Although it may not seem like it, deciding to divorce may be the easiest decision during the legal process. Divorcing couples need to address child support, child custody, and property division. If there's a discrepancy in income between the spouses, it might be necessary to begin the awkward conversation about spousal support.
Spousal support—sometimes called spousal maintenance—is a court-ordered payment from one (higher-earning) spouse to the other. In the past, spousal support was standard in divorces where the wife worked at home, raising children and handling household chores, and the husband worked outside of the home to support the family. Today, it's common for both spouses to work outside the home, but spousal support may still be available to spouses who need help meeting financial obligations during or after the divorce.
Judges in Hawaii can order temporary, short-term (transitional or rehabilitative), or long-term spousal support. Temporary spousal support is common during the divorce process, and the court may order it to help a lower-earning spouse meet financial needs while the divorce is pending. (Haw. Rev. Stat. § 580-9 (2018).) Temporary support ends after the judge finalizes the divorce and (when appropriate) orders short-term or permanent support.
Short-term transitional support is appropriate in cases where the lower-earning spouse needs help adjusting to a new standard of living after the divorce. Transitional support is very short-term, perhaps as short as six months after the divorce. Rehabilitative short-term support is the most common type of support offered in Hawaii. Rehabilitative support is appropriate when the lower-earning spouse needs financial help while receiving job training or educational credits necessary to acquire employment and eventually become self-supporting. Rehabilitative support lasts for as long as the court believes is necessary for the supported spouse to become employed, and you must submit a plan to the court, explaining how the plan will lead to suitable employment within a specified time period. (Haw. Rev. Stat. § 580-47 (13) (2018).)
Although rare, the court can order long-term support for spouses who are unable to find employment due to advanced age or disability.
Couples that would like to control the type, amount, and duration of spousal support can negotiate a support award, even if it's different than what the court would order.
The court won't order any spousal support until the judge finds that one spouse needs financial assistance and the other can pay it. Once the court agrees that support is necessary, the judge will evaluate the following factors to determine the type, duration, and amount of the award:
Judges have broad discretion when deciding whether to award support and, if so, the type and amount to order. There is no formula for calculating spousal support in Hawaii.
Typically, the paying spouse will pay support in monthly payments. Most courts order the 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 some cases (though rare), if the paying party doesn't have a steady job, but has a large number of assets (annuity, intermittent wages) the court will order a lump-sum payment of support.
Spousal support orders are court orders, and non-payment will result in potential contempt of court charges. The penalties for contempt may include fines, liens on personal and real property, and even jail time.
Couples can agree that neither spouse will ask for a modification of spousal support. However, unless you've agreed in writing, either spouse can ask the court to review the order later. Before the court reviews the order, the requesting spouse must submit an affidavit explaining that there is a material change in circumstances (physical, financial, or otherwise) since the last order. (Haw. Rev. Stat. § 580-47 (13) (d) (2018).) If the court finds 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. 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. (Haw. Rev. Stat. § 580-57 (2018).)
If you finalized your divorce on or before December 31, 2018, tax law dictates that the spouse receiving support must report the income, and the paying spouse may deduct payments for tax purposes.
However, recent changes to the Tax Cuts and Jobs Act have eliminated both reporting requirements, which impacts spousal support awards for divorces finalized on or after January 1, 2019. The changes to the tax law are significant, and couples should discuss these changes before creating a spousal support award.
For example, imagine that the paying spouse earns $100,000 per year and pays $20,000 per year in support. Before the tax changes, the paying spouse would claim $20,000 as a tax-deduction (thus reducing taxable income to $80,000 per year), and the recipient would report an additional $20,000 in annual income and pay taxes on the support.
Couples filing for divorce today would lose the tax-deduction and reporting requirements, so the paying spouse must claim $100,000 as annual income (despite only having $80,000 available), and the recipient reports only employment or other income (not the $20,000 in support.)
If you're unsure how the tax changes affect you, you should contact an experienced family law attorney before negotiating alimony.