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Hawaii Divorce Laws

Hawaii Divorce Laws

CHAPTER 580

ANNULMENT, DIVORCE, AND SEPARATION

 

Part I. General Provisions

Section

580-1 Jurisdiction; hearing

580-2 Commencement of action; summons

580-3 Service

580-3.5 Personal judgment against absent defendant

580-4 Cross-complaint

580-5 Proof

580-6 Guardian ad litem for incompetent defendant

580-7 Examination of parties to prevent collusion

580-8 Procedure when collusion suspected

580-9 Temporary support, etc.

580-10 Restraining orders; appointment of master

580-11 Care, custody, education, and maintenance of children

pendente lite

580-12 Sequestration of property

580-13 Security and enforcement of maintenance and alimony

580-14 Renumbered

580-15 County attorneys to represent court

580-16 Divorce decree, support order; social security number

 

Part II. Annulment

580-21 Grounds for annulment

580-22 Nonage

580-23 Former husband or wife living

580-24 Allowance for spouse and family

580-25 Inheritance by children

580-26 Lack of mental capacity

580-27 Legitimacy in case of annulment

580-28 Physical incapacity

580-29 No annulment solely on confessions

 

Part III. Divorce

580-41 Divorce

580-41.5 Battered spouses; exemption from mediation in divorce

proceedings

580-42 Irretrievable breakdown

580-42.5 Recrimination no defense

580-43 Repealed

580-44 Persons affected with Hansen's disease represented by

attorney general

580-45 Decree

580-46 Final judgment; nunc pro tunc entry; validation of

certain marriages

580-47 Support orders; division of property

580-47.5 Notice to parties with children

580-48 Repealed

580-49 Support of insane spouse after divorce

580-50 Repealed

580-51 Modification of alimony on remarriage

580-52 Marriage after divorce

580-53 to 55 Repealed

580-56 Property rights following dissolution of marriage

 

Part IV. Separation

580-71 Grounds for separation

580-71.5 Separation no bar to divorce

580-72 Married persons may bring action in own name

580-73 Repealed

580-74 Support of spouse and children

580-75 Status of spouse during separation

580-76 Revocation or modification of separation decrees

 

Cross References

 

Marriage and family therapists, see chapter 451J.

 

Case Notes

 

"Allowance" as used in chapter is synonym for spousal or family support. 73 H. 566, 836 P.2d 1081.

 

709-903 Persistent nonsupport. (1) A person commits the offense of persistent nonsupport if the person knowingly and persistently fails to provide support which the person can provide and which the person knows the person is legally obliged to provide to a spouse, child, or other dependent.

(2) "Support" includes but is not limited to food, shelter, clothing, education, and other necessary care as determined by law.

(3) Persistent nonsupport is a misdemeanor. [L 1972, c 9, pt of 1; gen ch 1993]

 

COMMENTARY ON 709-903

 

The purpose of laws dealing with nonsupport by a person who owes a duty of support to another is to enforce compliance with the legislative directive setting forth a community standard; yet a policy of strict criminal punishment of offenders would frustrate the purpose of the law by incapacitating (by incarceration or fine) the defendant from providing the support.

Exemplary punishment is of doubtful efficacy in complex family situations, where many forces, psychic, social, and economic, may combine to excuse, if not justify, the behavior. Moreover, imprisonment should be a last resort here, since it incapacitates the defendant from providing the very support which the community seeks to require and frustrates any broader effort to rehabilitate the family situation. Recent thought has favored the development of "family courts" staffed to handle non-support and other intra-family problems primarily through social work, with less concentration on purely fiscal aspects.[1]

The Code adopts the position that intervention of the criminal process ought to take place only as a last resort. The primary resort ought to be to the social and counseling processes of the Family Court. It is only when a record has been established of repeated, persistent failure to provide the support which the defendant can provide and which the defendant knows the defendant is obliged by law to provide that the criminal process ought to be employed.

By focussing on "persistent" defaulters, we express a legislative policy in favor of resort, in the first instance, to non-penal measures....

The concept of "persistent" violation is not unprecedented in penal law.... The term connotes repetition, obstinacy, wilfulness; and it is difficult to formulate a more precise standard to differentiate the aggravated case of continued defiance of the support law, which we wish to penalize, from the simple case of default which may be solved by an official notice or judicial order to pay, or some intelligent social work.[2]

There were a number of provisions in previous law which dealt with the problem of nonsupport, and they were not totally consistent with one another. None of them focused on the concept of persistent default as a condition precedent for a criminal sanction; however, in actual practice, the prosecutor probably required some degree of persistency.

