Couples divorcing in Hawaii have to decide several important issues that get spelled out in a final Divorce Decree issued by the Family Court: custody and timesharing of children; child support; division of the parties’ assets and debts; and alimony (aka spousal support). A typical Divorce Decree is 15-25 pages of legal details spelling out the parties’ rights and obligations within these broad categories.
Many couples need the assistance of legal counsel and the Family Court to resolve the complexities of their divorce. In other words, they have a contested divorce. Early in the divorce process, the parties will frequently file a Motion for Pre-Decree Relief asking the Court to resolve certain issues on an immediate and temporary basis, such as physical custody and timesharing of children, temporary alimony, and residential matters.
After the Court issues temporary orders to resolve pressing matters, the parties will usually engage in discovery by doing depositions, serving requests for production of documents, and requests for answers to interrogatories. The purpose of discovery is to learn the facts that will help prepare for settlement and trial.
After discovery, the Court will usually require the parties to engage in mediation in an effort to settle. We strongly advise using a private mediator with extensive experience litigating family law matters; many of our favorite mediators are former Family Court judges and prominent family law attorneys. We can also assist parties who choose a low cost option such as Mediation Center of the Pacific.
If the parties cannot resolve their divorce through mediation, they will need to file a Motion to Set asking the court to set their case for trial. The court will hold a hearing on the motion, and if the parties are ready to proceed to trial, the court will set a trial date along with attendant deadlines. Even after the court sets a divorce for trial, the parties will have additional opportunities to settle their divorce at a settlement conference with the judge and/or with the assistance of a Volunteer Settlement Master appointed by the court.
If all else fails, the parties proceed to trial and present their case to a Family Court judge who makes the final decisions regarding the remaining contested issues. Most trials are 1-2 days in duration and are held on Monday and/or Tuesday. Each side has the opportunity to present witnesses, documents and testimony supporting her positions. The court then issues a Decision and Order that forms the basis for the final Divorce Decree.
A typical contested divorce takes six months to two years to resolve depending upon the complexity of the case and the level of acrimony between the parties. Most contested divorces resolve themselves without the need for a final trial because the parties eventually reach agreements.
Couples who are fortunate enough to have an amicable relationship with their spouses can process an uncontested divorce if they can reach agreements regarding each of the areas outlined above. Our strong advice is to hire an attorney to help you process your uncontested divorce in order to avoid mistakes that can cost many thousands of dollars to fix later.
This website contains only general information and readers should not take any actions without first consulting a qualified attorney about their specific situation.
Different lawyers define the term differently. In my practice, I consider a divorce “uncontested” if the parties reach an agreement on all issues before filing the divorce action and the other party signs a divorce decree and supporting documents that I prepare for my client. If the other party files a court action, hires a lawyer, refuses to sign the decree, or otherwise fails to cooperate, then the divorce is “contested.”
In the old days, a spouse seeking a divorce had to prove adultery, desertion or cruelty by the other spouse. In Hawaii (and most other states), that is no longer the case. A divorce can be obtained without proving “fault” on the part of the other spouse. In fact, the conduct of the spouses is generally irrelevant to the issues in a divorce case, with two major exceptions: (1) the personal conduct of a parent may be relevant in a child custody dispute, and; (2) financial misconduct by a spouse may be relevant to the division of assets and debts, or other financial issues in the divorce.
No. A lawyer can only represent one client in a divorce case, and is prohibited by ethics rules from representing both sides. In an uncontested divorce, my client is typically the “plaintiff,” the one who is initiating the divorce. If the other spouse, the “defendant,” chooses not to retain an attorney and signs the divorce decree that I prepare, then the divorce is uncontested.
A default occurs where the other spouse, after having been provided with the documents that initiate a divorce case, fails to respond in the time allowed by court rules. Generally, a party served with a summons in a divorce case must file an answer with the court within twenty days. If no answer is filed, the other party may proceed to get a divorce. The typical default divorce occurs when the spouse seeking the divorce simply cannot locate the other and must publish the summons in the newspaper, although default divorces occur in other circumstances, too. This is not the same as an uncontested divorce, where the other spouse is an active, but cooperative, participant in the process.
In order to file for divorce in Hawaii, you must have a valid marriage and you must be “domiciled” in the State of Hawaii at the time you file. You are domiciled here if you are physically present with the intent to remain for the foreseeable future. If, for some reason, you have to relocate from Hawaii before the divorce is granted, you can still finish your case so long as you were domiciled here when you started it.
You may still file for divorce here, but the court will not have the authority to make awards of assets and debts that are not located in the State of Hawaii unless your spouse agrees
Predicting the length of a divorce case is extremely difficult. As a general rule, an uncontested divorce will take about ninety days, assuming that the parties have agreed on all issues and are responding promptly, and assuming that the court is not overly congested. A contested case requiring a full-blown trial on major issues such as custody, visitation, support, or division of the marital estate will usually last about a year. Cases which settle short of trial fall somewhere in the middle.
Many clients are in crisis at the beginning of a divorce case and need temporary orders for custody, support, exclusive use of a home or vehicle, payment of customary expenses, or protection from financial manipulation. The Family Court permits either party to a divorce case to file a “Motion for Pre Decree Relief” to obtain temporary orders. Usually, these motions are heard on Wednesday afternoons, about three to four weeks after filing. In an extreme emergency the court can be requested to act sooner. In addition, the filing of a divorce complaint triggers the issuance of an Automatic Restraining Order which prohibits disposal of assets, removal of children from the island, termination of health insurance coverage, and other things.
The law does not require married people to live together. If spouses wish to live apart, they are free to do so without a court order. If they can agree on how to handle their children and financial affairs while living apart, so be it. It is only when they cannot agree on these matters that a Separation Decree will provide temporary orders relating to custody, visitation, support, use of assets and payment of debts. In Hawaii, a Separation Decree is valid for two years, then it automatically dissolves. A Separation action in the Family Court is not cheaper or faster than a divorce. In most cases, parties who decide to live apart and whose relationship is so dysfunctional that they need a court to issue temporary orders, are likely to be headed for divorce anyway. The “Motion for Pre Decree Relief” in a divorce action is usually a faster and better solution. I rarely recommend or commence a separation action.
An annulment requires specific proof that the marriage was invalid at the time the parties entered into it. A marriage is invalid if the parties are closely related (an uncle marrying his niece, for example), if one of the parties was underage, if one of the parties was already married to someone else, lacked mental capacity or was afflicted with a “loathsome disease” unknown to the other. An annulment may also be had when the party seeking annulment was the victim of force, duress or fraud, provided there has been no cohabitation (i.e., living together) after the marriage. In Hawaii, it is not a ground for annulment that the marriage was short or that the parties did not have sex. Annulments are extremely rare and difficult to obtain.
If the parties reconcile and desire to remain married it is a simple matter to dismiss the divorce case by agreement any time prior to the entry of a divorce decree. Once a divorce decree has been signed by a judge and filed with the clerk of the court, the divorce is final. However, the parties are free to remarry if they wish.