One of the defining differences between a divorce and legal separation is that one process is permanent, while the other is somewhat temporary. Divorce is considered to be the permanent legal way to terminate a marriage while separation is temporary, and you are still legally married to each other. Separation allows for space in which to consider what the next options are for the marriage; divorce ultimately has no basis of reconciliation, nor any intention to get back together.
Once a divorce judgment has been finalized, issues associated with shared children and the division of marital property will be addressed. Although these issues are considered during a separation, there is still a considerably large timeframe for determining solutions to these issues.
Some examples of standard differences that are notable in a divorce as opposed to a separation include, but may not be limited to:
- Health Care and Other Benefits: During a legal separation process, the couple may still have the same health care plan that was obtained while married. This may also apply to social security benefits. However, once a divorce has been finalized, these benefits are terminated;
- Marital Status: Legal separation still allows you to claim your marital status, which means that you are not free to marry another person while separated. Once you are legally divorced, you may remarry again;
- Decision Making: Because legally separated spouses are still considered to be next of kin, they can still make the necessary medical or financial decisions for the other spouse. However, a divorced couple are not considered to be next of kin;
- Debts or Liabilities: Spouses can still be held responsible for the debt of the other in a legal separation. After a divorce, the debts are handled during the dissolution process and will be divided however the family court sees fit;
- Property Rights: Legal separation protects each spouse’s legal rights to property benefits upon the death of the other spouse. Divorce terminates these rights; and
- Remarriage Or Reconciliation: Divorce is permanent and cannot be undone. Thus, reconciliation is much easier to attempt with legal separation. After a divorce, you will need to remarry if you want a legal reunification.
Generally speaking, separation is often one of the first steps that a married couple takes when they are contemplating getting a divorce. Separation can act as a temporary holding period in which the couple decides whether they can and should save their marriage. At this stage, a couple is not considered to be legally separated until an agreement is formed and a court issues an order stating as much.
In Hawaii, a legal separation declares that the spouses are separated and will not be acting as a couple, but does not dissolve the marriage. This allows the couple to resume their marriage if they are able to work out their differences during the separation period, without filing for marriage again. A divorce dissolves all connection between the two spouses, except for any custodial and support agreements that were made during the marriage.
Hawaii is a no-fault divorce state, which means that there does not need to be any wrongdoing by either partner in order to qualify for divorce. The couple only needs to cite irreconcilable differences. Additionally, there is also no waiting period or cool-down period in Hawaii before divorce papers can be finalized. Additionally, counseling is not required for divorce in Hawaii.
What Paperwork Do You Need To File For Divorce In Hawaii?
Hawaii provides the necessary forms to file for a divorce through the state’s judiciary website. The form you will need depends on which island you live on, and whether there are shared children involved in the divorce. The forms for a divorce that does not involve shared children are considerably short and easy to fill out.
There are forms available for married couples with children, but as the situation gets more complex and involved, the state of Hawaii recommends that couples retain an attorney to assist with the process. Additionally, the website has forms for an uncontested divorce, with or without children, meaning that neither spouse opposes the divorce.
Regardless of whether the divorce is contested or uncontested, a spouse filing for divorce will be required to complete and file the necessary forms for their island. Afterwards, they must submit a summons for the other spouse to answer the divorce filing. The other spouse must reply to the filing, either as contested or uncontested, and both spouses must submit income/expense and asset/debt statements. Finally, if children are involved, both parties must be prepared to declare requests for custody, and/or support.
Although a spouse may request divorce on their own in Hawaii, the divorce must be finalized with both spouses. The exception to this would be in cases of desertion.
How Is Marital Property Divided In Hawaii?
When a couple is divorcing, their property is divided according to whether their state is a community property state or an equitable distribution state. Community property generally refers to any property or assets that a couple obtains during their marriage and owns together. If the state is a community property state, the couple’s property will generally be split evenly between the parties. The court considers the following to be separate property:
- Any property that belonged to a spouse prior to the marriage;
- Any property that was obtained after a divorce or separation; and/or
- Any property that was given to them as a gift from a third party during the marriage.
However, the court may find that the separate property has been altered enough to become community property. An example of this would be if one spouse was given a house before the marriage, and after getting married decides to put the other spouse’s name on the deed to the house. The house will now be considered community property, because those deliberate choices made by the spouse who was gifted the house shows that they intended it to belong to the community and not to themselves.
Equitable distribution requires the court to consider a number of factors and variables when determining which party should get what item of property. The most important principle about equitable distribution is that it does not mean “to divide equally.” Rather, equitable distribution refers to a division of property that achieves both a fair and comprehensive result for the parties. In other words, the focus of the decision for property division is based on fairness to both parties.
Hawaii is an equitable distribution state, meaning the family court will attempt to divide the marital property fairly. Upon divorce, everything that was acquired by the couple during the marriage is considered to be marital property and is split as fairly as possible. What this means is that if one spouse has acquired more property than the other spouse, they may have some of their property taken away from them and given to the other spouse.
Some examples of property that is kept apart from consideration in divorce, and will not be considered in the split, include but may not be limited to:
- Property acquired prior to the marriage;
- Gifts intended for one spouse only; and
- Inheritance.
What About Divorces Involving Children Or Alimony?
Hawaii’s family court will determine custody of the children, as well as how much child support will be paid. Courts generally adhere to the child’s best interest standard when determining which parent will have custody rights. In Hawaii, the court will give deference to an agreement between both parents regarding who should have custody, assuming that the court finds it is in the best interest of the child.
Hawaii’s divorce proceedings provide for alimony; however, it is not required in all cases involving divorce. Alimony payments are customized by the court to fit the situation presented, both in terms of amount and how long they will last. Some payments will only last as long as the divorce proceedings.
Do I Need An Attorney For Divorce In Hawaii?
If you live in Hawaii and are contemplating divorce, you should speak with an experienced and local Hawaii divorce lawyer. An attorney will be best suited to helping you understand Hawaii’s laws and procedures regarding divorce. An experienced divorce attorney will also be able to represent you in court, as needed.
