A Practical Guide to Divorce in Hawaii 9780824886318

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A Practical Guide to Divorce in Hawaii PETER J . H E R M A N

uV A Kolowalu Book University of Hawaii Press Honolulu

© 1986 Peter J. Herman All Rights Reserved Manufactured in the United States of America

Library of Congress Cataloging-in-Publication Data Herman, Peter J., 1947A practical guide to divorce in Hawaii. (A Kolowalu book) Includes index. 1. Divorce—Law and legislation—Hawaii—Popular works. 2. Divorce suits—Hawaii—Popular works. I. Title. KFH100.Z9H47 1986 346.96901*66 85-20125 ISBN 0-8248-1016-3 349.6906166

To my parents, Murray and Mariette, and to my brother, Edward, with thanks for their always generous support and encouragement over the years.

Contents Acknowledgments

vii

1. Introduction

1

2. Questions Before You File for Divorce Do You Really Want a Divorce? Will You Need an Attorney? What Is a No-Fault Divorce? How Long Does It Take to Get a Divorce?

6 6 7 9 9

3. Filing the Divorce Complaint Who Can File for Divorce? Serving the Complaint Your Spouse Answers the Complaint

12 12 16 17

4. Financial Statements and Negotiations Asset and Debt Statement Income and Expense Statement The Negotiation Process Mediation

19 20 26 28 29

5. Child Custody and Visitation Legal Custody Physical Custody Resolving Disputes Over Physical or Legal Custody Custody Awards to Third Parties Contesting Custody

31 31 36 38 47 47

6. Child Support Temporary Child Support Permanent Child Support Tax Impact of Child Support

49 50 56 63

7. Alimony Temporary Alimony Post-Divorce Alimony Tax Impact of Alimony

66 66 70 77

vi

Contents

8. Division of Property Hawaii's Equitable Division Law Factors Considered and General Rules Followed by the Court in Property Division Things to Keep in Mind in Property Division Debts Tax Impact of Property Division Joint or Separate Tax Returns? The Effect of Bankruptcy

80 81 82 92 99 100 101 101

9. Special Problems of the Military Where Should You File Your Divorce Complaint? Service of Process Problems Military Retirement Benefits Payment of Military Retirement Benefits Survivor Benefit Plans Other Military Benefits

103 103 104 105 106 107 107

10. Going to Court: Uncontested Cases, Trials, and Appeals Who Goes to Court and When? Going to Trial The Courtroom Experience Appeals after Trial

109 109 109 111 112

11. Modification and Enforcement of Court Orders Modification of Decrees Enforcement Interstate Problems

114 114 116 116

12. Pre- and Postmarital Agreements and Palimony Premarital Agreements Postmarital Agreements Palimony

119 119 119 120

13. Estate Planning (Wills and Trusts) Before Your Divorce After Your Divorce

123 123 125

Index

127

Acknowledgments

a book about family law—or any subject—requires a great deal of moral and technical support and encouragement. My law firm, Damon, Key, Char & Bocken, offered encouragement from the day I floated the idea. Special thanks for assistance in editing go to Frank Damon, Clinton K. L. Ching, Anne F. Lee, and Paul A. Tomar. Frank was especially enthusiastic in his commentary and set up the initial meeting with attorney Dave Larsen which led me to my publisher. Clinton has had enormous patience in teaching and guiding me in my family law career. Anne's friendship and support, sense of humor, and perceptive insights very much contributed to this book. Paul shared his experience and insights, as an attorney who specializes in family law, in reviewing the final draft. I am grateful to Iris Wiley, Executive Editor of University of Hawaii Press, who provided encouragement from the time of our first meeting. The editorial staff of the Press very professionally led me through the editing process. Thanks also to law professor Amy Kastely and attorney Tom Rice for their review of the first draft. Sara Ouchi and June Ohara deserve thanks for typing and retyping and retyping . . . My interaction with the Family Court judges and clerks, my clients, and my colleagues in negotiations or heated battle have all contributed to my experiences, which are reflected in the following pages. However, all the opinions stated in this book are my own. WRITING

1 Introduction IT is hardly a revelation to most of us that divorce is becoming more common. There were 1,865 divorces in Hawaii in 1968; in the 1980s the figures have averaged near the mid-4,000s. If you get married today, your chances are one out of two that you will get a divorce. Yet despite the prevalence of divorce, most people know little about how the divorce process works. Of course, we all know someone who has been divorced and probably have heard "war stories" from friends or relatives about their divorces. Unfortunately, to depend on this kind of knowledge in preparing yourself for a divorce is like letting the blind lead the blind. Even if understood completely, the information you may gain from a divorced friend most probably cannot be applied to your situation. This book is written for you, the nonlawyer, if you are thinking about a divorce, going through one, or having post-divorce problems. It is designed to clarify the proceedings, rights, and responsibilities involved in a divorce. The ordinary person's confusion about these matters is evidenced by the fact that almost all of my clients ask me the same questions at some point during the divorce process: 1. Will I pay alimony or receive it? If so, how much and for how long? 2. How do I get custody of my children, or will I lose them? 3. How is child support calculated? How long will I pay or receive it? 4. How is our (or my) property divided? 5. How long will it take me to get a divorce? 6. How much will it cost me? There are also questions that arise after the divorce, such as: 1. If I live with someone after my divorce but do not remarry, do I risk having to pay "palimony" or to share my property with that person?