Under Hawaii's adoption, in modified form of the Uniform Desertion and Nonsupport Act:

Any husband who deserts or wilfully neglects his wife, or wilfully fails, neglects, or refuses to provide for her support or maintenance, thereby reducing her to destitute or necessitous circumstances, or any parent who deserts or wilfully neglects his or her child or children under the age of sixteen years, or wilfully fails, neglects or refuses to provide for the support or maintenance of the child or children or wilfully fails, neglects, or refuses to pay amounts awarded for the support and maintenance of such child or children under a decree of divorce, thereby reducing the child or children to destitute or necessitous circumstances, shall be guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine not exceeding $500 or imprisonment not exceeding one year, or both; provided, that instead of imposing the sentence provided in this section the court may release the defendant under suspended sentence for such period as shall be fixed by the court and under such terms as shall be fixed by the court as to the payment weekly or otherwise of money for the support of the wife or child and as to giving security for such payments and for the appearance of the defendant at such time or times as the court shall direct. The terms so fixed by the court shall be subject to change or additional security at any time.[3]

Under the chapter dealing with protection of children, substantially similar conduct, as it related to children, subjected the offender to a sentence with approximately half the severity of that provided under the Uniform Act.

Any person who wilfully abandons...any child under his legal control or neglects to provide the child with suitable or necessary food or clothing...shall be fined not more than $200 or imprisoned not more than six months.[4]

The statutes imposing a duty of support are not exactly consistent in defining the extent of the duty. Although an illegitimate child does not have a right to be supported by its father,[5] if an action to establish paternity is brought and paternity is established, the child becomes entitled, with certain exceptions, to "support, maintenance and education" until the child reaches eighteen years of age.[6] Under certain specific circumstances, a step-parent is required to support his or her step-child.[7] The age to which the duty to support one's children continues is not specified, except in the case of illegitimates, although by inference it continues until the child has achieved majority.[8]

The Code attempts to reconcile some of the latent ambiguities which exist in comparing the various sections of prior law. A single section covering penal default of support provides a uniform authorized sentence for similar conduct. By covering "spouse, child or other dependent," the Code provides that the penal sanction may be employed in all cases where the support law establishes a duty of support. The use of the word "child" in this section is intended to cover all persons who have not reached the age of majority. The definition of support ensures that all forms of care which are required by the support law are covered. However, unlike the previous law, which, on its face, would allow resort to prosecution in the first instance of default, the Code requires that the default be persistent before a prosecution can be successfully maintained.

 

SUPPLEMENTAL COMMENTARY ON 709-903

 

The Proposed Draft had included "medical attention" as one of the items of "support." However, that was deleted by the Legislature in 1972. As stated in Conference Committee Report No. 2 (1972):

"Your Committee has agreed to the deletion of the words 'medical attention' as a requisite of the term 'support' in order to avoid penalizing the free exercise of certain religions."

 

Case Notes

 

Reasonable to conclude that term "support" includes medical attention and medical assistance, except where the exercise of religion is involved. 8 H. App. 506, 810 P.2d 672.

 

__________

709-903 Commentary:

 

1. M.P.C., Tentative Draft No. 9, comments at 188 (1959).

 

2. Id. at 188-189.

 

3. H.R.S. 575-1.

 

4. Id. 577-12.

 

5. See id. 577-14 (semble).

 

6. Id. 579-4.

 

7. Id. 577-4.

 

8. But see id. 571-2, which defines, for purposes of Chapter 571, "child" to mean "a person less than eighteen years of age."

 

580-56 Property rights following dissolution of marriage. (a) Every decree of divorce which does not specifically recite that the final division of the property of the parties is reserved for further hearing, decision, and orders shall finally divide the property of the parties to such action.

(b) Following the entry of a decree of divorce in any matrimonial action in which the final division of the property of the parties to such action is reserved for further hearings, decisions, and orders, notwithstanding the provisions of section 560:2-802, or any other provisions of the law to the contrary, each party to such action shall continue to have all of the rights to and interests in the property of the other party to such action as provided by chapter 533 and chapter 560, or as otherwise provided by law to the same extent he or she would have had such rights or interests if the decree of divorce had not been entered, until the entry of a decree or order finally dividing the property of the parties to such matrimonial action, or as provided in subsection (d) of this section.

