The legal grounds for divorce in Hawai’i are simply that the marriage is “irretrievably broken.” This basically means that you and your spouse are no longer able to make your marriage work. The “irretrievably broken” language is something that our eminently wise legislators here in Hawaii’i came up with. California’s politicians apparently preferred “irreconcilable differences.” Ultimately, by whichever term is used, it comes down to one party’s judgment call as to when they feel their marriage is truly over.

The bottom line is that when either spouse decides they want a divorce, they can go out and get it. In a no-fault jurisdiction like Hawai’i, it takes only one person to initiate and force the issue whether or not the other spouse agrees that the marriage is over.

There are two basic forms of custody – legal and physical. Each of these can in turn be broken down into sole or joint custody.

Physical custody refers to where the child will physically reside – i.e., which parent the child will actually live with. Legal custody refers to the decision-making process as to exactly how the child is to be reared. This includes decisions on educational, medical, religious, and other major issues in the child’s life, but not day-to-day or routine parental decisions.

The traditional sole custody order granted both physical and legal custody to one parent, with rights of reasonable visitation to the other. Joint custody, on the other hand, means that both parents are fully involved in making decisions about the children, such as what school the children will attend, what sort of religious affiliation they should have, what types of extra-curricular activities they should be a part of, and where they should reside. Separate provisions can also be individually made for legal and for physical custody, and each of these custody configurations can in turn be handled on either a sole or joint basis. For example, custody provisions that grant joint legal custody while awarding one parent primary physical custody as well as an award of both joint physical and joint legal custody to both parents have become increasingly common. There is a growing trend toward joint custody as a means of encouraging the maximum involvement of both parents.

Joint physical custody also has the side effect of substantially reducing the monthly child-support amount (often cutting it roughly in half.)

All orders concerning child custody, visitation, and support are subject to modification based upon a showing of “changed circumstances.”

Sole vs. joint custody: advantages and disadvantages. Here is a recap of some of the pro arguments for joint custody: (1) Increased flexibility for parents to rearrange custody and parenting issues themselves, without always having to return to court. (2) A more equal sharing of the emotional, logistical, and financial burdens of childrearing. (3) Minimizes the problem of a child’s divided loyalties between the parents. (4) A viable option if, but only if, the parents still have an amicable relationship, communicate well (and often) with one another, and live near each other. (5) Works well for older children (between six to eighteen years) who are easy-going and malleable enough to go with the flow as they move from one parent to the other. (6) An arrangement which often more similarly reflects the joint child-rearing efforts of both parents “back when” the marriage and family was intact.

Joint custody can also have its disadvantages: (1) Frequent back-and-forth movement between parents may be quite stressful for some kids. (2) It limits the geographic mobility of the parents since they must generally continue to remain in Hawai’i, and on the same island, in order to physically reside near one another. (3) It may unrealistically raise the kids’ hopes that their parents will one day get back together. (4) It increases the number of issues and incidents for parents who are not on friendly terms to disagree about – since all decisions must be made jointly. (5) It may increase the likelihood of frequent returns to court if no agreements can be reached by joint decision makers. (6) Kids who require more stability/security in their lives, or who have difficulty with frequent changes or with adjusting to new situations, may not do well with joint custody. (7) It is particularly tough on younger kids (approximately aged one to six).

Hawaii (and almost all other states nowdays) have mandatory child-support guidelines in place. This means that the family court simply sets the appropriate amount of child support owed based upon a complicated computer generated child-support guidelines formula, which focus upon the monthly earnings of each parent (usually the gross earnings per month) and upon the needs of the child. The parties are no longer free to decide levels of child support on their own. Instead, the court must approve all amounts to be paid and will not generally allow child support to be lower, but generally has no problem with a figure higher, than the amount mandated by the child-support guidelines.

Usually, child-support payments are made until the child turns eighteen. However, in Hawai’i and many other states, payments can and will be extended through age twenty-three for a child who is still in college (or undertaking similar schooling) on a full-time basis. At any time, either spouse may ask the court to modify the amount of the payments based on a showing of changed financial circumstances. Unlike spousal support, child support money received is not taxable to the recipient custodial spouse. Neither can the payor spouse deduct it from his or her their taxable income.

The mechanics of child-support collection have toughened up too and now focus largely on wage assignments for child-support collection. Most family court judges now require that almost all child-support payments be deducted directly from the paying spouse’s paycheck and sent to the state or regional child-support enforcement agency, which in turn disburses the funds to the custodial recipient. These payments are made via a legally binding assignment of the wages of the payor spouse, and there are several enforcement tools and related severe penalties for slow and/or non-paying obligor parents, like tax refund interception and suspension of licenses and like state privileges and benefits.

