When a couple divorces, all the fruits of a marriage must be sorted out by the courts. Among the many tasks the court must perform, a universal one is property division, specifically Hawaii property division.
No divorcing couple should proceed without at least consulting a licensed Family Law attorney. Property division laws can be confusing, vary from state to state and judges are more likely to rule favorably for those represented by competent attorneys.
Property Division Divorce Laws in Hawaii
The purpose of Hawaii property division laws is to make sure that marital property is allocated to each spouse equitably, though not necessarily in a 50-50 split, under Hawaii Revised Statute §580-47. The trial court judge receives great discretion when converting Hawaii marital property into separate Hawaii divorce property.
Hawaii is an equitable distribution state. This means that with regard to Hawaii divorce assets, anything the spouses had before a marriage usually will not be included in Hawaii divorce assets or Hawaii divorce property. Only marital property under Hawaii law is typically included in property division.
However, separate & non-marital property may be included in property division if the trial judge feels this is necessary to make each spouse whole after the divorce. This is permitted under Hawaii case law.
What is considered Marital and Non-Marital Property?
Marital or community property consists of property acquired by either spouse during the marriage.
Non-marital property is defined under Hawaii Statute §572-25 as property each spouse had before the marriage. There is also a presumption that all property acquired in the name of either spouse, without regard to the time of acquisition thereof, is the separate property of the spouse in the name of whom the property was acquired, according to §572-21.
Dividing Assets and Debt
After the court decides which property is available for distribution, the next step is property valuation. The final step is the allocation of marital property.
Under Hawaii case law, the court considers a number of factors in dividing assets and debt. Some of these are:
- The parties' merits
- The parties' respective abilities
- The result of the divorce on each party
- All other matters which would have a bearing on the division & distribution of property
Using such factors, judges decide how a marriage's assets should be divided. Here is a list of the most common property items and the most common allocation scheme used.
- Cash: Divided equitably among the
- Example 1: A joint savings account has $5,000. The court would most likely award a portion of the money to each spouse.
- Example 2: A joint savings account has $5,000. One spouse contributed $4,000 and the other contributed $1,000. The amount may be divided in an even split or may be more balanced if the $1,000 contributor has fewer assets than the $4,000 contributor.
- Retirement Plans: Divided based on the
duration of the marriage at the time the benefits accrued, looking at the
present value of the plan and/or survivor benefits.
- Example 1: A spouse got benefits in a retirement plan after working for 25 years and was married for 20 of those years. The ex-spouse would be entitled to a portion of the retirement plan that was acquired during the marriage.
- Example 2: A spouse has an unvested retirement plan. No division takes place until the plan is payable to the spouse who has it but may be considered marital property subject to property division.
- Vehicles: Divided based on the values at
the date determined by the trial court.
May be sold or given to a spouse outright.
- Example 1: A car is owned by a spouse. The car may be sold with the proceeds to be given to a poorer ex-spouse or given to the ex-spouse outright.
- Example 2: A boat has a shared title. The boat may be sold with the proceeds going to each spouse equally or given to a poorer spouse.
- Insurance: Determined based upon each
spouse's health, availability of alternate insurance and premium payments from
- Example 1: One spouse has covered the other under employer health insurance. The other spouse is in poor health and could afford alternate health care coverage. The court may order the first spouse to continue covering that spouse until (s)he receives alternate coverage.
- Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits. If the ex-spouse does not have any type of insurance benefits, the court may order that the ex-spouse continues to receive the coverage.
Settling Disputes in a Divorce Case with Property and Asset Division
According to Hawaii Statute §580-47(b), the order for property distribution is final and conclusive for both parties so an aggrieved spouse would have to go to the appellate court if there are problems with the trial court's order.
However, the trial court's determinations will not be changed unless the property division was clearly unjust.
Help From a Hawaii Property Divorce Lawyer
It can not be stressed enough that retaining a Hawaii property divorce lawyer is key to getting the fairest and most equitable result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.