Here’s what you need to know about the alimony process in Hawaii.
- Who is Entitled to Alimony in Hawaii?
- Types of Alimony in Hawaii
- What Factors Are Used to Determine Alimony in Hawaii?
- Modifying or Terminating Spousal Support in Hawaii
- Enforcing Hawaii Spousal Support Awards
- Spousal Support and Taxes
- Hawaii Alimony FAQs
Who is Entitled to Alimony in Hawaii?
Spousal support is also called alimony or spousal maintenance and is a court-ordered payment from one spouse to the other. It is based on one spouse’s needs and the other spouse’s ability to pay. It is designed to maintain a standard of living the parties enjoyed during the marriage.
Alimony is not automatically granted. A spouse must request as part of the divorce process. There is also no guarantee that maintenance will be awarded.
Types of Alimony in Hawaii
Hawaiian courts can award the following types of alimony.
Temporary alimony is important to help spouses meet their financial needs before the divorce is finalized. It is also known as pendente lite alimony. Before the final divorce, divorcing parties should not have to liquidate assets to pay their living expenses. It remains in effect until the divorce is finalized, and then it ends. Sometimes it is replaced with other forms of alimony but that’s not always the case.
Following a divorce, the judge will determine whether short-term transitional spousal support is appropriate. This alimony helps the lower-earning spouse adjust to a new lifestyle after divorce. It lasts only a few months after the divorce is finalized.
A lower-earning spouse may receive this alimony to help them become self-supporting. It is usually awarded to allow a spouse to go back to school and get the necessary education or vocational training to acquire employment.
Rehabilitative short-term alimony lasts for as long as a judge believes is necessary for the party seeking support to get employment. The spouse must submit a plan to the family court explaining how the plan will help them get a suitable job within the specified period.
Permanent alimony isn’t exactly “permanent” as its name suggests, but it is extended for years and possibly until the receiving spouse dies. It is rare, but it can be awarded in long-term marriages to a spouse who cannot get employment due to a medical condition or advanced age.
Couples can also negotiate their own alimony agreement. Sometimes they do this on their own or with the help of a mediator. When the agreement is done, a judge will need to review and approve it.
What Factors Are Used to Determine Alimony in Hawaii?
In Hawaii, alimony is requested during the divorce proceeding. When a person files a complaint for divorce, they must ask for spousal support in their complaint. It is not automatically included or awarded. Judges look at each alimony request on a case-by-case basis, and they have broad discretion to decide if it should be awarded, for how long, and for what amount.
An alimony determination is generally performed by a family court judge who is responsible for a divorce case. When the court finds that support is necessary, the judge will evaluate the following factors:
- Each spouse’s financial resources
- The supported spouse’s ability to meet financial needs without support
- The probable duration of the supported spouse’s need for spousal support.
- The length of the marriage
- The marital standard of living
- Each spouse’s age, physical and mental health condition
- Each spouse’s usual occupation during the marriage
- The supported spouse’s vocational skills and employability
- Each spouse’s living expenses needs
- Custodial and child support responsibilities
- The paying spouse’s ability to meet both spouse’s financial needs
- Any other relevant factors
Instead of post-divorce alimony being awarded, post-divorce monthly property division payments are made, or a lump sum cash payment is made, which may extend over several larger payments, or disparate property division is made awarded.
Alimony duration depends on the type that is awarded.
Transitional alimony is generally awarded for 2 to 4 years post-divorce. Rehabilitative alimony is generally awarded for 4 to 6 years post-divorce.
Some alimony recipients are displaced homemakers who never worked outside of the home and are close to retirement age at the time of divorce. Hawaiian law states that alimony cannot be longer than the marriage, and rarely is alimony awarded for the remainder of the alimony recipient’s life.
Instead, a disparate property division is awarded, which means the alimony recipient receives more than 50% of divorce equity or net worth.
Custody of children and child support required between parties are key factors when determining alimony. If the spouse with custody of the children can’t support themselves due to the children being of an age or condition that hinders the individual’s ability to support the child, and they must remain home to care for the child, it would severely influence the case for alimony to be received by the custodian of said child or children.