Alimony (or spousal support, as it is often referred to nowadays) is money that one (wealthier) spouse pays to help support the other (needier) spouse after a divorce or separation has been filed. Either the divorcing spouses can agree, or else the court will decide, whether spousal support should be paid, who will pay it, how much it will be, and how long it will last.

Here is a short list of factors to be considered with regard to alimony in terms of both the length and/or term and the monthly amount of monies to be paid: (1) each party’s earning capacity; (2) the parties’ respective ages and physical and mental health; (3) the standard of living during the marriage; (4) the work experience, vocational skills, and educational levels of the dependent spouse; (5) the earning capacity and the ability of the payor spouse to make alimony payments; (6) the length of the marriage, and; (7) the needs of both parties.

In Hawai’i, the courts are somewhat reluctant to award alimony – in fact, it is ordered in less than 10 percent of all cases.

Under federal income tax laws, alimony provisions must be in writing and a divorce decree must state that alimony terminates on the payee spouse’s death in order for it to be a tax deduction on the payor’s gross income and be included instead as taxable income to the recipient. Alimony generally terminates when the payee spouse remarries.

Premarital property is generally classified as separate property. When you bring it into the marriage, it generally remains separate property and its value as of the date of the marriage gets returned to the original owner. This will be especially true so long as you have kept clear traceable records as to its date of marriage value, and especially if you have continued to handle it in a segregated fashion.

The “appreciation portion” of even separately held property will generally be divisible however and it usually gets divided in half regardless of whether or not the non-owner spouse assisted in any way and/or helped create the appreciation.

Inherited property received by either spouse during the marriage is generally treated similarly to property that was separately held at the outset of the marriage. Again, the principal balance of inherited property will go back to whomever inherited it, whereas the appreciation value will likely be divisible.

All other joint marital property will generally be divided in half regardless of title and/or whose name the property and/or asset is in…although as an “equitable division” jurisdiction, Hawai’i’s courts do have the power to deviate from an exact one-half each split and in rare instances they may instead award more than half to one spouse or the other.

Many of our clients tend to instinctively head toward a legal separation in the common situation where they have begun to experience some level of marital disharmony but aren’t quite ready for a full divorce. This is an ambivalent period of mixed emotions and half in / half out feelings. The legal grounds for separations are somewhat nonspecific – requiring only that the marriage be “temporarily disrupted.”

The court will approve a statutory legal separation for a period of two years in Hawaii. At the end of this time, however, you must then generally go ahead and finalize things one way or the other. If nothing is done, then at the end of the maximum separation time period, the parties are “back being married,” if you will.

The sad statistical reality is that, for most people, timid efforts at trial separations generally backfire and instead become only a prelude to divorce. Stated more simply, the parties tend to drift further apart not get closer together during the separation time period.

In Hawai’i (and nationwide), about 40 percent of all children are born out of wedlock. All the standard issues relating to determinations of custody and child support for these kids are processed through the family court system on its rapidly expanding paternity calendar. These generally include, like in a divorce case, child custody, visitation and support issues, but unlike divorce cases, the paternity court will also issue orders re: repayment of welfare benefits to the State, reimbursement of out-of-pocket medical expenses related to the child’s birth and perhaps most significantly, past child support since the child’s birth.

Note: Any unwed mother who applies for welfare nowadays will be compelled to name the alleged natural father as a prerequisite to getting her welfare payments. DNA tests will be ordered as necessary. Next, an order will be filed to have the proven father pay child support. Conversely, once he has been legally established to be the natural father, this new dad can demand to have visitation rights with his child or even seek to take primary custody, and child support, himself.

There are two types of guardianship proceedings; guardianship of a child and guardianship of an incapacitated person. A third party (other than the parents) may obtain guardianship of a child until the child turns 18 years old. Guardianship may be done by consent or on a contested basis, by a showing of that the parents are unwilling or unable to meet the child’s needs. Guardianship over a child does not terminate a parent’s parental rights, but does give the third party who is granted guardianship physical and legal custody over the child. A person may obtain guardianship of an adult upon evidence by a medial professional that the adult is unable to care for him or herself or meet his or her own needs. Either type of guardianship may be terminated upon a filing of a motion with the court.

Adoptions can occur either by consent of the parents or without a parent’s consent upon a showing that one or both parents have not had any contact or provided any care for the child for a specified period of time. Unlike guardianships, adoptions do terminate a parent’s parental rights and once granted, cannot be terminated upon filing of a motion. The birth certificate of the child will also be amended to reflect the adoptive parents as the natural parents of the child; essentially removing the birth parent(s) from any official records. Children over the age of ten years must consent to the adoption. Adult adoptions are also permitted and do not require consent by the parents.