2

Introduction

2. If I remarry, will a prenuptial agreement protect me? 3. If my spouse (or I) remarry, what happens to the alimony or child support payments? The answers to these questions depend on a number of complex legal considerations and differ from case to case. Each divorce is unique and requires special consideration. To make matters even more confusing, the answers will vary from state to state. The law of divorce under our federal system is generally left to each state to address. The law is different in Hawaii in a number of ways, as are the procedures followed by Hawaii's Family Court. This book therefore addresses itself to divorce laws and procedures in the state of Hawaii, taking into account the special problems of military personnel. Whether your divorce goes to trial or is settled without going to trial (almost 95% of all divorce cases are settled without a trial), you need to have some understanding of what the outcome is likely to be. Do you know your rights as well as the duties imposed upon you by law? Here are a few examples. Alimony: Did you know that in the state of Hawaii, unlike other states, there are no specific time limits for how long alimony may last? Did you know further that Hawaii does not recognize marital misconduct as relevant in the granting of alimony? Over a dozen factors are applied to each case to determine whether alimony is appropriate. Each case depends on its own facts. You might, for example, be able to receive alimony even though you have a steady job. The court might determine that financial help is justified in the transition from married to single life for one spouse if the other earns significantly more or if one spouse is just starting in the job market at the entry level. Child custody and visitation: The law appears to be very simplecustody awards are based on what is in the "best interests of the child" —but did you know that there are, in fact, dozens of variations in custody arrangements? Your awareness of the range of possibilities and the pros and cons of each can prevent future problems by anticipating sensitive areas and by clarifying them in your divorce agreement. Property: Did you know that if part of the down payment on your marital residence came from a gift or inheritance you received during the marriage or from your own premarital funds, you might be able to get these funds back before the remaining equity in the house is divided between you and your spouse? Hawaii's law is more flexible than that of other states, providing a basis to argue a number of reason-

Introduction

3

able positions about how to divide your property. In determining whether to go to trial or negotiate a settlement, you should know the range of options and be able to assess the risks if you go to trial. Retirement interests: Did you know that you have a right to a portion of your spouse's pension and profit sharing or stock ownership plan interests? Hawaii, unlike many states, divides pensions and other retirement interests whether or not they have vested or matured. Even if you know this, you may not know that under a new federal law you might be able to receive your share of your spouse's pension starting on the date your spouse can elect early retirement whether or not he or she actually retires on that date. You might also receive your share of the vested pension when your spouse leaves current employment. You might even be able to obtain an agreement whereby your spouse (the pensioner) is awarded the entire pension while you are awarded a larger share of the marital residence. Property fully and fairly divided at the time of divorce eliminates the problem of trying to obtain your share decades later. Military retirement benefits: Did you know that if you are in the military and have accrued these benefits and file for a divorce, Hawaii will divide your benefits and award a portion to your spouse even if your state of permanent residence is not in Hawaii? However, if your nonmilitary spouse files here and your own permanent residence is not in Hawaii, Hawaii may not divide your retirement under certain conditions. Taxes: Do you know the full tax consequences of divorce? Did you know, for example, that under the new 1984 tax law, your child's primary caretaker will be able to claim the tax exemption for your child regardless of how much child support each parent contributes? You may, however, agree with your spouse to give the exemption to the parent in the higher tax bracket, who is often the parent making the monthly child support payments. There are complex new tax rules concerning alimony as well. Another instructive example is the taxation on property division. Would you think you made a fair deal if you get the house and your spouse gets the shares of stock worth equal fair market value? Sounds good, but there may actually be some inequity in the arrangement. Suppose, for example, the fair market value of the shares and the house is $140,000 each. If, however, the cost basis of the home is $100,000 and that of the stock $130,000, the tax you pay on the sale of the home will be much higher than the tax your spouse

4

Introduction

will pay on the sale of the stock. Tax is a very crucial issue—proper advice can save you a great deal of money and improper advice can prove costly. I could go on and on, but I'm sure you get the point. Divorce is a complex process with potentially serious long-term implications. It is only reasonable that anyone contemplating or currently involved in a divorce would want to be properly informed. This book is a guide to information that can help you in a number of ways: it will give you a broad understanding of the law and local practice; it will answer many of your questions, such as those stated earlier; and it will help you to protect your own interests. What this book is not is a handy reference for a do-it-yourself divorce. It is not designed to help you draw up your own divorce agreement or save on a second attorney's fees by letting your spouse retain an attorney to draft your agreement while you represent yourself. To rely on this or any other book on divorce as the sole means of obtaining an agreement by either of these two methods is to court disaster. You might say, "But we have no property, no children, and were married only a year. Since communication between us is still pretty good, can't we just read your book and do the divorce by ourselves?" The answer is probably yes, but my review of do-it-yourself divorce agreements has revealed that in even the simplest of situations at least one important item has not been properly addressed. In doing your own divorce agreement, you and your spouse might, for example, neglect the issue of who will pay the joint debts, or you might fail to consider what will happen if the spouse who agrees to pay them defaults. It is amazing how often people fail to think of these and even more serious things at the time of divorce. It is not at all amazing to an experienced family lawyer. You may now think that since an attorney is the author of this book, he's going to recommend that you have an attorney represent you. You're right. This book will make you familiar with the many rules and general guidelines involved in reaching a divorce agreement, but it cannot give you the background to apply them to your particular case. Even after reading this book carefully, you will not have the knowledge of the latest laws, cases, and procedures followed by the Family Court. And you will not have the experience of having negotiated many divorce agreements. The bottom line is that even if you are knowledgeable, even if your

Introduction

5

marriage lasted only a few years, and even if you think you and your spouse have reached complete agreement, it is still prudent for you to have your own attorney spend a few hours reviewing the agreement. You can be advised if there are any problems with the agreement and whether it is drafted with the appropriate legal language that will produce the results you and your spouse intend to achieve. For most of us, however, things are not so simple. In the majority of cases, consultation with an attorney before beginning negotiations is advisable. The fact is that regardless of the circumstances of the divorce, the combination of an informed client and an experienced family law attorney will probably save money, prevent future problems, and considerably lessen anxiety. Although you and your attorney can together address many of your legal and financial problems, there remains the issue of how you will get through what is likely to be one of the most stressful periods of your life. Family law attorneys are only too aware of the emotional aspect of divorce. They are not, however, mental health professionals or counselors. You should give serious consideration to using counseling services before or early on in the divorce process. Perhaps you will discover that divorce is not your only option, or if it is, some form of professional counseling can help you cope with what lies ahead. The nicest compliment I ever received, apart from the fruit basket given me by a grateful parent after a child custody "case, was when a client told me a few years after his divorce, "You really helped me through a tough time, and I came out of it okay." If this book helps you get through a difficult time a little more comfortably and economically, it will have accomplished its goal.