Modifying or Terminating Spousal Support in Hawaii
Either spouse can ask the court to review an alimony order at any point in the future. Before the court reviews the order, the requesting spouse must submit an affidavit explaining that there is a material change in circumstances (physical, financial, etc.) since the last order.
If the court determines that the change is substantial enough that it makes the current award unfair or unbalanced, the judge will change or terminate the amount or duration of the award.
Unless the couple agreed otherwise, spousal support automatically terminates when the supported spouse remarries. Alimony also ends when either spouse passes away. The remarried spouse must file a notice of the remarriage with the court within 30 days of the marriage, or risk paying attorney fees, costs, and reimbursement of spousal support. Alimony also ends when either spouse passes away.
If an alimony agreement dоеѕ nоt hаvе a tеrmіnаtіоn date, the paying spouse must соntіnuе with payments untіl thе соurt dесіdеѕ that nо рауmеntѕ аrе rеquіrеd. If you request a modification, know that the current terms remain in effect until and unless a judge determines otherwise.
Read More: Hawaii Divorce Guide
Enforcing Hawaii Spousal Support Awards
Most alimony orders require payments to go through the Child Support Enforcement Agency (CSEA) for the state. If alimony goes through the CESA, the supported spouse will receive the payments directly from the paying spouse’s paychecks in an action known as wage garnishment.
In cases when the paying party doesn’t have a steady job but has a large number of assets, the court will order a lump-sum payment of support.
When a wage garnishment order is not in place or a lump sum arrangement is not practical, alimony paid late is called alimony arrears. An alimony award is a court order, and the court can step in and force compliance to bring payments current.
Usually, the judge will schedule a court hearing and might give you more time to pay what you owe or come up with a new payment plan. If you fail to make payments again, you might face more severe penalties.
Non-payment can result in possible contempt of court charges. The penalties for contempt may include fines, personal and real property liens, and even jail time.
Because family courts in Hawaii track spousal support payments, the receiving spouse doesn’t have to file a complaint for the paying spouse to be held in contempt of court. In such cases, the state’s attorney will likely file the paperwork themselves.
Spousal Support and Taxes
Due to recent changes in Federal laws, the payer cannot deduct support payments under a divorce or separation instrument executed after 2018. These payments are also not included as taxable income for recipients.
The same is true of alimony paid under a divorce or separation instrument executed before 2019 and modified after 2018 if the modification expressly states that the alimony isn’t deductible to the payor spouse or included in the income of the recipient spouse.
Taxpayers who pay support under a divorce agreement executed before 2019 can deduct those payments from taxes when the following criteria are met:
- The recipient must be a spouse or former spouse
- There must be a written divorce or separation instrument
- Alimony must be made with cash payments (such as checks and money orders)
- Maintenance does not continue after the recipient dies
- The parties must live apart, residing in different households
- The parties must file separate tax returns (they cannot file a joint return and claim the alimony deduction)
- The court-ordered payment of alimony cannot state that payments are not deductible
Read More: Life Insurance and Divorce: A Complete Guide
Hawaii Alimony FAQs
Is marital fault considered when awarding alimony in Hawaii?
Hawaii does not consider marital fault when determining alimony payments. This means that divorces considered “at fault” due to cheating or infidelity, abuse, or other factors do not affect calculating alimony payments.
Is child custody status considered when determining alimony in Hawaii?
Hawaiian judges consider child custodial status when determining alimony payments. This means that alimony calculations are affected by whether or not the receiving spouse has custody of the children. A custodial parent may receive higher alimony payments to offset costs not fully covered by child support payments.
Can alimony be waived by a prenuptial agreement?
Yes, the terms of a valid prenuptial agreement will control the final alimony order. If the prenup states that no alimony will be paid in a divorce, the court is bound to honor that agreement.
How Does adultery affect Hawaiian alimony awards?
Judgеѕ in Hawaii саnnot consider аdultеrу or any оthеr kind of marital misconduct such as abuse or abandonment when thеу arе dесіdіng alimony issues.