Spouse abuse is probably the single most incendiary issue at the forefront of family law today. The sheer numbers are staggering. Somewhere between three to four million women each year nationwide are the victims of domestic violence right in their own homes. Physicians now warn that domestic violence poses the largest single threat of injury to adult women in this country (i.e., more than cancer, heart disease, etc.). One-third of all female murder victims are killed by their boyfriends or husbands. During the 1990s, somewhere in the range of twenty to thirty thousand domestic violence crimes against women were reported to the police across the country each week.

Faced with this spouse abuse spiral, government and law enforcement agencies now respond, aggressively, to spousal violence complaints. The legal situation nowadays is that an abuser will likely be going to jail. Increasingly, prosecuting attorneys are not allowed to settle or dismiss any of these domestic abuse charges, nor to make plea bargains. Governmental policy now dictates that abuse cases go all the way to trial. Mandatory jail sentences then follow any convictions, and such penalties all the more dramatic for repeat offenders.

Initial or emergency issues requiring expedited temporary relief are handled in Hawai’i by way of Motions for Pre-Decree Relief followed by a hearing at which some sort of Order for Temporary Relief is generally issued. At this initial temporary relief hearing stage the court will generally refuse to make any final determinations regarding custody, support, or property settlement. All these must wait until the time of the final settlement or trial. Instead, what the court will decide at the early stage of a case are those key initial issues which must be immediately resolved in order to avoid all hell breaking loose.

Immediate temporary custody, temporary child support, visitation schedules, interim alimony, and/or occupancy of the marital residence, advances on attorneys’ fees, debt servicing or other payments – all these issues are available on this temporary relief hearing calendar. Furthermore, they are available fast. Judges will often hear the temporary relief issues on a case within just a few weeks of its initial filing. Meanwhile, the remainder of the property settlement issues won’t be resolved until the case gets to trial, a year or so later.

Premarital agreements (also known as prenuptial or antenuptial agreements) are contracts entered into prospectively by two soon-to-be spouses before they get married, which essentially dictate, in advance, what the terms of the property settlement will be in the event of a divorce. In the old days, these documents were often viewed as not even being enforceable. In fact, there was a serious concern, from a public policy standpoint, that premarital agreements might tend to encourage people to divorce.

All that has now changed. Hawai’i, California, and many other progressive states (in fact, at last count, more than one-half of all states) have passed statues, such as the Uniform Premarital Agreement Act, which now clearly mandate that properly handled premarital agreements will indeed be binding documents.

The key criteria for a valid and enforceable premarital agreement are: (1) it must be entered into freely – without coercion, fraud, or duress; (2) both parties must have the opportunity to consult with independent legal counsel before signing the agreement; and (3) there must be a full disclosure of all the assets of both parties. The bottom line is that in many jurisdictions, including Hawai’i, properly handled premarital agreements, generally will be binding and enforceable.

The Uniform Marital Property Act which was approved by the National Conference of Commissioners on Uniform State Laws states that premarital agreements may contain the following:

• A specific advance determination of the respective rights and obligations of each of the parties in and to any of the property of either or both of them whenever and wherever acquired or located.
• An agreed upon format for the disposition of property upon separation, divorce, death, or the occurrence (or nonoccurrence) of any other event.
• The modification or elimination of spousal support.
• The making of a will, trust, or any other arrangement to carry out the provisions of the agreement.
• The ownership rights in, and disposition of, the death benefit from a life insurance policy.
• Any other matter, including personal rights and obligations, that is not in violation of public policy or a statute imposing a criminal penalty.

NOTE: The custodial rights of the parents and the right of their child to support may not be adversely affected by a premarital agreement (i.e., attempts to predetermine child custody awards in antenuptial agreements are not binding).

There is a significant trend in legal circles nowadays toward a process called Alternative Dispute Resolution (ADR). Mediation is probably the most popular of the ADR options for the divorce context. It should be utilized near the beginning of the case if possible.

Mediation takes a much more streamlined approach to quickly bringing the parties in the dispute physically together and starting them talking. They sit down in the same room with the mediator and/or other advisors and work on trying to settle their own case. It may sound overly simplistic, but once people actually try it, mediation generates an amazingly successful set of statistics. Mediation has proven particularly worthwhile in the divorce context. Our office’s experience has been that about 85 percent of all divorce cases can be settled in a properly handled mediation context.

A neutral professional mediator assists family members in clearly defining the issues that are in dispute during a marital separation or dissolution, and in reaching agreements that are in everyone’s best interest. The mediator does not take sides or make decisions for others, but instead helps participants communicate more clearly with one another.

Four of Coates and Frey’s attorneys are trained mediators and several of us have been mediating for well over twenty years. We have personally mediated literally hundreds of divorce cases during that period under our firm’s trade name Divorce with Decency. In our opinion, a conscientious and responsible divorce lawyer should make extensive use of mediation and other Alternative Dispute Resolution techniques whenever possible.