Divorce/ Separation & Annulment

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1 3 Divorce/ Separation & Annulment table of contents Contested Divorce Flow Chart see left IF ABUSE IN THE RELATIONSHIP: Safety Plan Temporary Restraining Order PATERNITY: What is paternity How to establish JURISDICTION/NO FAULT STATE CHILDREN S ISSUES Child custody Visitation Child support DIVISION OF ASSETS & DEBTS OTHER ISSUES: Alimony, Last Name UNCONTESTED VS. CONTESTED DIVORCE IF YOU HAVE RECEIVED DIVORCE PAPERS TESTIMONY BY PHONE (O`ahu information only) SEPARATION / ANNULMENT Court forms see court forms manual

2 Divorce A. Safety Plan -for You & Your Children -- Consider where you and your children would go and what you would do if your spouse came back or if you were in a dangerous situation. -- The Shelter number is: OAHU: ; MAUI: ; HAWAII: Keep it in the bottom of your purse. They are open 24 hours, and your kids can go there too. --Other agencies that can help you: OAHU: Domestic Violence Clearing House (DVCLH) , Toll Free ; MAUI: Women Helping Women at ; HAWAII: Alternatives to Violence (ATV): Hilo: , Kona: I. If Abuse in the Relationship: B. Get a Temporary Restraining Order [ADVOCATE: see TRO script] 1. What You Should Do: --OAHU: Call Family Court Also call -- Think about whom you or your children DVCLH to see if they can represent you. should call: give your children numbers to call --MAUI: if you live in East Maui, Kahului, or and places to go in emergency situations. Upcountry call Child & Family Services, at Talk to your neighbors and children: let 6888; Elsewhere: call Women Helping Women at them know what is going on HAWAII: Alternatives to Violence (ATV); Hilo: -- Have a code word you use with some ; Kona: for your ex-parte TRO. family or friends that let them know to call the police. Call us back for possible representation at your hearing. -- Keep essential items with you, Be open and honest with the court worker about (medication, phone numbers, extra cash, extra all the incidents of abuse. change (Oahu of clothes, only) birth If you certificates, need babysitting keys, service while you go down, call Central Union Church. shelter number, identification) in case you have to leave quickly in an emergency situation. 3. Counseling for victims of domestic abuse: -- OAHU: The Family Peace Center: MAUI: Child & Family Services: and Women Helping Women: HAWAII: ATV( offers counseling for victims of domestic abuse): Hilo: ; Kona: ; Island Crisis Help:

3 II. Paternity [ADVOCATE: See Paternity script.] Paternity is an issue in a divorce if there were children born during the marriage which are not the husband s, and if the wife is currently pregnant. (See paternity script) A. Why do I need to establish paternity to get a divorce? Some (not all) judges will not grant you a divorce until you first have gone through a paternity action for all children born during the marriage who are not the husband s (even if his name is on the birth certificate). B. To Establish Paternity: Call CSEA: Statewide phone number: Oahu: If caller wants to establish paternity, quickest way to get a response is to fax a letter requesting paternity be established to CSEA office. FAX: Or caller can visit office or mail request to 601 Kamokila Blvd, Kapolei Outer Islands: Either call, visit the CSEA office in person, or mail a letter requesting paternity be established. MAUI: 2145 Kaohu Street, Suit 105, Wailuku BIG ISLAND: 777 Kilauea Avenue, Hilo KAUAI: 4180 Rice Street, Suite 104, Lihue Be aware: When you establish paternity you are giving the father legal rights and responsibilities where he has none. The father will acquire the right to visitation and custody. III. Jurisdiction / No-Fault State A. Jurisdiction You have to have lived on your island for 3 months and in the State for 6 months to file for divorce in Honolulu. If you haven t lived here long enough, you can t file. You can: 1. wait until you ve lived here long enough, 2. return to your last place of residence and file for divorce there (contact the Legal Aid in that state as divorce laws differ); 3. get a TRO if there s been abuse and you want to temporarily decide custody and safety issues. B. Hawaii Is A No-Fault Divorce State You do not have to prove fault to get a divorce. You can get a divorce even if your spouse does not want one. All you have to say is that your marriage is irretrievably broken and there is no likelihood of reconciliation 2