2 Questions Before You Hie for Divorce Do You Really Want a Divorce? for divorce is a major decision in anyone's life, even if it is not for the first time. The breakup of a marriage is considered one of the most stressful events anyone can experience. By the time you file, the period of most intense emotional stress may have already occurred, as you made the decision to end your marriage. The act of filing, indeed, may be anti-climactic. But in most cases, the divorce process, after filing, is still a period of great tension. Many people will find it helpful to seek professional counseling with a psychologist, psychiatrist, or other mental health specialist. Clergy, family, and friends can also give valuable support. Your attorney should be able to provide you with a list of counseling services and other resources in your community. In fact, I often encourage my clients to find an appropriate person to talk to during this difficult period. When I first meet with clients, I ask them if they are sure they want a divorce, if they have tried to reconcile, if they want to try one more time. It is, in my view, the attorney's obligation to establish whether a possibility of reconciliation still exists. If it does, I suggest professional counseling. If, on the other hand, the clients maintain their desire to proceed with the divorce, I begin to move the case forward as soon as possible. If you are not absolutely sure you want a divorce, you probably should not file. Once it is done, a lot of people—sheriffs, lawyers, judges, and others—become involved in your marital problems. Friends, family, and fellow employees will probably hear about it. Your spouse may react very negatively to your action and may use it to blame you for the divorce or to try to turn your child against you. Alternatively, it is just possible that filing will so jar your spouse as to FILING

Questions Before You File

7

cause reconciliation—but that appears to be the exception, not the rule. In most cases, the spouse who files clearly wants and will obtain a divorce.

Will You Need an Attorney? If after reading this far you still think you can proceed with a divorce unassisted, I urge you to think again. Think of the last time you welded your own car radiator, filled your own tooth, or drafted your own will. You usually hire an expert who has the training and experience to perform such tasks. Divorce is no different. Remember also that, unlike a rusty radiator or a cavity, divorce is one of the most emotionally trying experiences you will ever undergo. No matter what you believe, you are not likely to be thinking as clearly about your future under these stressful circumstances as you ordinarily would. I have already outlined in the preceding chapter some of the reasons for having your own attorney, but let me cite two more examples of what can happen if you choose to go through a divorce on your own. One case involves a couple who, because of their education and intelligence, thought they did not need an attorney. The agreement that they drew up never addressed the issue of the wife's interest in the husband's retirement benefits. They continued, furthermore, to hold their home in both their names after the divorce. The husband lived in the home while the wife rented an apartment. By continuing to live in the home the husband reaped the tax benefits, while the wife, because she rented, qualified for no such benefits. Or how about the unrepresented husband who agreed to pay his wife, who was represented by counsel, a percentage of any increases in his income to be used for child support regardless of his child's financial needs? If he had had his own attorney he probably never would have signed such an open-ended agreement. Can one attorney represent both of you? No, this would be unethical. However, one attorney can handle an uncontested divorce if full disclosure is made to the unrepresented spouse that the attorney represents only one spouse and the other spouse waives his or her right to counsel. The unrepresented spouse may be asked by the other spouse's attorney to read and sign a waiver of counsel form. One spouse, often the wage-earning husband, may retain an attorney and tell his wife, "Don't worry, my (or "our") attorney will look out for both our interests." This is untrue, and even dangerous because it may result later in

8

Questions Before You File

a challenge to the divorce. The husband's attorney must look out for the husband's interests, not the wife's. The husband's attorney is an officer of the court, and, though he (or she) recognizes that there are limits to the type of agreement the court will approve, you can be sure that the husband's attorney, even given these limits, will propose an agreement more favorable to him. That's why having your own attorney balances the negotiations. * If one spouse does not have an attorney, the court will scrutinize the proposed agreement more carefully. There is a chance the court will reject the agreement or that the unrepresented spouse will eventually confer with an attorney and then attack the divorce decree after it is approved. To prevent such problems, it is best for each spouse to be represented by counsel from the time the divorce proceedings begin. What does it cost to get a divorce? Attorney's fees can run from several hundred to thousands of dollars, depending on the extent of negotiations and whether you go to trial. Apart from attorney's fees, out-ofpocket costs include filing fees, sheriffs fees, depositions, experts' fees, photocopying, long-distance telephone calls, and so forth. Your attorney can give you a rough estimate of expected total fees and costs at your initial meeting, but this estimate can change dramatically as your divorce moves forward. Be sure to discuss fees and methods of payments with your attorney at the earliest possible time. Do not wait until you get your first bill. Often your attorney will require you to sign a "retainer agreement" before proceedings begin. What if you can't afford an attorney? Some attorneys will accept small retainers—initial deposits against which fees are charged—and then reasonable monthly payments. Or your attorney may recognize that you will receive a substantial amount of property out of the divorce which you can then use to pay your fees. Finally, your attorney can file what is called a "Motion and Order to Show Cause for Temporary Relief' or, simply, an "OSC" to ask the court to order your spouse to advance funds to you for your attorney's fees. You should also contact Hawaii Lawyers Care on Oahu and the Legal Aid Society to see if you qualify for free legal assistance. •For convenience, in the discussions that follow, it is usually assumed that both spouses have attorneys.