(c) When a party to a matrimonial action has remarried following the entry of a decree of divorce, in which the final division of the property of the parties is reserved for further hearings, decisions, and orders, but prior to the entry of a decree or order finally dividing the property owned by the parties to that action, notwithstanding the provisions of chapter 533 and chapter 560, the spouse of such remarried party shall have none of the rights or interests in the former spouse's real property or personal estate as provided in chapter 533 and chapter 560, or as otherwise provided by law, until such time as a decree or order finally dividing the property owned by the parties or either of them as of the effective date of the entry of the decree of divorce dissolving his or her prior marriage shall be entered. Upon the entry of a decree or order finally dividing the property of the parties to a matrimonial action in which a decree of divorce has been entered, the spouse of a party to such action who has remarried shall have all of the rights of a spouse as provided by chapter 533 and chapter 560, or as otherwise provided by law, in and to the property of the former spouse vested in such spouse by such decree or order finally dividing the property of the parties or either of them, as of the effective date of the entry of the decree of dissolution of the prior marriage.

(d) Following the entry of a decree of divorce, or the entry of a decree or order finally dividing the property of the parties to a matrimonial action if the same is reserved in the decree of divorce, or the elapse of one year after entry of a decree or order reserving the final division of property of the party, a divorced spouse shall not be entitled to dower or curtesy in the former spouse's real estate, or any part thereof, nor to any share of the former spouse's personal estate. [CC 1859, 1332; RL 1925, 2986; RL 1935, 4483; RL 1945, 12234; RL 1955, 324-45; HRS 580-56; am L 1973, c 192, 2; am L 1983, c 209, 1]

 

Case Notes

 

Divorce cuts off right to dower. 12 H. 265; 35 H. 440.

Divorce court in one state does not have power to directly affect, by decree, title to real property in another state. 56 H. 295, 535 P.2d 1109.

One-year limitation applies to all entitlements to former spouse's personal estate; "personal estate" includes living person's property. Section does not violate due process by imposing unreasonable procedural requirement on adjudication of claim. 69 H. 1, 730 P.2d 338.

Section 580-47 controls the division of property of divorced parties in the event one dies in the interim between their divorce and the division of property. 70 H. 605, 780 P.2d 80.

Where family court's domestic relations order amending the initial divorce decree was not inconsistent with the language of the initial divorce decree or this section, the family court possessed appropriate jurisdiction to amend the divorce decree. 100 H. 397, 60 P.3d 798.

Where jurisdiction to divide the parties' property is not reserved, it terminates when the time to appeal the decree expires. 1 H. App. 605, 623 P.2d 893.

No inchoate dower right in property if only a reservation to purchase property existed on date of divorce decree. 4 H. App. 41, 659 P.2d 759.

Divorced spouse not entitled to former spouse's personal estate. 7 H. App. 286, 758 P.2d 197.

Does not divest family court of jurisdiction under family court rule to change division of property issue when request for change is based on a retroactive change in relevant federal law. 8 H. App. 559, 815 P.2d 28.

Section does not apply where family court lacks jurisdiction to finally adjudicate division and distribution of property and debts of parties. 9 H. App. 176, 830 P.2d 1158.

When computing subsection (d)'s "one year" period, the time from filing a notice of appeal of the family court's decree deciding division and distribution of property and debts to the entry of the appellate court's judgment on appeal is excluded. 9 H. App. 214, 832 P.2d 280.

In light of subsection (a), when the divorce decree ordered husband to transfer a specified value of husband's stocks and funds to wife, that specified value of husband's stocks and funds, for purposes of subsection (d), was no longer a part of husband's personal estate. 108 H. 504 (App.), 122 P.3d 284.

Cited: 21 H. 264, 266.

 

580-74 Support of spouse and children. Upon decreeing a separation, the court may make such further decree for the support and maintenance of either spouse and for the support, maintenance, and education of minor children, by either spouse, or out of the property of either spouse, as may appear just and proper; provided that the court shall apply the considerations required by section 580-47(a) in formulation of any support decree in any action under this part; and provided further that the court may amend or revise any such decree in the same manner and under the same circumstances as provided for by section 580-47(d). [CC 1859, 1338; am L 1903, c 22, 2; RL 1925, 2989; RL 1935, 4486; RL 1945, 12238; RL 1955, 324-63; HRS 580-74; am L 1973, c 211, 5(u); am L 1974, c 65, pt of 2; am L 1978, c 77, 3]

 

Case Notes

 

Order awarding alimony will not be disturbed where there has been no abuse of discretion. 9 H. 352.

