce action where there are no contested issues and the parties agree that the marriage is irretrievably broken, the court may issue a divorce based upon the affidavits of the parties without requiring a hearing on the matter.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: Factors the court will consider in ordering alimony include:
1. The financial resources of the parties;
2. The ability of the party seeking support to meet his needs independently;
3. The duration of the marriage;
4. The standard of living established during the marriage;
5. The age, physical and emotional health of the parties;
6. The usual occupation of the parties during the marriage;
7. The vocational skills and employability of the party seeking support;
8. The needs of the parties;
9. Custodial and child support responsibilities;
10. The ability of the party paying support to meet his needs while meeting the needs of the party seeking support; and,
11. Any other factor the court deems equitable and just.
Q: On what basis does the court decide how marital property is divided?
A: Upon granting a divorce, the court will divide the estate of the parties, real personal or mixed, whether community, joint or separate as it deems just and equitable after consideration of the following factors:
1. The respective merits of the parties;
2. The relative abilities of the parties;
3. The condition in which each party will be left by the divorce;
4. The burdens imposed upon either party for the benefit of any children of the marriage; and,
5. All other circumstances of the case.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage. However, the court has wide latitude and is not bound to give separate property to its owner in every circumstance.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court may award custody of any children of the marriage to either party, based upon the best interests of the child. Factors the court will consider in awarding custody include:
1. The wishes of the child;
2. Any reports ordered by the court prepared by investigators or other professionals; and,
3. The relevant testimony of anyone with insight as to the child’s best interests.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Either or both of the parties may be ordered to pay child support as the court deems just and equitable after consideration of the factors enumerated in the Hawaii Divorce Information section of the Hawaii Divorce Main Page.