Requirements for Divorce in Hawaii
Hawaii is a no-fault divorce state.
To file for divorce in Hawaii, either your spouse or you must live in the state for six months continuously before filing for divorce.
The spouse doing the filing needs to live in the same county for three months, and they need to file in that county’s court
There is no “cooling down” or waiting period in Hawaii
There is no requirement for counseling for a divorce.
Hawaii grounds for divorce
Legal separation and divorce are two varied processes in Hawaii:
Legal Separation
Legal separation does not end the marriage, but the spouses who are legally separated don’t act as a couple. If the couple is able to sort out their differences, then legal separation lets them resume their marriage without re-marrying again.
Read our Legal Separation 101 article for more details.
Divorce
Divorce, on the other hand, dissolves the marriage except for the support and custodial agreements made by the couple when they were married.
Since Hawaii is a no-fault state, there is no need for any wrongdoing by either spouse for a divorce, all that is needed are “irreconcilable differences.”
Grounds for divorce
The divorce grounds are:
The marriage is “broken irretrievably”.
Both spouses should have lived separately and apart under the “decree of separation” from bedding and boarding, which has been entered by the court, and the separation term has ended and there has been no reconciliation.
Both spouses have lived separately and apart for 2 years or more under the “decree of separate maintenance”, which has been entered by the court and there has been no reconciliation.
Both spouses have lived separately and apart for 2 years or more just before filing for divorce and there is no likelihood of them to resume cohabitation.
Step 1: Starting your Hawaii divorce
To begin the divorce process in Hawaii, you must fill out the required documents. The forms are available online; however, they vary from one island to another and you must fill out the forms that are relevant to the place where you are filing for divorce and also appropriate for your situation i.e. if you have kids or not.
Documents Needed for Filing for Divorce
Generally, you can find 2 types of divorce packets – divorce without children and divorce with children. There are also separate packets for the plaintiff and for the defendant and you must choose the packet as per your situation. The packets come along with instructions which will guide you through the entire process.
Some of the basic forms that are needed to file for divorce in Hawaii are:
Complaint for Divorce: Identifies the spouses filing for divorce, has details about the history of the marriage, grounds, number of children and the relief sought by the 2 parties.
Summons to Answer Complaint: States that the defendant has around 20 days in which he/she must file an answer otherwise he/she will face a default judgement.
Matrimonial Action Information: Provides information about the parties and their children.
Proof of Service: This is filled in by the person delivering the complaint and summons to the defendant as proof that the papers have been delivered to the defendant.
Appearance and Waiver Worksheet: When this form is signed by the defendant, it acknowledges that he/she has received the copy of the divorce complaint and summons that have been filed.
Affidavit of Plaintiff (for Uncontested Divorce): This requests the court to grant divorce since it is more than 20 days since the complaint and summons have been served and there is no response from the defendant.
Divorce Decree (With or Without Children): This has all the terms and conditions of the divorce and must be signed by both the parties in the case of an uncontested divorce.
These are only some of the basic forms and you can check for the complete list of forms on the court’s website.
Filing Your Divorce Forms
When you have completed the forms, then make 2 copies of all the forms. The original will be filed with the local court, one copy will be given to your spouse and the other copy will be kept with you. You must file your papers along with the prescribed fee unless you fill the affidavit to waive filing fees and ex parte motion.
The court will review this and if the judge decides that the filing fee can be waived because you cannot afford it, you will not have to pay the fee for filing your divorce complaint. The documents will be stamped by the court clerk, who will also assign a file number for your case, which must be mentioned on all your divorce documents.
The most important aspect of getting a divorce in Hawaii is to understand how the courts work in the state. All divorce proceedings are usually handled by the family courts and on basis of the geographical location, the courts are divided into different judicial circuits and you must file your papers in the correct circuit. Each circuit has forms, processes and fees that are slightly different from one another.
Step 2: Serving your spouse
Once the divorce forms are filled out and filed, you must serve your spouse immediately. Hawaiian law requires the plaintiff to serve copies of the complaint, summons and other documents that have been file stamped, which essentially means that you must give your spouse the document copies that have been file stamped by the court clerk when you filed the divorce complaint.
As a respondent, if you live in Hawaii, within 20 days, you must respond to the divorce petition and summons, otherwise, your spouse will get all that he/she requested in the petition, without your input (default judgement).
If your spouse does not have a lawyer, then you must serve your spouse directly at his/her home address. However, if your spouse has hired a lawyer, then you must serve the lawyer at his/her office and you must not send any copies of the papers to your spouse.
You must serve your spouse in one of the ways mentioned below:
If your spouse and you agree about all the issues of the divorce, then the defendant should sign the “Appearance and Waiver”.
By personal service, where the documents will be handed over to your spouse by a person who is 18 years or older and who is neither the defendant nor the plaintiff or by a private process server.
If your spouse lives on another island, then you can serve him/her via registered or certified mail (restricted delivery). The return receipt must be signed by your spouse, which must be then filed with the court.
When you serve your spouse the initial papers, you cannot use regular, first-class mail; however, the rest of the papers can be hand-delivered or sent by first-class mail. If your spouse is in jail or in the military or unable to locate, then different service rules are applicable, which you must check with the court clerk.
Step 3: Uncontested or contested?
Contested Divorce (High Costs)
If your spouse and you are unable to agree on some or most of the terms of the divorce, then the divorce becomes “contested” and will go to trial, where it will be heard by a judge, who will make decisions on the various issues for you.
Since a contested divorce is more complex, it is a good idea if both your spouse and you hire a lawyer, who will present and fight the case in court on your behalf. If you can avoid this, it’s definitely in your best interest to do so because of the costs and emotional roller coaster that’s involved.