Questions Before You File

9

What Is a No-Fault Divorce? Unlike many other states which have various grounds for divorce, all divorces in Hawaii are granted on a "no-fault" basis. This means that the personal conduct of either spouse toward the other or the child, if any, is not relevant to your right to a divorce. Your spouse can abuse you and your child, commit adultery repeatedly, and live "in sin," but may still obtain a divorce, a portion of the marital property, and possibly even alimony. Similarly, "no-fault" also means that if you file the complaint, the personal conduct of your spouse does not serve as a defense to prevent the divorce. This is hard for some people to accept. However, most people feel that the no-fault rule is a positive development because it allows the court to focus on the needs of each spouse and their children rather than on each spouse's "dirty linen." At the final hearing before the court, all you will have to prove to obtain a no-fault divorce is that you have been separated for two years or that your marriage is irretrievably broken. To justify the latter, you can simply testify that "we can't communicate and don't love each other anymore"; or "he's constantly abusing me and he's told me he doesn't want to remain married to me"; or "she's leading a separate life from mine and our values are no longer the same." Rarely, if ever, does the other spouse ask the court to deny granting the divorce. If this should happen, however, the court would probably grant the divorce anyway, although it might first require you (the plaintiff) to participate in conciliation efforts, in the hope of saving the marriage.

How Long Does It Take to Get a Divorce? In very rare cases, your divorce can be granted within a few weeks after filing. This can happen when, at the time of filing, (1) you have reached complete agreement with your spouse on all matters relating to alimony, your child, and your property and debts; (2) both of you cooperate in completing all required court forms; and (3) the court staff assists in allowing you to have an early hearing date—for example, if you need to leave the island permanently or have plans to be remarried immediately. On the other extreme is the situation in which you and your spouse

10

Questions Before You File

negotiate for months over alimony, child custody and support, and property division, but fail to reach agreement. Then you go to trial. This process can take more than a year from date of filing. A case that goes to trial is called a "contested case." However, the great majority—perhaps 95% or more—of all divorces in Hawaii are resolved by negotiated agreement. These are called "uncontested" cases because at the final court hearing only one spouse need appear. The court has two choices: to approve the agreement you and your spouse have reached (which the court almost always does) or, in rare instances, to require your spouse to appear either to confirm his or her agreement or to hear the court make orders contrary to the parties' agreement if it rejects the agreement as being too one-sided or unfair. But the term "uncontested case" is misleading. The two of you may spend months arguing over the terms of an agreement before you resolve your differences. You may, in fact, spend more on attorneys' fees in an "uncontested case" than if you went directly to trial without a lot of negotiations. One rare exception to the above is what is called a "bifurcated" divorce. With the court's permission, which is very reluctantly granted, you can obtain a divorce first and then resolve the remaining issues later. You will have to provide clear justification to obtain approval for this procedure. For example, the husband's prospective wife may be pregnant. In order to legitimize the child, he needs to get divorced now even though he and his current spouse cannot agree on property division. The truly uncontested cases—and there are many—occur where there is complete agreement at the time of filing and little need for negotiation. The required court forms are quickly completed, filed with the court, and a hearing date is set. Whether or not you can have such an uncontested case will be more clear to you after you have read this book. Finally, as a possible alternative to divorce, our statutes provide for a legal separation. A separation means that the court can award temporary alimony, child custody, visitation, and support, but cannot make a final property division or grant a divorce. A legal separation can last a maximum of two years. Separation can act as "one last effort" at reconciliation. However, this procedure appears to be a relic of a bygone age when divorce was uncommon. Now it's easier and less expensive to file for divorce and then call it off if reconciliation occurs. If you do

Questions Before You File

11

not reconcile, then after filing a divorce complaint, you can move for a final division of property and a divorce, which you cannot do if you file a separation complaint. In a separation, after two years you will still have to file a complaint for divorce. Even during the two-year period, either spouse can seek a divorce which, when granted, will automatically terminate the legal separation.

3 filing the Divorce Complaint Who Can File for Divorce? IN order to obtain a divorce in Hawaii, you must be a resident of the state or physically present here for a specific period of time. Only then can you file a complaint for divorce that will be protected from later attack by your spouse. In order for the Hawaii Family Court to use its power to make orders binding on you and your spouse, it must have "jurisdiction" over your marriage, your children and property, and each of you individually. The court obtains such jurisdiction when one or both of you meet the residency (often called domicile) or physical presence requirements. If Hawaii is your permanent home, you are domiciled here. Domicile refers to your place of permanent residence even if you are absent from this place temporarily. In order for you to file a divorce complaint in the Family Court,* (1) either spouse must be domiciled or physically present in this state for six consecutive months, and (2) you —the person filing—must be domiciled or physically present in the Judicial Circuit in which you file (Honolulu, Maui, Kauai, or Hawaii county) for three consecutive months immediately before you begin your divorce proceeding. If you are the person filing the complaint, you are called the plaintiff; your spouse is then the defendant. The filing of the complaint starts the legal divorce process. There is a $30 fil* Hereafter, unless otherwise specified, the word "court" refers to the Hawaii Family Court, the Hawaii Intermediate Court of Appeals, or the Hawaii Supreme Court, whichever is appropriate in the context. Unless otherwise noted, "cases" refer to actual decisions of these courts.

