Hawaii Uncontested Divorce

This information is an overview of the uncontested Hawaii divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Hawaii.

To file for a divorce in Hawaii, the filing spouse must have been physically present ("domiciled") on the island for a least three continuous months, and the responding spouse must have been physically present for at least six continuous months. The divorce should be filed 1) in the judicial district where the Plaintiff resides or 2) the judicial district where the spouses last lived together.

Grounds for divorce are: No-Fault, 1) an irretrievable breakdown of the marriage and 2) living separate and apart for two years and it would "not be harsh or oppressive to the defendant spouse to grant the divorce."

Actions are filed in the Family Court of one of four judicial circuits. They are First Circuit, O誕hu; Second Circuit, Mau段, Lana段 and Moloka段; third Circuit, Hawai段 (Hio and Kona Divisions), and Fifth Circuit, Kuai段.

Divorcing spouses should select forms for the appropriate circuit and island.

Legal separations are granted to a person who is a resident of the state for three months. A temporary legal separation is possible for up to two years on the grounds that the marriage is temporarily disrupted.

Hawaii provides a simplified route to divorce. The irretrievable breakdown of a marriage may be shown when one spouse states it in an affidavit or by one spouse stating it in an affidavit and the other not denying it. In such cases, the court may waive a hearing and grant the divorce based on the affidavit. In Hawaii, most uncontested divorces proceed by way of affidavit, which means that neither spouse has to appear at a hearing.

The following are the steps required to file for a divorce in First Circuit, which is the island of O誕hu. The procedures and forms in the other circuits are very similar. To file for an uncontested divorce in a marriage with no children, the plaintiff must file

> A Complaint for Divorce, which identifies the parties and their children, states the grounds, asks for a "just and equitable" distribution of assets and liabilities, requests terms and conditions of visitation;

> A Summons to Answer Complaint, which gives the Defendant 20 days from the date of receipt to file an Answer or face a default against him or her;

> A Matrimonial Action Information (MAI) Form, which provides vital information about the spouses and the children.

If the Defendant spouse agrees, he or she can sign an Appearance and Waiver, which states that he or she has received a file-stamped copy of the Complaint and Summons. By signing the Appearance and Waiver and the Divorce Decree, which stipulates the terms and conditions of the divorce, the divorce then moves along a simplified route. However, the Appearance and Waiver may not be signed before the Complaint is file-marked.

If the Defendant does not agree, he or she must receive service of process. If the Defendant resides in Hawaii, the Complaint and Summons must be personally served on the Defendant. This may be done by sheriff or an adult over 18 except the Plaintiff. This person then completes a Proof of Service form and returns it to the Defendent. If the Defendent resides elsewhere than the island where the action is filed, he or she may be served by registered or certified mail. This requires the Plaintiff to file a Motion and Affidavit for Service by Mail, Order for Service by Mail. The Receipt for Certified Mail and Domestic Return Receipt or the Receipt for Registered Mail and Return Receipt must be attached to a Statement of Mailing, which certifies that the Complaint and Summons were mailed.

When the Defendant signs the Appearance and Waiver, no Proof of Service or Statement of Mailing is required. The Appearance and Waiver also certifies that the Defendant is not in the military, or Defendent and that he or she agrees to waive any protections he or she might enjoy from the Servicemembers Civil Relief Act.

If the Defendant does not answer in the 20 days, the Plaintiff may file an Affidavit of Plaintiff (for an Uncontested Divorce), which asks the court to grant the divorce by default.

In addition, when the divorce moves by default, the Plaintiff must file the following:

> An Income and Expense Statement of Plaintiff, which details his or her income and expenses;

> An Asset and Liability Statement, which profiles his or her assets and liabilities.

> Divorce Decree (with Children).

If they are available, the Defendant must also file his or her Income and Expense Statement of Defendant and Asset and Liability Statement of Defendant. In the case of a default divorce, the Defendant痴 Income and Expense Statement and Asset and Liability Statement may be absent.

When all the necessary forms have been filed, the case can be placed on the court calendar. At that time, the Plaintiff must file a Decree of Divorce, which later is signed by the judge.

Certain additional forms must be filed for an uncontested divorce with children. In this situation, the Plaintiff must file a Notice to Add Kids First II, which is mandatory in divorces involving children. The husband, wife and children between the ages of six and seventeen must attend this class.

In addition, depending on a couple痴 situation, the following forms may have to be completed:

> Child Support Guidelines Worksheet, based on each spouse痴 gross income (before taxes and deductions);

> A Supplemental Affidavit Re: Direct Payment Child Support, which is used when one spouse pays child support to the other directly and without the Child Support Enforcement Agency;

> The Order for Income Withholding, which directs that child support be taken directly from the noncustodial parent痴 income.

When the Plaintiff has completed all the necessary documents, the action can be placed on a court calendar for the judge痴 review.

Uncontested divorces with or without children generally move along predictable path. A contested divorce -- whether the Defendant spouse files an Answer or makes a Counterclaim -- generally move in ways that are unique and more difficult to predict.