In Hawaii, a person can obtain a divorce without demonstrating that the other party is at fault provided that one can establish: (1) that he or she has met the basic jurisdictional requirements of residency; and (2) that the marriage is irretrievably broken or that the parties have lived separate and apart for two or more years under a decree of separation or otherwise.
Divorce is the final step in ending a relationship that involves the co-mingling of finances, assets, debts, and many times the sharing of children. These are the core issues in any divorce. The Family Court will often determine that assets and debts of the marital estate are to be divided equitably, unless certain exceptions apply. In the matter of custody, the Family Court will base any decisions of custody on what is in the best interests of the children involved.
With respect to custody, the Family Court will address two distinct forms: legal custody and physical custody. Legal custody pertains to major decisions involving a minor child, such as non-emergency medical treatment, religion, choice of schools, advancement or retention in school, participation in extracurricular activities, the management of any substantial monies received by the child, decisions involving serious discipline problems of the child, and so on. Physical custody, on the other hand, pertains to the actual day-to-day care of a child, and involves the daily decisions relating to such care, like bed-time, meals, clothes to wear, doing homework, and so on.
Legal custody and physical custody can be awarded either jointly to both parties, or solely to one party. With respect to physical custody, the non-custodial party will have rights to visitation, which may be every other weekend or, in certain instances, more extensive. If there are concerns about the ability of a parent to safely spend time with a child, the Family Court could order that such a parent only be allowed supervised visitation.
The Family Court, with the agreement of the parties, may appoint a custody evaluator to assist in determining what is in the children’s best interests. The custody evaluator will then interview parents, teachers, relatives, and other significant parties and thereafter report to the Family Court a non-binding recommendation on custody.
Child support is awarded pursuant to standard Child Support Guidelines, and is usually paid by the non-custodial parent to the custodial parent. Child support, under certain situations, may continue until a child completes college
Frequently, when parties file a divorce, there is a need to immediately determine financial rights and liabilities, as well as child custody and support. This is done through a Motion for Pre-Decree Relief, which will determine the rights of the parties temporarily, pending the final divorce decree.
Sometimes, following a divorce, the parties may seek a change in the custodial award set forth in the divorce decree, or they may otherwise seek to enforce the divorce decree in terms of financial awards, custody, visitation, or child support. This is done through a Motion for Post-Decree Relief, which will determine the rights of the parties in a post-divorce setting.
All of the above is a very brief sketch of a divorce proceeding. Every case is different, and every wife or husband has unique issues that can only be addressed by sharing the details of a marriage with an attorney, and obtaining a specific assessment with respect to the distribution of marital assets and debts, custody and child support.
If you are a wife or husband contemplating a divorce or you are considering a post-divorce motion, and you would like to discuss your rights and options, please contact us for a free consultation so that we can determine the best way to protect your interests as a spouse or parent.