What Is an Uncontested Divorce and When Is It the Right Option?
Approximately 50% of marriages in the U.S. end in divorce. Fortunately, the Hawaii marriage rate is much better; as of July 2021, only 9.00% of Hawaiian residents have filed for divorce this year.
Still, even with this low rate, there is always a risk divorce can happen to you. Often spouses are taken by surprise when they receive service of a divorce complaint.
When contemplating a divorce you may question the different types of divorce and which you should file. Should you fil
e for a contested vs uncontested divorce and what are the differences? If you file an uncontested divorce can you handle it on your own or do you need to hire a divorce lawyer?
Whether you are planning to file or have received notice your spouse filed against you, keep reading for everything you need to know about the divorce process.
What Is an Uncontested Divorce?
An uncontested divorce is where you and your spouse agree to divorce and are able to reach a settlement agreement on the following areas:
Division of all assets, including real and personal property
Division of all debt
Spousal support, if appropriate
Child support and medical expenses
Child custody and parenting time
The benefits of an uncontested
divorce are that it eliminates lengthy litigation, numerous court hearings, and helps speed the process between the date of filing and date of completion. Because the process is shorter, the attorney fees are less.
Couples who are unable to agree on whether a divorce is necessary or have areas of conflict will need to file a contested divorce. Areas of contention indicating the need for a contested v. uncontested divorce include domestic violence, one spouse having substantially more earning power over the other, or a lengthy marriage with substantial assets and debt to divide.
A clear indicator that an uncontested divorce is not a good idea is if you and your spouse are unable to discuss anything without arguing. The divorce process increases stress. If you are unable to work together
amicably at the beginning, it will likely go from bad to worse.
Another area of considerat
ion is how comfortable you and your spouse are with preparing legal documents and making sure you know and follow all aspects of divorce law, court rules, and court procedures. Ignorance of the law is not an excuse when it comes to making sure everything is divided and written in accordance with legal requirements.
Facts About Filing For Divorce in Hawaii
All divorces in Hawaii are filed in Family Court. Even if your spouse does not want the divorce, the court will still grant you one if you believe the marriage is irretrievably broken.
Domicile requirements for filin
g a divorce include living continuously within the state for a minimum of six months immediately preceding the filing for divorce. You must also live within the circuit for at least three continuous months before filing, pursuant to §580-1 of the Hawaii Revised Statutes.
Hawaii is a “no-fault” state. This means that you do not have to blame your other spouse for inappropriate conduct to obtain a divorce. Fault is not a consideration when dividing property unless one spouse displays financial irresponsibility while the divorce is pending.
Division of Property and Debt
If you and your spouse are unable to reach an agreement, Hawaii’s marital partnership principles apply. This is a form
ula for dividing property.
The division of property impacts cash flow. Cash flow is a major consideration when determining child support. The Asset and Debt Statement that lists all assets and liabilities is the most important document when resolving financial matters in the divorce.
Hawaii does not have fixed rules about property division. The division principals focus on how much each spouse receives from the family’s net worth in the settlement. The factors that affect this decision include:
Each person’s assets and debts brought into the marriage
Each person’s inheritances and gifts received during the marriage
Current assets and debt of the marital estate
The formula estimates each person’
s net worth on the day of marriage and the date they received inheritances and gifts. Anything remaining is divided equally.
As long as they were created in accordance with the law, Hawaii enforces both premarital and postnuptial agreements.
Dividing pensions and retirement accounts requires a separate court order. Divorcing persons must get documentation for every retirement account they have and find out whether division requires a separate order.
Child Custody, Parenting Time, and Support
Family court does not have custody time-sharing guidelines. You and your spouse can agree on a parenting schedule you determine appropriate.
If you and your spouse cannot agree on custody and parenting time, the court will decide. In Hawaii, the courts recognize and award both legal and physical custody separately. This means that both parents may have an equal say in legal decisions regarding the child, including schooling, religious instruction, and medical decisions. Physical custody may be either joint or awarded to one parent with the non-custodial parent having parenting time (visitation) with the child.
The Family Court uses a mandatory mathematical formula to determine an appropriate amount of child support. This formula takes into account the following:
How much time each parent spends with the child
Each parent’s gross income
Child care costs
Medical insurance coverage for the children
There are no Family Court guidelines for health care expenses and educational expenses of the minor child. The Divorce Decree must include parental responsibility for health care insurance, uninsured health care expenses, and educational expenses.
To receive alimony in Hawaii you need to show that you are unable to support yourself at the marital standard of living. You must also show that your spouse has a higher level of income than they need to maintain their own marital standard of living. If you are able to prove both items, the Family Court will decide if awarding spousal support is appropriate.
Do I Need a Lawyer For an Uncontested Divorce?
People often wonder if they need to hire a divorce lawyer. If you are trying to handle this on your own, you must educate yourself about both the law and divorce procedures.
ou will need to learn about special requirements when you have minor children. Review all materials for divorcing spouses on the Judiciary website, and refer to the Hawaii State Bar Association Divorce Manual as necessary. You will need to comply with all aspects of divorce law and represent yourself in court.
With an uncontested divorce, there is always the assumption that things will go easy and there is no need for a divorce lawyer. This is not necessarily true. Even if you and your spouse have no conflicts at the time the divorce begins, as the process continues disagreements may arise.
Even if you believe you can handle your divorce without an attorney, it is advisable to have an attorney review your proposed agreement to see if you are receiving an equitable settlement under the law.
Uncontested Divorce Consultation
If you are considering an uncontested divorce, we invite you to schedule a consultation with Pacific States Legal Group.
Attorney Jerry Scatena has more than 40 years of experience in family law and can provide you with an evaluation of your case. This includes whether filing an uncontested divorce is your best choice. Co
ntact us online or call (808) 329-2076 today.