Legal Separation in Hawaii FAQs

There's a Difference Between Divorce and Legal Separation

The divorce process begins when one spouse files a petition (request) for dissolution with the local court. With the help of mediation or counseling, most couples are able to negotiate the terms of custody, property and debt division, and support and memorialize it in a written agreement. If the court approves the proposed arrangement, a judge will sign it and issue a final divorce decree, which terminates the marriage and allows each party to move on and even remarry.

A legal separation is similar to a divorce in that the couple (or judge) decides how to handle the same divorce-related issues and puts the terms in writing. Additionally, like divorce, legally separated couples are free to make contracts, sue or be sued, and buy or sell property as though they are unmarried. The primary difference between the two legal procedures is that at the end of a legal separation, the couple is still legally married.

For Some Couples, Divorce Isn't the Answer

There's no right or wrong way to handle your relationship troubles. Despite the statistics that prove nearly 50% of marriages end in divorce, not all couples want to jump to divorce when the relationship reaches an impasse. Some families choose legal separation over divorce to ensure that the children continue living in a stable and satisfactory home situation. Others pursue separation to maintain health insurance or valuable tax benefits only offered to legally married couples (although it's important to make sure your health insurance will continue to offer benefits after a legal separation).

We're all aware of the impact of social media in today's relationships, so for couples concerned with the stigma that commonly accompanies divorce, a legal separation may be a way to avoid any shame they may feel is connected to divorce. Additionally, it's common for some couples to be at odds with how to handle the relationship, and legal separation may be the perfect compromise for those who can't decide on the best path for the marriage.

Some other reasons for choosing legal separation instead of divorce include:

• using separation as a trial run for a divorce
• utilizing legal separation to avoid violating the rules of your church or religion
• there's still a possibility for reconciliation, or
• a couple desires to live apart, but wants a legal agreement approved by the court to address custody and support matters.

What Does Separation Mean in Hawaii?

In Hawaii, couples looking to become legally separated must follow a process that mimics divorce. To begin, at least one spouse must file a petition for separation with the local court. The application must include relevant information such as your names, addresses, date of the wedding, date of separation, and information about any minor children from the marriage. You must meet the state's residency requirement, meaning at least one spouse must reside in Hawaii for at least three months before filing for separation.

You'll need to give the court a legal reason—or, grounds—for your request. Hawaii is a no-fault divorce state which means the court doesn't require either spouse to point fingers at the other as the reason for the breakup. The same rules apply for a legal separation. You can meet this requirement by telling the court that you and your spouse have irreconcilable differences, meaning you simply can't get along and are unable to reconcile.

Once the court is satisfied that you meet the requirements for legal separation, the judge will create an order that resolves issues involving property and debt division, child custody, and visitation. Additionally, the judge may also order one spouse to pay child support or spousal support to the other. Hawaii refers to a legal separation that includes support orders as separate maintenance.

In some states, legal separation is indefinite, but in Hawaii, couples can only stay legally separated for two years. By the end of the second year, the couple must decide to reconcile or file for divorce. However, either spouse can file for divorce at any time during the separation.

Can We Test the Waters with a Trial Separation?

Yes. Couples who aren't quite sure if they want to pursue a separation or divorce may find it beneficial to take some time apart to reassess their marriage. In a trial separation, which the court doesn't authorize or monitor, couples can negotiate the terms (either verbally or in writing) for their time apart and try living apart from each other. Most couples place a deadline on the trial, after which they can decide to reconcile, separate, or file for divorce.

What Is a Separation Agreement?

We've all seen the court-room shows where one party is suing the other for a breach of contract. We have also watched most judges toss out cases because there was no written proof of the agreement. Legal separations are no different, and a written agreement is essential (and required) in Hawaii.

A separation agreement is a legally binding document created either by the court or the parties. The contract should contain information relating to property and debt division, child custody and visitation, child support, and spousal support. You should also include any additional provisions, like how you will handle future disputes and whether you will share educational or medical costs for the children.

If you and your spouse negotiate the terms together, you can present a proposed agreement to the court. If the judge believes it is fair to both parties, the judge will approve it, and it will become a court order. If you can't agree with your spouse, the judge will draft a judgment for you.

If either party wishes to modify the order later, that spouse will need to file a formal request (petition) with the court. Neither spouse can change it without the other's (or the court's) approval.

Should I Hire an Attorney?

Hawaii law doesn't require you to hire an attorney for a divorce or separation proceeding. With that said, the rules that govern family law are always changing, so it would be beneficial for you to consult an experienced divorce attorney in your area.