Filing the Divorce Complaint

13

ing fee for the complaint, which is actually filed with the clerk of the court in your county. In the divorce complaint you allege that you meet the above "jurisdictional" requirements, and you indicate (1) whether you should receive alimony, (2) how many children, if any, are dependent on you for support, (3) which of you should have custody and pay child support, (4) whether you are entitled to have your marital property divided and your debts allocated, and (5) that your "marriage is irretrievably broken" or that you have been separated for two years, which are the basic grounds in Hawaii for granting a no-fault divorce. Finally, the complaint requests the Family Court to grant you a divorce and make appropriate temporary and permanent orders relating to custody and support of your children, spousal support, and disposition of your assets and debts. Figure 1 is a copy of the court's complaint form. As you can see, it is fairly simple and straightforward. At the time you file your complaint you will also have to complete and file a "Matrimonial Action Information" form, and, if you have a child or children,* you will also have to complete and file with the complaint an "Exhibit" relating to "Conciliation, Child Care and Child Custody Proceedings." Example 1: John and Louise have lived in Hawaii all their lives. They obviously meet both the domicile and physical presence requirements, although meeting either requirement satisfies the above conditions. Example 2: Ken and Susan came here on vacation last year and liked Hawaii so much that they moved here permanently last month. They must wait five more months before either can file. Example 3: Charles and Jean have lived here all their lives. After a big argument, Jean left their marital residence on Kauai and moved in with her parents in Honolulu. A month after her arrival, she filed a complaint in the Honolulu Family Court. This complaint is subject to attack by Charles because Jean has not been domiciled or physically present on Oahu for at least three months immediately before she filed. Example 4: Stuart is in the air force, stationed at Hickam Air Force Base. He and his wife Joyce came to Hawaii eight months ago and live on the base. Their permanent domicile remains in Georgia where they will 'Hereafter, the word "child" will be used to refer also to "children" if more than one are involved.

STATE

OF

CASE NUMBER

HAWAII

COMPLAINT FOR D I V O R C E

FAMILY COURT FIRST CIRCUIT

FC-D

NO.

PLAINTIFF'S A T T O R N E Y OR PLAINTIFF (Nam«. Address and Phon« No.)

PLAINTIFF VS.

DEFENDANT P l a i n t i f f , in s u p p o r t o f this C o m p l a i n t f o r D i v o r c e , a l l e g e s : I

Either or both parties have been domiciled or have been physically present in the State o f Hawaii f o r a continuous period of at least six months and the Plaintiff has been domiciled or has been physically present in this circuit f o r a continuous period o f at least three months immediately preceding this application f o r divorce.

2. The parties are lawfully married to each other. 3. • •

•

The parties have no children born during this marriage. T h e parties have child(ren) below age 18 child(ren) above 18 but still dependent on the parties f o r educational support.

4. The best interests of the minor child(ren), require that custody be awarded to • plaintiff • defendant • both parties jointly and that the noncustodial parent • should • should not be required to provide support f o r them. 5. The parties possess certain property and Plaintiff is entitled to an award o f •

a portion

• all

•

none

•

none

of the property o f the parties. 6. Plaintiff is entitled t o an order that Defendant pay • a portion • all of the debts or liabilities o f the parties. 7

Plaintiff •

is

•

is not

entitled to an order that Defendant provide support f o r Plaintiff. 8. Plaintiff alleges grounds f o r divorce as follows: (Section 580-41) (A) • (B) • (C) •

Marriage is irretrievably broken. Parties lived separate and apart f o r a period of 2 or m o r e years under a decree o f separation f r o m bed and board. Parties lived separate and apart f o r a period o f 2 or more years under a decree o f separate maintenance.

(D) •

Parties lived separate and apart f o r a continuous period o f 2 or more years preceding the application; it is unlikely cohabitation will resume; and the court is satisfied in this case that it would not be harsh and oppressive to the defendant or contrary to the public's interest to a divorce on this ground. I t is r e q u e s t e d o f t h e c o u r t : 1. That a decree be entered granting a divorce f r o m the bonds o f matrimony, awarding attorney's fees and costs, dividing and distributing the property and allocating the liabilities o f the parties, providing f o r spouse support, and the custody, visitation, support and education o f the child(ren) o f the parties, if any, all as alleged and as may be appropriate and in accordance with the evidence and the law. 2. That other relief be granted as the court deems proper in this case, including temporary relief as requested in connection with this complaint. Th* Plaintiff doesft«re by solemnly and sincerely declare, under penalty of perjury that the statements made herein are true and correct to the best of plaintiff's knowledge, information and belief. tfl

I

PLAINTIFF'S S I G N A T U R E

DISTRIBUTION • OftlG FILE. Q OEF . O PROS FORM NO 07310« 4/84

COMPLAINT FOR D I V O R C E

Fig. 1. Complaint for Divorce

Filing the Divorce Complaint

15

return after his military service ends. Either spouse has met the physical presence requirements to file here.

Now suppose that you want to file for divorce but some time in the past six months you left the state on vacation, or that in the past three months you left the circuit, perhaps to visit a neighbor island. Or what if you attend school or have a temporary job on the mainland or in a foreign country? Would you still be able to meet the residency requirements? Yes, because your "domicile" means your permanent home. If Hawaii is your permanent home, temporary absences during the months before filing will not invalidate your Hawaii domicile and your right to file. Likewise, short interruptions in your physical presence here will probably not invalidate your divorce complaint if you have generally been physically present in the state for the six months before filing and in the circuit for three months before filing. Even if you have lived away from Hawaii for years, the court still may have jurisdiction to grant you a divorce or to make orders that you must obey. The court has to decide whether you are a Hawaii domiciliary. To do so, it will consider several factors that indicate the extent of your connections with Hawaii, such as where you filed state tax returns and voted, where you had a driver's license and bank accounts, whether you had relatives here or owned real property in the state, and whether you had memberships in local social clubs. If the court is satisfied that there are sufficient connections, you are considered a domiciliary and can file here. You can change your domicile by being physically present in a specific place and intending to remain there permanently. Thus, if you have just moved here from Peoria, Illinois, you can change your domicile from Peoria to Hawaii if you intend Hawaii to be your permanent home. In such case, you can file for divorce six months from the day you arrive here. However, the burden is on you to show that your domicile has changed. You would protect yourself from a challenge by your spouse if you registered to vote here, obtained a Hawaii driver's license and car registration, opened a local bank account, and took all other necessary steps to settle here. You should also sever your connections with your former state. If the court agrees with your spouse that you are not domiciled in Hawaii, however, your complaint may be dismissed and you may have to return to your former residence to file for divorce. It is possible, too, that in the meantime your spouse will have