Court cannot upon decreeing separation award specific property as alimony; words "or out of his property" limited by 580-13. 26 H. 128.

Alimony in gross not allowable upon decree of separation from bed and board. 27 H. 230.

Liability under order for temporary maintenance despite final decree of separate maintenance. 38 H. 148.

Considerations when decreeing alimony. 42 H. 279.

Section does not authorize division of property. 42 H. 279.

Cited: 31 H. 574, 576.

 

PART VI

PART VI. TERMINATION OF PARENTAL RIGHTS

 

571-61 Termination of parental rights; petition. (a) Relinquishment. The parents or either parent or the surviving parent who desire to relinquish parental rights to any natural or adopted child and thus make the child available for adoption or readoption, may petition the family court of the circuit in which they or he or she resides, or of the circuit in which the child resides, or was born, for the entry of a judgment of termination of parental rights. The petition shall be verified and shall be substantially in such form as may be prescribed by the judge or senior judge of the family court. The petition may be filed at any time following the mother's sixth month of pregnancy; provided that no judgment may be entered upon a petition concerning an unborn child until after the birth of the child and in respect to a legal parent or parents until the petitioner or petitioners have filed in the termination proceeding a written reaffirmation of their desires as expressed in the petition or in respect to a legal parent or parents until the petitioner or petitioners have been given not less than ten days' notice of a proposal for the entry of judgment and an opportunity to be heard in connection with such proposal.

(b) Involuntary termination.

(1) The family courts may terminate the parental rights in respect to any child as to any legal parent:

(A) Who has deserted the child without affording means of identification for a period of at least ninety days;

(B) Who has voluntarily surrendered the care and custody of the child to another for a period of at least two years;

(C) Who, when the child is in the custody of another, has failed to communicate with the child when able to do so for a period of at least one year;

(D) Who, when the child is in the custody of another, has failed to provide for care and support of the child when able to do so for a period of at least one year;

(E) Whose child has been removed from the parent's physical custody pursuant to legally authorized judicial action under section 571-11(9), and who is found to be unable to provide now and in the foreseeable future the care necessary for the well-being of the child;

(F) Who is found by the court to be mentally ill or mentally retarded and incapacitated from giving consent to the adoption of or from providing now and in the foreseeable future the care necessary for the well-being of the child;

(G) Who is found not to be the child's natural or adoptive father.

(2) The family courts may terminate the parental rights in respect to any minor of any natural but not legal father who is an adjudicated, presumed or concerned father under chapter 578, or who is named as the father on the child's birth certificate:

(A) Who falls within subparagraph (A), (B), (C), (D), (E), or (F) of paragraph (1);

(B) Whose child is sought to be adopted by the child's stepfather and the stepfather has lived with the child and the child's legal mother for a period of at least one year;

(C) Who is only a concerned father who has failed to file a petition for the adoption of the child or whose petition for the adoption of the child has been denied; or

(D) Who is found to be an unfit or improper parent or to be financially or otherwise unable to give the child a proper home and education.

(3) In respect to any proceedings under paragraphs (1) and (2), the authority to terminate parental rights may be exercised by the court only when a verified petition, substantially in the form above prescribed, has been filed by some responsible adult person on behalf of the child in the family court of the circuit in which the parent resides or the child resides or was born and the court has conducted a hearing of the petition. A copy of the petition, together with notice of the time and place of the hearing thereof, shall be personally served at least twenty days prior to the hearing upon the parent whose rights are sought to be terminated. If personal service cannot be effected within the State, service of the notice may be made as provided in section 634-23 or 634-24.

(4) The family courts may terminate the parental rights in respect to any child as to any natural father who is not the child's legal, adjudicated, presumed or concerned father under chapter 578.

Such authority may be exercised under this chapter only when a verified petition, substantially in the form above prescribed, has been filed by some responsible adult person on behalf of the child in the family court of the circuit in which the parent resides or the child resides or was born, and the court has conducted a hearing of the petition.

