Divorce

Divorce

Top Questions Regarding Divorce in Hawaii

In Hawaii can a spouse get divorced even if the other spouse objects?

Yes. In Hawaii a spouse can get divorced even if the other spouse objects, as long as the first spouse files a Complaint For Divorce stating that the marriage is irretrievably broken.

Is Hawaii a no-fault divorce state?

Yes. Hawaii is a no-fault divorce state, which means that in order to get divorced a spouse does not have to prove that the other spouse did anything wrong such as had an affair.

Does it matter who is the "plaintiff" and who is the "defendant" in a divorce case?

No. Often the "plaintiff" is the initiator in the divorce case (the spouse who wanted a divorce first), although this is not always the case. There is no stigma attached to being the “defendant” in a divorce case, like how there is a stigma attached to being the “defendant” in a civil case or a criminal case because it implies you did something wrong.

What is the difference between uncontested divorce vs. contested divorce?

Uncontested divorce is when the spouses have an agreement that is set forth in a divorce decree. Contested divorce is when the spouses cannot agree on a significant issue in their divorce case and they need the assistance of third party(ies) to help them resolve this issue. These third parties can be: their attorneys; a neutral mediator or other neutral professional such as Parenting Counselor or Parenting Coordinator; and/or a Judge.

What is the difference between how divorce cases should be handled vs. how other types of cases such as personal injury cases and criminal cases are handled?

Divorce cases should be handled by the divorce attorney guiding the client to “go gray.” Divorce law and divorce procedure often provide guidance as to how legal issues will be resolved if a Judge has to rule on them. A good divorce attorney should encourage his/her client to take positions and make requests that are consistent with this guidance.

Additionally, a good divorce attorney should recognize that a highly adversarial approach will unnecessarily hurt other family members who are already hurting, such as the children. Thus, a good divorce attorney will be mindful of how his/her actions and his/her client’s actions affect other family members and will strive for reasonable solutions that take into account all family members.

Finally, a good divorce attorney should recognize that in a divorce case the spouses are dividing a limited amount of resources (income and assets) that previously had been used to support 1 household, although this limited amount of resources is now being divided up to support 2 households. Thus, a good divorce attorney will not unnecessarily incur attorney’s fees and costs, and instead will be a good conservator of clients’ limited financial resources. If divorcing couples do not watch what they fight over, they could end up spending the money that they would have otherwise spent on their children’s private education expenses or college expenses on their attorneys instead, so that ultimately their attorneys can use this money to pay their own children’s private education expenses or college expenses!

n contrast to how divorce cases should be handled (go gray!), other types of cases such as personal injury cases and criminal cases are often handled by the attorneys guiding their clients to go black and white – to take polar opposite positions. In a personal injury case the goal of the plaintiff is to get a money judgment against the defendant, and the goal of the defendant is to not owe the plaintiff any money. Similarly, in a criminal case the goal of the State is to get the defendant convicted, and the goal of the defendant is to be acquitted (not guilty).

How long does it take to get divorced in Hawaii?

From when the divorce decree signed by both spouses is submitted to Family Court for processing, it takes approximately 1 to 2 months until the divorce decree is signed and filed by the Court.

Does an attorney have to be hired in order to get divorced?

No. Just like the rest of the nation, in Hawaii the number of cases with pro se (unrepresented) divorcing couples is growing. This is primarily due to tighter finances and user friendly Courts that provide preprinted forms and guidance. It is recommended that someone going through divorce meet with an attorney at least once if there are children and/or significant assets involved, so that he/she can receive guidance about the law and procedure and come up with a plan of action to achieve the desired outcome in the divorce case.

Can both spouses see the same divorce attorney?

No. Both spouses have potentially adverse interests. For example, if the lower earning spouse asks the higher earning spouse's attorney whether alimony could be ordered in the divorce case, the higher earning spouse’s attorney would be in a conflict position because a truthful answer would be “yes,” which is against the interests of his/her higher earning spouse client.

How does the existence of a premarital/prenuptial agreement affect a divorce case?

The existence of a premarital/prenuptial agreement just means that there are two layers in the divorce case:
  • the first layer is to test the validity of the premarital/prenuptial agreement in Court (assuming one spouse no longer wishes to be bound by the premarital/prenuptial agreement); and,
  • the second layer is to proceed with the divorce case as if there was no premarital/prenuptial agreement (assuming the Court has determined that the premarital/prenuptial agreement is not valid/not binding).

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