Hawaii Family Law Definitions, A to Z


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Family law definitions

Knowing Hawaii family law definitions is helpful when speaking with Judges, the Family Court staff, family lawyers, and other parties about your family law case, it’s important to be familiar with the terms and ideas. Below are some of the most common family law definitions.

Doi/Luke, Islandlawyers is located in Honolulu, Hawaii, and we have handled countless divorce cases over the last 20 years.  If you have questions not covered here, see our Legal Information page, or give us a call at (808) 593-2199 and schedule a consult – we’ll be happy to speak with you.

 

A

Adultery:  act(s) of infidelity or unfaithfulness to a spouse; not relevant to divorce actions in Hawaii and other no-fault jurisdictions.  May be relevant where spouse committing adultery is in military service, as under the Uniform Code of Military Justice, adultery is a crime.

AICD (Agreement In Contemplation of Divorce):  a form of marital/post-marital agreement — see also AITD and Marital Agreement.

AITD (Agreement Incident To Divorce ):  a form of marital/post-marital agreement — see also AICD and Marital Agreement.

Alimony:  also referred to as “spousal support,” this a payment or series of payments to an ex-spouse as part of a divorce.  If the parties are not married, the Hawaii Court will not award alimony — see palimony.

Annulment:  a legal process which voids a marriage.  Unlike divorce which ends the marriage, annulment essentially declares that in the eyes of the law, the marriage did not exist.  Only granted on a very, very narrow set of grounds; thus very few annulments are granted each year in Hawaii.

Arrears:  in the family law setting, delinquent/overdue payments, typically of child support or alimony.

 

C

Child custody:  relates to authority and care of a child/children in a divorce or paternity matter — consists of two parts, LEGAL custody and PHYSICAL custody.

Child support:  payments typically from one parent to the other for the support of a child or children.

Child Support Enforcement Agency (“CSEA”):  a state agency, under the Hawaii Department of the Attorney General, responsible for collecting and disbursing child support payments.  CSEA also assists parties in modifying current child support orders, and pursuing delinquent child support.  Each state has its own version of CSEA, all of which work in conjunction with the U.S. Office of Child Support Enforcement (“OCSE”).

Child Welfare Services (“CWS”):  a State of Hawaii branch often referred to by their old name of Child Protective Services (“CPS”), directed to maintain child safety.  In cases of alleged child abuse or neglect, CWS is the State entity that will bring the case to Family Court.

Civil union divorce:  a dissolution of a formal civil union recognized by the state.  In Hawaii, involves the same issues and application of law as in a standard divorce.

Common law marriage:  a form of marriage in certain states/jurisdictions, in which the marriage is not solemnized (no ceremony) nor licensed (no marriage license).  In the U.S., only valid in nine states (Alabama, Colorado, Iowa, Kanas, Montana, Rhode Island, South Carolina, Texas, and Utah), and Washington, D.C.  A common law marriage cannot be created in Hawaii (but if a couple validly had a common law marriage recognized in another state, Hawaii can handle the divorce).

Community property:  a system of property designation in a divorce, wherein all assets and debts acquired during the marriage are labeled “community property.”  States that follow community property are:  Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin (Alaska follows community property to some extent — parties may “opt-in” for community property).  Hawaii is not a community property state, but an equitable distribution state (of which the majority of U.S. states are).

CSEA:  see Child Support Enforcement Agency.

Custody Evaluator (“CE”):  a neutral third-party appointed by the Court and parties to conduct a custody investigation.  Such an investigation usually involves interviewing the parties, children, and other persons who can speak about the care of the children, as well as reviewing documents and other evidence relating to the children.  The majority of CEs in Honolulu are now therapists and social workers.  The fees of the CE are paid by one or both of the parties.

Custody Evaluator conference:  the court conference held after a Custody Evaluator has issued their report; usually somewhat informal, and not an evidentiary hearing.

Custody Investigation Unit (“CIU”):  an office within the Family Court, which investigates custody matters.  Parties/cases seeking to utilize the CIU must income qualify — their combined income must fall below certain amounts, depending on family size.

