The Basics of Annulment in Hawaii

Wondering if you can get an annulment? Learn about the grounds for an annulment and how to get one in Hawaii.

Overview of Annulment

This article focuses on "civil annulments" not "religious annulments," which can only be granted by a church or clergy member. Civil annulments and divorces are similar in the sense that they make a determination about marital status. But a divorce, on the one hand, ends an existing, valid marriage, whereas  annulment  simply declares that what everyone thought was a marriage was never actually a marriage at all. In the eyes of the law, an annulled marriage never really existed.

If you pursue an annulment in Hawaii and win, you'll receive something called a "decree of nullity." This is a final court order that means that your marriage was void. It's very rare to obtain an annulment in Hawaii.

Grounds for an Annulment in Hawaii

In Hawaii, the reasons, or "grounds," for annulment are:

  • incestuous marriage - the couple is related to each other as  ancestor  or descendant of any degree, including half-brothers and half-sisters, uncle and niece, aunt and nephew.
  • underage marriage - one or both spouses  was  underage at the time of marriage. In this case, the annulment action is brought by the parent or guardian. However, if the underage spouse reaches the legal age and continues to live with the  older  spouse, no action for annulment can be brought on the basis of youth.
  • bigamous marriage - either spouse is still legally married to another living person.
  • incapacity -  one of the spouses lacked the mental capacity (ability) to consent to marriage. If the mental problem is permanent or ongoing, the sick spouse's guardian can apply for an annulment. However, if the mental problem has passed and the ill spouse has regained the mental capacity necessary to consent to marriage, the marriage  can't  be annulled.
  • fraud, coercion or duress - one or both spouses consented to the marriage because of force, duress (coercion) or fraud (this is not a ground for annulment if the wronged spouse learned about the force, duress, or fraud and chose to live with the wrongdoer spouse anyway).
  • concealed disease -  one of the spouses suffered from a "loathsome disease" and concealed that fact from the other spouse.

How Do I Get an Annulment?

If any of the above grounds exist, then the marriage can possibly be annulled. You or your spouse have the right to request an annulment. You will need to file a complaint in the family court of the circuit court where you live or have been physically present for at least three months.

The annulment process officially begins when you file a complaint with the court. If you're seeking the annulment, you're the "plaintiff." The complaint has to explain what you want and your reasoning for why you should get it. In other words, you need to explain that you want an annulment and the reasons why it should be granted. Be sure to explain any additional facts and requests about your children, property, and financial needs.

You'll take the complaint to your circuit courthouse and file it with the clerk of court. The clerk will issue a summons and then it will be personally delivered to the "defendant" (your spouse) by an official process server. (If the defendant is living outside of the circuit, service will be made by registered or certified mail.)

The defendant has 20 days to respond to the complaint with a written answer. If there's no answer within 20 days, you may be able to get a default judgment, meaning that the court might give you everything you want.

When the annulment begins, the court has the power to order you and your spouse to make full financial and property  disclosures  to each other, refrain from spending money or diminishing assets except for regular living expenses, or even appoint a special master (usually a financial expert) to make special recommendations if your finances are complicated.

If you're thinking about asking for an annulment, it's a good idea to talk to a lawyer first. In addition to the custodial and child support issues you'll face if you have kids, there could be very serious financial ramifications for you. You will also want to discuss any possible "statutes of limitations" (deadlines for filing) with an attorney to make sure you don’t miss any deadlines.

Effect of an Annulment

In Hawaii, the effect of a decree of annulment is that both parties become  single people  again and can remarry.

Some people worry that if their marriage is declared void, the paternity of their children will be called into question. This is not an issue in Hawaii, because Hawaii protects children with a statute that says that upon the annulment of a marriage, the issue (children) of the marriage are still legitimate. A separate law even says that children of "illegal marriages" are entitled to inherit from their parents as if the parents were lawfully married. Thus, if you have children and want to annul your marriage, a judge will decide custody, child support, and visitation too.

Many state courts, including Hawaii, don’t have statutory authority to award alimony or divide property or debts as part of an annulment case. The logic behind this is that there cannot be a marital estate to divide if there wasn't a valid marriage to begin with.

Hawaii courts can't award permanent alimony as part of an annulment because spousal support is only available from one former spouse to another, whereas an annulment says that the parties were never spouses at all.

Nonetheless, in annulment cases based on fraud, a Hawaii court does have the discretion to order the spouse who perpetrated the fraud to pay the "innocent spouse" a "just allowance for the support of the deceived spouse and family." This includes requiring the defendant to pay witness and trial fees incurred by the plaintiff.

Resources

This page  from the Hawaii State Judiciary can help you determine what circuit you're in and how much you can expect to pay in filing fees.

If you need legal advice, contact the  Legal Aid Society of Hawaii  to see if you qualify for free or reduced-cost representation. They have 10 offices throughout Hawaii.

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