16

Filing the Divorce Complaint

filed a complaint in your former state of residence and served you with it. In that case, you would have to go back to your former state to resolve the divorce case. Example 5: Joan fled from New York to Hawaii with her two young children. She cannot file a complaint here for six months. However, two months after she arrived, her husband Mike filed a divorce complaint in New York and asked that state's court to order the children returned. The Hawaii court has no jurisdiction over the dispute and so Joan and the two children are required to return to the east coast, where she will have to respond to her husband's complaint.

If you live here but your spouse has not been domiciled in Hawaii, you may have serious problems, especially if your child is with your spouse or if your property is located out-of-state. In such cases, the Hawaii court can grant you a divorce, but it may not have "personal jurisdiction" over your spouse to make orders that your spouse will have to obey. Issues relating to alimony or division of property may have to be resolved later in the state where your spouse is domiciled. The disposition of each case depends on its particular circumstances; jurisdictional issues can become very complex if your spouse never lived here or has moved away to another state. In most cases, however, domicile or physical presence for the required minimum period will not pose a problem for those who want to file here for divorce. In fact, the "physical presence" requirement enables those in the military to file for divorce even though they are not domiciled here. (See Chapter 9, "Special Problems of the Military.")

Serving the Complaint After you file your complaint for divorce, it must be "served" on your spouse in order for the court to begin to address the matters raised in your complaint. The purpose of service is to give notice to your spouse and to put him or her under the jurisdiction of the court. The complaint is served with a summons which requires your spouse to file an answer with the court within 20 days of the date of service. If your relationship is still friendly, your spouse can be served through his or her attorney or may simply sign a receipt, called an "Acknowledgment

Filing the Divorce Complaint

17

of Service," presented by you or your attorney. If your relationship is unfriendly, you will probably have to have the sheriff serve the complaint. The sheriff will be instructed where to find your spouse and will serve the complaint by handing him or her the complaint and summons. If your spouse refuses to accept it, the sheriff can simply drop it near his or her person. If your spouse is particularly contentious, service by the sheriff sometimes succeeds in getting his or her attention because it indicates that you're serious about the divorce. Of course it can worsen your relationship, if that's possible, because service by a sheriff can be really annoying or embarrassing. If your spouse is out-of-state or within the state but outside the circuit in which you file, you can either serve by certified mail—the return receipt signed by your spouse completes service—or by an authorized process server where your spouse resides. If you can't find your spouse after diligent efforts, you may be able to serve by placing a notice in the local newspaper, at your expense. At the time your complaint is served, or shortly thereafter, you may also serve a Motion and Order to Show Cause for Temporary Relief (OSC). An OSC may request temporary alimony; child custody, visitation, and support; use of one of your cars; exclusive occupancy of your house; payment of debts; and various restraining orders. Some of these issues are discussed in greater detail in chapters 5 to 8. Typical temporary restraining orders include ones to restrain both spouses from annoying or threatening one another, disturbing their child's custodial or visitation arrangements (including removal from the county), and wasting or disposing of their assets except as necessary to operate their businesses. Any transfers of assets you make after you separate from your spouse or file your complaint may be set aside by the court or considered in the final property division. Unless there is violence between the two of you, it is difficult to have one of you removed from the marital residence because of the severe financial strain that often results. Your Spouse Answers the Complaint Once served, your spouse must file an answer to the complaint within 20 days of the date of service. The answer includes your spouse's response to your statements about whether alimony should be awarded, how property should be divided and debts allocated, who should have custody of your child, who should pay child support, and

18

Filing the Divorce Complaint

whether your marriage is irretrievably broken. Even if your spouse denies the latter, you will still be able to obtain a divorce. If your spouse fails to file an answer, you can request the court to approve a decree of divorce as soon as a hearing can be scheduled. In such a case, your spouse need not be present for the court to grant you a divorce and the other relief you requested in your complaint.

4 financial Statements and Negotiations AT or near the time of filing your divorce complaint, you need to get ready to negotiate what is commonly called a property settlement agreement, * although it also includes matters relating to alimony and child custody, support, and visitation. Of course, you may want to state your position and not budge, but this would be most unusual and unrealistic. Since numerous issues have to be resolved in most divorces, there usually is give and take in most negotiations. When you first file, you may not even know your rights as to child custody, visitation, and support, or alimony and property division, or even the value of the property you own. Only when all the facts are clear to both spouses should you begin to negotiate. To determine what property you own and whether alimony and child support are justified, the court requires you to file "Income and Expense" and "Asset and Debt" statements. The court forms are shown here as figures 2 and 3, both completed in sample form. Your attorney may ask you to complete them before you first meet in order that he or she can review them and pinpoint the most important areas for discussion. These forms are very important. So let us review them section by section to help you complete them properly.

* Sometimes a divorce decree will contain all the provisions of your agreement relating to alimony, child support, and property division; alternatively, you may first sign a separate settlement agreement called an "Agreement Incident to and in Contemplation of Divorce." The latter is then referred to and incorporated in a one-page divorce decree. In either case, the court approves the decree, which is the legal document that is proof of your divorce.