 

D

Divorce:  the legal severing or termination of marriage.

Divorce decree:  a court document, setting forth a divorce between two parties; typically will contain orders regarding the issues between the parties — alimony, child custody/visitation/support, division of assets, division of debts, handling of tax matters, and other issues.

DNA testing:  refers to DNA genetic paternity testing, to confirm whether or not a man is the father of a particular child.  DNA testing no longer requires a blood sample, as they now simply take a cotton swab swipe from the inside of a person’s mouth.  The national DNA labs which test the genetic samples will issue a result stating that the man tested is or is not the father of the child, typically to a 99.9% + reliability.

 

Equitable distribution:   a system of property designation in a divorce, wherein all assets and debts acquired during the marriage are divided “equitably.”  Note that “equitably” is not necessarily the same as “equal” or 50/50.   Contrasted with community property designations; Hawaii is an equitable distribution state.

 

G

Guardian Ad Litem:  a temporary guardian appointed in a legal proceeding to represent the interests of a child or children, typically in a custody proceeding or a child welfare services case.

 

H

Hague Abduction Convention:  reference to “the Hague Abduction Convention” in context of family law refers to the Hague Convention on the Civil Aspects of International Child Abduction.  This is an international treaty which requires signatories (countries that have signed onto the Convention) to cooperate with other countries where a person has kidnapped/abducted a child in violation of the original country’s law.  The Convention seeks to ensure that children in such a situation will be returned to the original country where the court custody order originated.  Most if not all countries of North America, Central America, South America, Europe, and Asia are signatories of the Convention.

 

J

Joint custody: can refer to joint legal custody or joint physical custody.  In the case of joint legal custody, awards both parents an equal say in the legal custody decisions for their child.  Joint physical custody refers to an award that gives both parents equal or roughly equal time with their child.  Example:  one parent could have sole physical custody with the parents having joint legal custody.

 

L

Legal custody:  determines which parent or guardian has decision-making authority over significant decisions — such as major medical decisions, major educational decisions, and major religious decisions, among others.  Also typically over specific issues, such as authorizing a child to obtain a driver’s license, underage work permit, or underage marriage permit.

Linson formula:  a formula used to determine a spouse’s percentage share of the other spouse’s retirement.  Used where the retirement is a defined benefit plan such as a pension, and a fixed dollar amount cannot be calculated immediately.  Named from the Hawaii court case from which the formula was derived, Linson v. Linson, 1 Haw. App. 272, 618 P.2d 748 (1981).

 

M

Marital agreement:  an agreement between a married couple, regarding their respective rights.  Sometimes utilized as a premarital/prenuptial agreement but executed after the parties have already married, or sometimes used a pre-divorce agreement to address how certain issues will be handled in a future divorce.  Sometimes referred to as a Postmarital agreement.

Motion:  a request to a court or judge to make an order or ruling.  See Post-Decree motion and Pre-decree motion.

 

O

OCSE:  see Office of Child Support Enforcement.

OCSH:  see Office of Child Support Hearings.

Office of Child Support Enforcement (“OCSE”): the U.S. federal office under the Department of Justice, which coordinates child support enforcement nationally.

Office of Child Support Hearings (“OCSH”):  in independent office under the Hawaii Department of the Attorney General, responsible for presiding over child support hearings (hearings officers).  Although they are located in the same physical building as CSEA, and the hearings rooms are located adjacent to the CSEA offices, they are independent from the CSEA.

Order for Protection:  the longer-term extension of a Family Court Temporary Restraining Order; put in place at or after a hearing on a TRO.

 

P

PACT Family Visitation Center: facilities run by Parents And Children Together (“PACT”), a non-profit organization, that provide visitation rooms and visitation supervisors to parties restricted to supervised visits.

Palimony:  an award of support to a former non-spouse partner; not recognized in Hawaii.  The term was coined in a famous California case between actor Lee Marvin and his ex-girlfriend Michele Marvin.

Paternity:  legal recognition of a man being the father of a specific child.  If a child is born to a mother who is married, there is a presumption that her husband is the father (has paternity) of the child.

