Adultery in Hawaii: Does Cheating Affect Divorce?

Adultery can cause a marriage to become an emotional nightmare, and it's a common cause of divorce. When you're ending your marriage because one (or both of you) has cheated on the other, it's possible that the adultery will impact the outcome of your divorce, including any potential award of alimony. Every state's alimony laws are different; here's a breakdown of how Hawaii's alimony laws address adultery.

An Overview of Alimony in Hawaii

Divorce can cause financial turmoil and reveal hard truths about each spouse's post-divorce financial prospects. Often, one spouse will be in a better position than the other, with, for example, a higher-paying job, a more promising career path, or access to more assets.

The courts attempt to balance these financial inequities by ordering the spouse who is more financially sound to pay alimony (referred to as "spousal support and maintenance" in Hawaii) to the other. The main goals of alimony are to ensure that both spouses can provide for their own needs and have enough money to maintain (as nearly as possible) the standard of living they had during the marriage.

In Hawaii, courts can order alimony for an indefinite period of time or a limited period. Often, Hawaii courts order alimony to continue until the spouse receiving support becomes gainfully employed and financially self-reliant. By limiting alimony in this way, the court is accounting for the fact that the spouse who is receiving alimony might need to obtain further education or training to learn the skills necessary to compete in the current job market. This type of support is sometimes referred to as "rehabilitative alimony."

How Hawaii Courts Determine Alimony

Alimony is by no means automatic in a Hawaii divorce. Whether alimony is awarded and, if so, in what amount and for how long, is a decision that is based on the unique facts of each case.

First, the court must decide whether it is fair to order one spouse to pay alimony to the other. (Haw. Rev. Stat. § 580-47(a) (2021).) To make that decision, a judge evaluates:

• the strength of each spouse's case
• the relative abilities of the spouses to independently support themselves
• how the divorce will affect each spouse's financial situation
• the relative burden each spouse will face due to custody of any children
• whether the spouse failed to disclose income or an asset
• whether either spouse violated a restraining order, and
• all the other circumstances of the case.

Second, if the judge determines alimony is appropriate, it will decide the amount by considering:

• the spouses' financial resources
• the ability of the spouse seeking alimony to independently meet that spouse's needs
• the length of the marriage
• the standard of living established during the marriage
• the spouses' ages
• the physical and emotional condition of each spouse
• how the spouses were employed or spent their days during the marriage
• the vocational skills and employability of the spouse seeking alimony
• the needs of each spouse
• each spouse's child custody and child support responsibilities (if any)
• the ability of the spouse who would be paying alimony to meet that spouse's own needs while simultaneously providing for the needs of the other spouse
• other factors which might affect each spouse's financial condition as a result of the divorce
• how long the spouse seeking alimony will likely need the support, and
• any other relevant factors.

(Haw. Rev. Stat. § 580-47(a) (2021).)

Does Committing Adultery in Hawaii Affect Whether the Court Will Grant a Divorce?

Hawaii is a "no-fault" divorce state. This means that in order to obtain a divorce, it doesn't matter who's to blame for the failure of the marriage—adultery doesn't play a role in determining whether or not a judge grants a divorce.

In order to obtain a divorce in Hawaii, the court needs to find only that the marriage is "irretrievably broken" (meaning it can't be salvaged). The court can also grant a divorce when:

• the spouses have lived separately for a continuous period of two years or more immediately before they file for divorce
• there's no reasonable likelihood the spouses will resume living together as husband and wife, and
• the court is satisfied that it wouldn't be harsh and oppressive to the non-filing spouse, or contrary to the public interest, to grant the divorce.

(Haw. Rev. Stat. § 580-41 (2021).)

As an aside, not all states are like Hawaii. Courts in states with "fault-based" divorce laws consider marital misconduct—such as physical or mental abuse, fraud, and adultery—when deciding whether to grant a divorce petition.

Does Adultery Affect Alimony in Hawaii?

A spouse's infidelity has no effect on whether a court will award alimony in a Hawaii divorce case. Hawaii judges cannot consider adultery—or any other kind of marital misconduct—when they're assessing the need for 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 approach 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]."

Does Adultery Affect Custody or Child Support in Hawaii?

In most Hawaii divorce cases, the fact that a spouse has cheated does not affect custody or child support. However, it's important to remember that when it comes to custody matters, judges must prioritize the best interests of the children. So when a parent's adulterous behavior compromises a child's health or safety, it could certainly affect a judge's custody decision. For example, if a parent leaves a young child unattended because that parent is off having an extra-marital affair, it's likely a judge would be less inclined to entrust the child's well-being to that parent.

When it comes to child support, Hawaii child support guidelines advise that the amount of time a child spends with a parent who is obligated to pay child support can factor into a calculation of the support amount. As a rule, the more time a parent has with a child, the less child support the parent will have to pay, because they're already spending money on the child during parenting time. If the court denies or significantly limits parenting time because of a parent's adulterous behavior, the offending parent will likely be paying more money for support.