20

Financial Statements and Negotiations

Asset and Debt Statement 1. Cash on Hand. This does not include amounts held in savings or checking accounts. It does include cash you are holding or that you have socked away somewhere. If you hand over $500 to your friend and say, "Don't tell anyone about this because I don't want my spouse to know, but give it to me when I need it," you still must list it—but under item 10 (property held in trust for you). Remember, you are required to sign this statement under penalty of perjury; an intentional lie might affect how the court acts upon your case, and could even cause you to be convicted of a crime. If you are aware of how much cash your spouse has on hand, list it too. The same is true of all the assets and debts discussed below. List your spouse's if you know them. 2. and 3. Credit Union and Bank and Savings Accounts (including Trustee Accounts). You should know the information requested about your own accounts. If held jointly by yourself and your spouse, put "J" in the title column. Even if you don't know much about your spouse's or your joint accounts, at least list the name of the institution holding each account because this will bring the account to your attorney's attention. To ascertain the balance in your own or a joint account, just call the financial institution and ask for the current balance. Also list trust accounts. In other words, if you are trustee for an account in your child's name and can remove the funds at will, list it here. If, however, the funds are held irrevocably by you, such as, for example, for the benefit of your child in a Hawaii Uniform Transfers to Minors Act (UTMA) account, then list it under 10. 4. Securities. These include shares of stock, bonds, money market funds, and so forth. Again, you may not know the date of acquisition, number of shares, cost, market value, and debt owed against the securities, but if at least you know of their existence, list them by name of company. It is important to note the existence of securities, even if you do not have much information on them. 5. Vehicles. Before you fill in the current market value for your car, which may be just a guess on your part, consult a "blue book," available at most car dealers, or check the ads in the local newspapers to estimate its current market value. Do not simply guess at a value because a wild guess could hurt you later. Your estimation is admissible evidence

(Mame o f

Attorney

3n

and

07-31-14.2

Address)

the l i a m t l y

(Court o f tiff Jfftrat

(Eirruit

Statr of Karnali FC-D

Mn

1776

ASSET AND DEBT STATEMENT OF GEORGE WASHINGTON 1. CASH (on hand or held by others for me)

f

50.00

2. CREDIT UNION ACCOUNTS: TuIelH.WJI

Name

S t a t e o f Hawaii Enplqyees C r e d i t Union

$2,500

H

3. BANK AND SAVINGS ACCOUNTS: Company A Branch

Debt Balance

Credit Balance

(Include Trustee Accounts)

Type of Account

Title(H.WJ)

Current Balance

Bank o f Hawaii

Checking

H

$2,000

Bank o f Hawaii

Checking

J

500

F i r s t Hawaiian Bank

Savings

W

4. SECURITIES:

(Stocks, Bonds, Mutual Funds, Certificates of Deposit, etc.)

Company

Tille (H.W.J)

C a s t l e & Cooke

5. VEHICLES: Year

2,500

J

Pale of Acqumtion

1/78

Co«

750

Market Value

Debt Owed Against

2,000

-

(Autos, Trucks, Motorcycles, Trailers, Campers, Boats, etc.) Make

Tille(H.tt.J)

Curreni Market Value

Debt Owed Again»

1978

Chrysler

J

?

1.000

1982

Toyota

J

?

4,000

Fig. 2. Asset and Debt Statement

Fig. 2. (continued) 01-11-19.] (R-1.16) PIK 2 FC-D

No 177ft

K.m» George Washington 6. REAL PROPERTY: Addito FW or Une 1887 Constitution Ave. Lease Hilo (imlnpirnwll Bee

Tuk (H.WJ) J

Duc of Acquililion

Coal

1976

$150,000

1982

8.000

$107,000

7. LIFE INSURANCE: Company

Niton Inaumd

Prudential

8.

Face Amount

H

aentfigiary

100,000

Titk (H.WJ)

W

Debt Owed Again«

Ciih Value

H

3,500

-

RETIREMENT) PENSION; PROFIT SHARING ACCOUNTS: Employe of Company

Type of PUn

Ycan in Plan

Tout Pracnl Veiled Value

Castle t. Cooke

Retirement

20

$125,000

Castle & COoke

Profitsharing

15

80,000

Benefit* Payable When Age 55 Same

9. ALL OTHER MAJOR ASSETS: (Furniture, Household Effects, Art, Stamps, Coins, Tools, Equipment, Jewelry, Accounts Receivable, Investment Assets, Business Assets, Cemetery Plots or Niches, Tax Refunds Due, etc.) General Dqcription

Thk (H.WJ)

Eatimated Groii Value

Debt Owed Again»!

Household furniture

J

$10,000

Sailboat (20') (leather goods) Mail order business

J

12,000

_

J

7

-

Joint Tax Return refund

J

800

Fig. 2. (continued) 07-31-15.3 (R-l. « ) P»ge 3

10.

FC-D

N»

Name

Genrgg»

PROPERTY HELD IN TRUST FOR OR BY THIRD PERSON/S: Accounts Noted in paragraph 3) PftcTiplKin

Trustee t

Bank account

J

11. ALL OUTSTANDING DEBTS: Creditor

Beneficiaries

Debtor (H.W.J or Other)

Waghingt-nn

(Aside from Bank & Savings Vthw

Children

1776

Debt Owed Againit

$8,000

(Include those listed above) Security

Mo., Yr. Debt Incurred

Total Bilance Owed

Minimum Monthly Payment

American Savings

J

House

1/76

107,000

750.00

Credit Union

J

Car

4/82

4,000

175.00

Husband's neither

H

1/85

5,000

_

VISA

H

Ongoing

2,000

_

100 min.