Paternity judgment:  typically the final order issued at an initial paternity proceeding.  The paternity equivalent of a divorce decree, a judgment usually contains orders regarding custody, visitation, child support, and medical insurance requirements.

Paternity testing:  see DNA testing, above.

Physical custody:  determines which parent or guardian with whom a child lives.  If a child lives predominantly with one parent, that parent typically is said to have primary or sole physical custody.  If a child lives equally or relatively equally with both parents sharing time, they are typically said to have joint physical custody.

Post-decree motion:  a motion made to the Family Court after parties have already divorced, usually seeking either modification of a divorce decree, or enforcement of terms in a divorce decree.

Postmarital agreement:  see Marital agreement.

Pre-decree motion:  a motion made to the Family Court during the divorce process, usually involving pressing issues such as child custody/visitation/support, alimony, advancement of attorneys’ fees, and paying of current bills.  Typically, a motion for pre-decree hearing will be the first hearing in a divorce.

Premarital agreement:  an agreement between parties engaged to be married, usually addressing their property rights as to premarital property, gift/inheritance property, increases in value on premarital/gift/inheritance property, as well as potential alimony and probate claims.

Premarital economic partnership: a legal concept in divorces, where the marital partnership is viewed as staring before the actual date of marriage, allowing the Family Court to divide premarital assets created during that time.

Prenuptial agreement:  see Premarital agreement.

 

Q

QDRO:  see Qualified Domestic Relations Order.

Qualified Domestic Relations Order:  a court order that directs a retirement plan as to how to divide a person’s retirement plan pursuant to a divorce.

 

S

Same sex divorce:  a divorce between either a married male couple or a married female couple. Legalized on December 2, 2013, in conjunction with Hawaii’s legalization of same sex marriage on that date.

Separation:  in divorce terms, either the physical moving into different residences by spouses (physical separation), or a court-ordered legal status (legal separation).

Spousal support:   also referred to as “alimony,” this a payment or series of payments to an ex-spouse as part of a divorce.  If the parties are not married, the Hawaii Court will not award spousal support — see palimony.

Stipulation:  an agreement.  Often in Family Court cases, where parties reach an agreement, they will place it in a written stipulated order which not only contains the signatures and agreement of the parties, but the signature of a judge, making it an order of the court.

Supervised visitation:  the most limited type of child visitation (with the exception of no visitation), where the visiting parent’s visit with the child(ren) is supervised or observed by a third party.  Third parties may be family/friends, or professional supervisors (such as the PACT Family Visitation Center, discussed above).

 

T

Temporary Restraining Order (“TRO”):  in family law, an order issued by the court that prohibits a person (defendant/respondent) from contacting the person who requested the order (plaintiff/petitioner).  Family Court restraining orders are only between people who are married (or were previously married), in a dating relationship (or were previously in a dating relationship, or are family members.  They last for up to six months, but are usually replaced at hearing by an Order for Protection, above.

 

U

UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act):  the UCCJEA is a uniform act (a model law for states in the U.S. to adopt) which clarifies how child custody disputes between two different states is resolved.  The UCCJEA was made into law in Hawaii under Hawaii Revised Statutes Chapter 583A.  The UCCJEA succeeded and phased out the older UCCJA.  Every state in the U.S. with the exception of Massachusetts has adopted the UCCJEA.

UIFSA (Uniform Interstate Family Support Act):  the UIFSA is a uniform act (a model law for states in the U.S. to adopt), which facilitates consistency and cooperation between states regarding child support.  Adopted in Hawaii under Hawaii Revised Statutes Chapter 576B.  UIFSA replaced the older URESA (Uniform Reciprocal Enforcement of Support Act).

 

V

VEP petition:  the abbreviation for a Voluntary Establishment of Paternity petition.

Visitation: the right of a non-custodial parent (the parent who did not receive custody) to have contact with their child.

 

Z

Zealous representation:  to represent someone with zeal – having diligence and passion.  This is what you receive from the experienced family lawyers at Doi/Luke, Attorneys at Law

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