If the mother of the child files with the petition an affidavit representing that the identity or whereabouts of the child's father is unknown to her or not ascertainable by her or that other good cause exists why notice cannot or should not be given to the father, the court shall conduct a hearing to determine whether notice is required.

If the court finds that good cause exists why notice cannot or should not be given to the child's father, and that the father is neither the legal nor adjudicated nor presumed father of the child, nor has he demonstrated a reasonable degree of interest, concern, or responsibility as to the existence or welfare of the child, the court may enter an order authorizing the termination of the father's parental rights and the subsequent adoption of the child without notice to the father. [L 1965, c 232, pt of 1; Supp, 333-29; HRS 571-61; am L 1970, c 205, 2; am L 1971, c 46, 1; am L 1973, c 211, 1(h); am L 1974, c 74, 1; am L 1976, c 85, 14; am L 1980, c 55, 1; am L 1982, c 49, 1; am L 1983, c 171, 4; am L 1993, c 160, 2]

 

Case Notes

 

No constitutional right of minor mother was violated when during her absence from hearing she was represented by guardian ad litem. 52 H. 395, 477 P.2d 780.

In subsection (b)(1)(D): "Care and support" refers exclusively to financial support; involuntary termination may not occur absent finding of purpose to abdicate parental rights; one year period does not refer solely to the year immediately preceding petition's filing; not unconstitutionally vague. 64 H. 85, 637 P.2d 760.

"Foreseeable future" means three years from the filing date of the petition for termination of parental rights. 8 H. App. 66, 793 P.2d 669.

Record of child protective services case can be considered in a case brought under this section. 8 H. App. 161, 795 P.2d 294.

Father's right to custody was terminated and children were placed in the custody of foster parents. 8 H. App. 377, 805 P.2d 1215.

Nothing in subsection (a) or chapter 587 indicates that when the department of human services and the affected parents settle a termination proceeding, they may do so only by resorting to a subsection (a) proceeding. 90 H. 200 (App.), 978 P.2d 166.

Trial court erred in applying clear and convincing evidence standard of proof in deciding whether natural father was an unfit parent in a petition by grandparents for guardianship of the person of their grandson, as a guardianship of the person of a minor is neither absolute nor irrevocable, and the heightened standard of proof attendant upon those attributes of a termination of parental rights did not apply. 106 H. 75 (App.), 101 P.3d 684.

 

House Bill

[CHAPTER 583A]

UNIFORM CHILD-CUSTODY JURISDICTION

AND ENFORCEMENT ACT

 

Part I. General Provisions

Section

   583A‑101 Short title

   583A‑102 Definitions

   583A‑103 Proceedings governed by other law

   583A‑104 Application to Indian tribes

   583A‑105 International application of chapter

   583A‑106 Effect of child-custody determination

   583A‑107 Priority

   583A‑108 Notice to persons outside State

   583A‑109 Appearance and limited immunity

   583A‑110 Communication between courts

   583A‑111 Taking testimony in another state

   583A‑112 Cooperation between courts; preservation of

records

 

Part II. Jurisdiction

   583A‑201 Initial child‑custody jurisdiction

   583A‑202 Exclusive, continuing jurisdiction

   583A‑203 Jurisdiction to modify determination

   583A‑204 Temporary emergency jurisdiction

   583A‑205 Notice; opportunity to be heard; joinder

   583A‑206 Simultaneous proceedings

   583A‑207 Inconvenient forum

   583A‑208 Jurisdiction declined by reason of conduct

   583A‑209 Information to be submitted to court

   583A‑210 Appearance of parties and child

 

Part III. Enforcement

   583A‑301 Definitions

   583A‑302 Enforcement under Hague Convention

   583A‑303 Duty to enforce

   583A‑304 Temporary visitation

   583A‑305 Registration of child‑custody determination

   583A‑306 Enforcement of registered determination

   583A‑307 Simultaneous proceedings

   583A‑308 Expedited enforcement of child‑custody

determination

   583A‑309 Service of petition and order

   583A‑310 Hearing and order

   583A‑311 Warrant to take physical custody of child

   583A‑312 Costs, fees, and expenses

   583A‑313 Recognition and enforcement

   583A‑314 Appeals

   583A‑315 Role of attorney general and of prosecuting

attorneys

   583A‑316 Role of law enforcement

   583A‑317 Costs and expenses

 

(Make sure to consult a lawyer or check your local laws for any changes.)

Hawaii Divorce Laws




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