Uncontested Divorce (Low Costs)
If your spouse and you agree on all the main issues of your divorce, then you can get an uncontested divorce, which means that you can simply take all the completed forms to the court and let the judge review them, sign the papers and mail them back to you. Uncontested divorces are cheaper, quicker and the process is painless compared to going to court and arguing about all the issues in front of the judge.
In Hawaii, you can get an uncontested divorce only if you meet the residency requirements, apart from which, each judicial circuit has a requirement for supplemental residency.
For instance, if you want to file for divorce in the First Circuit, then you should have been residing in Oahu for a minimum of 3 months before filing for divorce; however, once you file your divorce petition, there is no waiting period.
Step 4: do it yourself or get an attorney?
DIY divorce papers (Slower & Least Costly)
You can handle your divorce on your own without a lawyer in Hawaii. For this, you must first complete all the necessary documents, which you can get online. The forms vary from one island to another, so, you can begin by going to the State Judiciary website of Hawaii and choose the island where you live or if you have been served, you must choose the island where the divorce papers were filed.
You will be taken to the correct court, where you can get the forms required. Although the websites and the forms are official, you should check with the local court to ensure that the forms will be accepted by the judge. Respond to all the questions completely and fill the forms either on the computer or write it out neatly.
Usually, there are 2 types of packets available, for a divorce with children and without children. There are also separate packets for the defendant and the plaintiff and you must choose a packet according to your situation. The packets also include detailed instructions that help you through the entire process.
You can avoid going to court, but only if you do everything correctly. If you make any mistakes in the divorce forms, the judge may have concerns or questions about them and if this occurs, your spouse and you must appear in court and provide explanations, which can delay your divorce.
Online Divorce Services (Fastest & Inexpensive)
Filling up the documents to file for divorce can be confusing and time consuming and so if you need assistance in completing the documents, but don’t want to hire an attorney, you can use the services of an online divorce service.
You can get started with an online provider like 3stepdivorce.com and you can have your paperwork done in a day for $299.
They give you step-by-step instructions and walk you through the process of filling your forms and for their service, the online service will charge you a fee. Once your papers are completed, you can simply take a print out and file them in the appropriate courthouse with the filing fee.
Attorney Divorce Trial (Longer & Expensive)
If your spouse and you are not able to come to an agreement on the various issues of the divorce, then your case will go to trial where it will be heard by a judge in court. In this situation, it is best to always get a lawyer to ensure that you get whats owed to you and can make the process easier.
The judge will then make the decisions regarding the issues that you do not have an agreement on with your spouse such as division of property, child custody, support and visitation, spousal support, etc.
Step 5: The big issues
Hawaii Property Division
Hawaii is an “equitable distribution” state and the marital property is divided equitably. The court usually encourages both spouses to reach an agreement on all the issues related to the property and debts, otherwise, the property division will be decided by the court.
In the case that both spouses are unable to agree on the property division, the court considers the following while making a decision — the merits of each spouse, the capabilities of each spouse, the condition that the divorce will leave each spouse in, the burdens forced on each spouse for the benefit of their children and any other relevant factors that may affect the case.
Alimony (Spousal Support)
When awarding spousal maintenance and support, the court will consider the following aspects:
Financial resources of both spouses.
Length of the marriage.
Age of each spouse.
Emotional and physical condition of each spouse.
Occupation of each spouse during their marriage.
Ability of the spouse seeking support to meet his/her needs independently.
Standard of living of both spouses during their marriage.
Employability and vocational skills of the spouse seeking support.
Needs of both spouses.
Child custody and support responsibilities.
Capability of the spouse from who support is sought to meet his/her own needs while supporting the spouse seeking support.
Other factors measuring the financial condition that the spouses will be left in as a result of the spousal support.
Expected duration of the need of the spouse seeking support.
Hawaii Child Custody Laws
In case of the involvement of minor children, the court will ensure all that is possible to reduce the emotional trauma experienced by the children. And, if the two parents cannot agree about the issues regarding the children, the custody order will be passed by the court at its discretion.
The court will decide whether to award the custody to either of the parents or both parents as per the interests of the child. The court will also consider the continuing, frequent and meaningful contact of the child with each of the parents unless a parent is not able to act in the best interests of the child.
The court will grant reasonable visitation rights to the parents, siblings, grandparents and any other individual who is interested in the welfare of the child. The court will also consider any instances of domestic violence before determining child custody.
Hawaii Child Support Laws
In Hawaii, child support is calculated on basis of the percentage of income formula, which is a percentage of the income of the spouse who does not have custody of the child. The court will make provision for the education, support and maintenance of a minor or for an adult child who is incompetent.
Step 6: Finalizing your divorce in Hawaii
Once the motion for divorce, as well as the answer are filed, the court will schedule a date and time for the hearing, where both parties must make an appearance and present their arguments, testimonies, etc. The judge will issue a decision after hearing both parties. The judge may issue an order immediately or you may sometimes receive it later via mail.
If you are unable to agree on the terms of the divorce with your spouse, both of you may consider mediation, which essentially involves a third party to resolve issues such as property division, child custody, child support, etc. Your spouse and you can discuss these issues and arrive an agreement acceptable to both of you. Usually, attorneys and judges do not attend mediation sessions and legal procedures are not applicable to mediation.
Your divorce becomes final when the judge signs the divorce decree, which dissolves your marriage. The divorce is also a lasting order for any of the disputed issues. Once you get your divorce decree, you may have to wait for some time (between 1 day to 1 year) before you can remarry.