4 IV. Children Issues Decided in a Divorce A. Child Custody: two types, physical and legal, both can be either sole or joint. If you and your spouse cannot agree on who gets custody, the court decides for you. i. Physical custody (sole or joint): whom the children live with. ii. Legal Custody (sole or joint): which parent is responsible for making the major decisions in the child s life, such as choice of religion or education. Social Study (if abuse or contested): In a Social Study, a court worker looks closely at your lifestyle, your spouse s lifestyle, your child, and abuse within the relationship, and makes a recommendation to the Court of what is in the child s best interest. B. Visitation [ADVOCATE: Send Types of Visitation flier from family court] Visitation can range from frequent to never (although never is only awarded in extreme situations) and can be very flexible or very rigid. You can also decide future visitation schedules, if, for example, you know that you will be moving in six months, and you anticipate that the schedule will change then. The court decides this issue for you if you and your spouse cannot agree. "Reasonable Visitation": means you and your spouse will decide the visitation schedule, it will not be specified in the divorce papers. If you request reasonable visitation, you need to be sure that you and your spouse will be able to work out visitation issues in the future. If you have had problems with your spouse over visitation issues during your separation, you may want to be specific in the divorce papers regarding the visitation schedule. Visitation types A,B,C: The courts created three visitation schedules to fit different types of situations, for example, if the parents live on different islands or states. We ll send you a copy of the types of visitation. [ADVOCATE: mail out visitation schedule] Request Supervised Visitation if : -- drug or alcohol use by spouse around kids -- abuse of kids -- fear for kids safety Supervised visitation: parent gets to see the kids, but only under supervision by another person such as a relative or friend, in a designated area. You can also request designated drop-off and pick-up sites that are in public places, like the police station or McDonald s. For more information on supervised visitation call: OAHU: ; MAUI: call Parents and Children Together (PACT); they supervise for a cost. HAWAII: The Family Center ; They may supervise for a cost. 3

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6 C. Child Support: (non-negotiable) Amount of child support is based on a court-ordered formula (not negotiable between partners). The court plugs in incomes and expenses of both parents, to come out with a formulated amount. The minimum amount of child support for someone who is not working or receiving any income is $50 per month per child, even if non-custodial parent is on welfare or in prison. If the noncustodial parent is working, a portion of his/her paycheck can be garnished by the State to pay child support. (See child support script.) IV. Division of Assets and Debts: A Divorce will divide marital assets (anything of value acquired during the marriage): for example, your car, tools, a house, land, silverware, jewelry, bank accounts. A Divorce will divide marital debts (any bills acquired during the marriage); for example a car loan or credit card bills. Generally, these debts are under both your names. Creditors do not honor your divorce decree: if the one doesn t pay the debt, the creditors can still go after the other. To avoid this, write your credit card companies and take your name off of cards with his/her debts. Also, if they come after you, you have to go to Family Court and get your decree enforced.. [ADVOCATE: Mail Sample letter of non-responsibility ] If you can t agree on division of assets and debts, the court does so for you. Generally the court divides up debts and assets based on what is fair and equitable. Usually, this means joint assets and debts are split 50-50, but not always. V. Other Issues Alimony: rehabilitation payment, rarely awarded if contested. Awarded when married for a long time and one spouse worked while the other did not. Wife s last name: can change it back to maiden name in a divorce. VI. Uncontested vs. Contested Divorce A. Uncontested Divorce: [ADVOCATE: check case acceptance and refer to uncontested divorce clinic if meets criteria] Must agree: you and your spouse must agree on all the issues (custody, visitation, dividing of assets and debts) 5

