If you and your spouse have decided to end your marriage due to one spouse's adultery, you may have questions about the divorce proceeding in general and specifically, whether the adultery will impact any aspect of the divorce.
This article provides an overview of alimony in Hawaii and reviews whether either spouse's adultery can impact an alimony award. If you still have questions after reading this article, you should contact an experienced family law attorney for advice.
Alimony (which is technically called “maintenance” in Hawaii and other states) is the money that one spouse ("theobligor") pays to the other ("the obligee") as part of the divorce proceedings. The purpose of alimony is to prevent major inequalities by ensuring that neither spouse is penniless when the marriage ends. The goal of alimony is to ensure that both spouses are able to provide for their own needs, and that neither walks away with a disproportionate share of the marital estate.
There are different kinds of alimony. For example, the court can order an obligor to pay alimony as soon as the divorce papers are filed, to make sure the obligee has enough money to make it through the proceedings. Or, alimony can be awarded in the court’s final order and made “permanent,” meaning it has to be paid indefinitely. Alimony can also be temporary or “rehabilitative,” meaning that it’s paid for only so long as it takes to help theobligee become gainfully employed and financially self-reliant.
Whether alimony is awarded, and if so, in what amount and for how long, is a decision that will vary with the unique facts of each divorce case.
Get more detailed information how the amount of alimony is determined, see Understanding and Calculating Alimony in Hawaii.
Hawaii is a “no-fault” divorce state. This means that it doesn’t matter who did what to whom, or who is to blame for the divorce. If spouses separate for two or more years, or one spouse states in the paperwork that the marriage is “irretrievably broken” (meaning, it's beyond salvation), then a judge will grant the divorce.
Not all states are like Hawaii. In other places, known as “fault-based” states, “marital misconduct” is considered in the divorce. “Marital misconduct” is wrongdoing committed by a “guilty spouse” against an “innocent spouse.” Examples include chemical dependency, abuse, fraud, and of course, adultery. Most legal experts define adultery as occurring when a spouse enters into a sexual relationship with another person outside of the marriage.
Judges in Hawaii don't consider evidence of adultery when deciding whether to grant a divorce. So the question then becomes whether they consider adultery when they make decisions about alimony.
The short answer is: It doesn’t. Judges can’t consider adultery, or any other kind of marital misconduct, when they’re deciding what to do about alimony. In a landmark decision, the Hawaii Intermediate Court of Appeals said that “allowing one spouse to be relieved of [alimony] obligations because of the wrongful conduct of the other spouse would be contrary to Hawaii’s current approach to family law.” Queen’s Medical Center v. Kagawa, 967 P.2d 686, 696 (Haw. Ct. App. 1998).
The court said that looking at marital fault is an old-fashioned trend that “is unquestionably not in keeping with the modern trend toward providing for [alimony] and divorce, regardless of the fault of the parties.” The court’s final conclusion was that “fault is no longer a consideration in assessing [alimony] obligations between [spouses].”
Therefore, instead of looking at adultery and other kinds of marital misconduct, family court judges are limited to consideration of specific factors when making decisions about alimony, including:
There’s just one other limitation on how the court can decide alimony, but it’s a big one. Alimony orders, as well as the final property division, have to be “just and equitable.” This means that the judge has to be fair and reasonable, and has to take into account all the key facts, including:
If you have questions about alimony and adultery in Hawaii, please contact an experienced family law attorney for help.
For self-help purposes, you can look at the self-help section of the Hawaii State Judiciary site and at the official court forms. You can also browse the Legal Aid Society of Hawaii site for resources and assistance designed to help low-income Hawaii residents with legal problems. Finally, you can review the Hawaii Revised Statutes to read the laws for yourself.