I hereby declare, under penalty of perjury, that I have examined the foregoing statement and to the best of my knowledge and belief it is true, correct and complete.

(Signature)

Date:

24

Financial Statements and Negotiations

of the vehicle's value. Put a question mark under fair market value if you are unsure of the car's current worth. 6. Real Property. You should indicate whether the property is your marital residence, commercial or investment property, or unimproved. Don't guess at the current gross value unless you have a recent appraisal or you are selling the property and have recently received offers. Do not use the values on your property tax assessment notices since they are generally lower than fair market value. Total debt owed can be obtained from your lending institution. It will be helpful if you bring your attorney copies of deeds, agreements of sale, mortgages, promissory notes, and other related documents. 7. Life Insurance. If you have life insurance, it may have a cash value that can be divided by the court. Therefore, this is an important asset and should be described as accurately as possible. 8. Retirement and Related Benefits. Next to your marital residence, this is probably the most valuable asset to be divided, although you may not realize that this is so until you have read this book. You may not even know the type of plan either of you has, its present vested value, or when benefits will be payable. In any case, just fill in what you know. Ask your office manager or employee benefits department for information about your plan. They should be able to provide you with a statement of your current interest and a description of how your plan works. 9. All Other Major Assets. Do not indicate approximate values of these assets unless you have some reasonable basis for doing so. But list as many of them as you know. Don't list every piece of furniture or household effect, but group them under appropriate headings. You may have to provide detailed lists later in order to negotiate division. Be sure to include any sole proprietorships, partnerships, or corporations in which you have interests and any accounts receivable. 10. Property Held in Trust. This is where you list your child's UTMA accounts or other trust accounts you or your spouse hold for others. Also list trusts held for your benefit. Do not include inheritances you might receive, but only actual trusts already created for you or your spouse's present or future benefit. 11. All Outstanding Debts. This includes your mortgage, agreement of sale, and leasehold payments, credit card payments, promissory notes, and personal loans from friends, parents, and business associ-

Financial Statements and Negotiations

25

ates as long as you can provide proof—even oral testimony—of their existence.

Income and Expense Statement If neither you nor your spouse is seeking alimony or child support, this statement may not be very important. But sometimes—for example, after you have completed the form—it becomes very clear that you need alimony. The statement is often very difficult to complete because most people do not keep a daily record of their expenses. 1. Regular Income. If you receive a regular paycheck, this is fairly easy to complete. But what if your paycheck varies? It's best then to average what you have received over a few months. Do not predict future income. This statement is supposed to reflect your current monthly income as of the time you sign it. If you are paid every week or every two weeks rather than monthly or bi-monthly, be careful how you calculate the item "Net take home earnings on a monthly basis" Example 1: Your net pay (after withholding) every two weeks is $750. Your net monthly take home is not $1,500 because you will receive 26 paychecks a year, not 24, for the 12 months you work. The extra $1,500 (2 paychecks x $750) should be divided by 12, and $125 should be added to your net monthly earnings. Thus your total average net monthly income should be $1,625. Example 2: Note that your other income should also be averaged on a monthly basis. If you receive four $60 dividend checks a year, or $240, insert $20 ($240 divided by 12) for the monthly "other income." If either spouse's withholding is too high, and net income is thus too low, this fact may be pointed out when negotiations commence. You should have your attorney review the amounts withheld from your own and your spouse's current paychecks to assure their accuracy. 2. Regular Monthly Expenses. a. Rent or mortgage. If you live rent-free with your parents or friends, leave the space blank. If you do list rent, you may be asked to prove you are paying it. Remember that your spouse may question every amount you list. Include condominium maintenance fees, property taxes, and leasehold fees.

07-3I-I4.2 (R-ino

(Name of Attorney and Address) 3tt tlfr J f a m t t g (Court a f

tyr

iiret

(Eirnitt

•til» of Bumti FC-D

No

1776

INCOME AND EXPENSE STATEMENT OF GEORGE WASHINGTON M Y R E G U L A R INCOME: A.

Grots w a g « a n d commissions tach pay period Weekly: ; Ev«ry 2weeks; X ; T w i c e » m o n t h : ; Monthly. Payroll deductions each pay period: Fad.Tan $ 1 7 5 . 0 0 . S t . ; . T » » S 80.00 ; FICAt 7 0 . 0 0

Union dues HftaH-h

inanraneg

premium

Retirement

B.

S

.

S

325.00

S

10.00

»

20.00

S

45.00

1/000.00

~

fPP.'P.P

Nat take home earning«each pay period Net u k e home earning« o n a monthly basil

* , ' "" $ 1,300.00

Other income («4 net buiineit inoome, net rental«, dividend«, etc.) averaged out o n a monthly batit

*

200.00

M V R E G U L A R M O N T H L Y EXPENSES: General expenies. * 1. Rent or Mortgage or agreement of tale, including monthly prorata 750.00 12b.UU

S

B.

3. Car operation, maintenance, repair, and injur.nee

$ $$ $

S. Installment contracts and required monthly payment on: auto(s) S 1 7 5 . 0 0 ; household item» S personal loans S 2 5 . 0 0 6. Support obligations under any prior oourt order 7. Payments to other dependents • ( m o t h e r ) TOTAL

$ $

100.00 25.00

200.00 -

s

1ÖÖ.0Ö 1.300.00 For myself only

Other expenses: 1. F o o d

S

2. 3. 4. 5. 6. 7. 8. 9.

S_ $_ $_ S_ $_

Clothing Medical and dental Laundry and cleaning Recreation School Payments to others l o r child care Income taxes o n alimony Others (Itemiiel It) Chapter XIII bankruptcy-payments