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8 Many advantages: A. it s quicker (about 2 months to finalize once you complete forms) B. you can do it on your own; you don t need an attorney; C. you don t have to go before a judge; D. it s cheaper: no cost for forms; no cost for attorneys. The filing fee can be waived if you are poor. [ADVOCATE: mail out Family Court Fee Waiver brochure] Use mediation if you need help coming to an agreement: --OAHU: Call Neighborhood Justice Center: ; --MAUI: call Mediation Services: HAWAII: HILO: Ku`ikahi YMCA Mediation Center ; Kona: West Hawaii Mediation Services or If you are afraid of your spouse or there has been serious abuse, uncontested is probably not appropriate for you. You will have to work face to face with your spouse on difficult issues, and experience has shown that the abuser will be able to manipulate an agreement that you may not be comfortable with. Call the following agency for more help: OAHU: Domestic Violence Clearinghouse (DVCLH) ; Toll Free ; MAUI: Women Helping Women: ; Child & Family Services: HAWAII: Alternatives to Violence: Hilo: , Kona: LASH has a monthly uncontested divorce clinic. We guide you through the uncontested divorce process. OAHU: $25 HILO and KONA: $25 fee; MAUI: Call Hawaii Lawyers Care for their clinic ($40). If you take the clinic, the court s You ve Received Divorce Papers Respond to all deadlines, or your spouse may be granted everything s/he wants by default. A. If your papers are from Hawaii: Answer the Complaint within 20 days, (we have a form we can send you): -- Write the Court a letter listing each paragraph in the complaint, and whether you agree or disagree with it. -- Include your name, spouse s name, and FCD#. (Write the names as they appear on the complaint. The Family Court Document Number is located on the upper corner.) -- Make 6 copies. File them with Family Court: 777 Punchbowl Street, On Maui, Hoapili Hale, 2145 Main Street, Wailuku, 96793, Hilo: Third Circuit Court, 75 Aupuni St. ( ); Kona: Family Court, Lenders Document Bldg., Nalani St. ( ) (Filing simply means the court clerk date-stamps your copies and originals.) Give one copy to the court, two to your spouse or spouse s attorney, and keep the rest. If you have missed the 20 day deadline, file an answer immediately. If it is too late, the divorce may be granted by default. [ADVOCATE:Mail Divorce: Writing your answer ] B. If your divorce papers are from another state: Divorce laws differ in each state, seek legal advice from an attorney licensed to practice in that state. Call the Legal Aid in that area. If your children have lived in Hawaii for more than 6 months and your paperwork includes provisions about child custody for these children, you can argue in your response that the children are residents of Hawaii and therefore the out-of-state court cannot address this issue. Make sure you provide addresses of where the children have lived for the past five years for the out-of-state court. [ADVOCATE:Mail Responding to out of state court papers, and Divorce: Writing your answer ] 7

9 filing fee is waived ($160 if either spouse has kids, otherwise, $100.) You can also pick up the forms for an uncontested divorce at Family Court. If you understand from the court s instructions how to fill them out, you may not need the clinic. OAHU: 777 Punchbowl St.; 2nd Floor; Court Management Services; MAUI: Hoapili Hale, 2145 Main Street, Wailuku; HILO: Third Circuit Court 75, Aupuni St. ( ); KONA: ( ) B. Contested Divorce If you and your spouse cannot agree, the court will decide for you. The process is complex and long, you should try to get an attorney. Call LRS. Can take up to 1-2 years to finalize. VII. Testifying By Phone In Divorce Cases If you are out-of-state and want to testify by phone in your divorce hearing, you need to ask the court for permission. There are different procedures for the different types of divorce hearings. [ADVOCATE: These instructions apply to First Circuit (O`ahu) only. Have them call the Family Court on their island to find out procedures on other islands. ] Hearings for Pre and Post Decree Relief Write a letter to the court asking for permission to testify by phone. Include the following information: 1. The date and time of your hearing. 2. The issues to be presented at the proceeding. 3. 8

10 Separation & Annulment Options other than divorce I. Separation A separation is useful in limited situations: if you and your spouse can work things out eventually, but need some legal decisions made in the meantime. A separation is a difficult and unnecessary step if you eventually may want a divorce. A separation can take as long to finalize, and be as complicated as filing a divorce. The paperwork is more complicated than a divorce. There are no court forms for separation. You must type them from scratch. A separation is only good for 2 years. It does not turn into a divorce after that. Once it expires, the decree has no legal effect. A separation does not permanently divide your assets and debts. Once the separation expires, you will have divide them again. It may be unnecessary: If you and your spouse can agree on temporary arrangements, you may not need a separation. If you need to have court orders to protect assets or allocate temporary debt responsibility, you can get them in a divorce. A divorce action can be dismissed anytime prior to the final decree, in the event of a reconciliation. II. Annulment An annulment voids your marriage It is appropriate only if you and/or your spouse: -- are related by blood; -- were a minor at the time of marriage, or were mentally incapable of consenting to the marriage, and once you attained legal age or mental capacity, you no longer lived together as husband and wife. -- were legally married to someone else who was living at the time of marriage. -- were coerced into the marriage by force, fraud or duress, and you didn t live together after the marriage. -- suffered from or was afflicted with a loathsome disease. Children from an annulled marriage are considered to be legitimate, and can inherit just the same as if the marriage of their parents had been valid. To initiate an annulment action, get a private attorney to help you. Legal Aid Society of Hawaii (D:\Gabe's Docs in D\AA-Gabe's Stuff\KISS\Hotline Info\Script Samples\DIV-SEP.wpd) Revised February 15,

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