Just before a wedding is usually a joyous time when most couples are thinking about events such as merging their lives, purchasing a new home, and maybe expanding their family. It is not a time when anyone wants to think about divorce. But practically speaking, if there are certain assets you want to protect in the event of a divorce, you’ll need to think ahead and consider a pre- or post-nuptial agreement.
A prenuptial agreement is a written document executed before a couple gets married that confirms a couple’s agreement to what will happen to their assets and income in the event of a divorce. A postnuptial agreement is essentially the same thing but is executed after the couple marries.
When it comes to the division of assets in the event of a divorce, generally speaking, the state of Hawaii uses what is known as partnership principles, which usually means that each spouse is entitled to 50 percent of the couple’s marital assets and responsible for 50 percent of the couple’s marital debt. However, a pre- or postnuptial agreement can designate property that you want to ensure is excluded from those partnership principles in the event of a divorce. Whoever is awarded specific assets in a prenuptial agreement may also retain any increase in its value incurred from the beginning of the marriage to the time of divorce. Hawaii law does require pre- and post-nuptial agreements to be fair, so they are not so one-sided as to “shock the conscience.”
Pre- and post-nuptial agreements can narrowly tackle other marital issues, such as alimony, but they can never address child custody or visitation. Here are some reasons why you might seek a prenuptial agreement:
- You own a home that you wish to keep in your family.
- You intend to keep a family inheritance that was given exclusively to you along with any increased value that is realized during the marriage.
- If your spouse brings a significant amount of debt to the marriage and you don’t want to be responsible for it.
- If one spouse’s income is significantly higher than the other’s.
- If you are a business owner and wish to avoid division of the business in the event of a divorce.
- If you wish to retain any other asset in your possession (such as a car or a trust fund) in the event of a divorce.
Although discussing and completing a prenuptial agreement can be stressful, it can also provide peace of mind and lessen conflict in the event of a divorce. Seth Harris, a senior associate at the PMK family law division, can represent you through the process of drafting and finalizing a pre- or post-nuptial agreement and provide compassionate, experienced counsel for any other divorce needs. For more information, go to: www.hawaiilegal.com/practice-areas/family-law-2/.
Like most states, Hawaii has laws that prevent any parent from skipping out on court-ordered child support payments as well as a state agency dedicated to enforcing child support payments – the Child Support Enforcement Agency (CSEA).
If one parent is behind in their child support payments, the parent entitled to receive child support can choose to forgo a legal remedy if they come to a mutually agreed-upon arrangement whereby the delinquent parent simply pays up.
A family law attorney can help determine the best remedy, whether for the parent who is owed child support or the parent obligated to pay it. In those cases, the attorney can help negotiate terms to help the noncustodial parent avoid the consequences of formal enforcement measures.
If the parents can’t agree, the Hawaii Child Support Enforcement Agency has several mechanisms it can employ to collect the delinquent funds.
Each CSEA mechanism (except the order for income withholding) usually has a minimum past-due amount that is the trigger of the enforcement mechanism. The parent who is owed past-due child support payments usually needs to make a request for services to be initiated.
Here are the CSEA’s enforcement methods:
Income Withholding: While parties can agree to a direct payment arrangement, if either is concerned about record keeping, the CSEA can receive payment directly from the employer of the noncustodial parent. The CSEA serves the non-custodial parent’s employer an Order or Notice to Withhold Income for Child Support. The employer then begins deducting the child support payments from their employee’s wages or benefits and forwards the amount to the CSEA.
State tax refund setoff: The state tax refund setoff allows CSEA to collect past-due child support payments from the noncustodial parent’s state tax refund.
Administrative offset: Administrative Offset allows CSEA to intercept certain federal payments to collect past-due child support.
Federal tax Refund offset: If past-due child support payments meet certain criteria, the federal tax refunds of the non-custodial parent can be intercepted and sent to the CSEA.
Passport denial: For child support debts greater than $2,500, the State Department can revoke a current passport, deny a future passport, or restrict or limit a current passport.
Financial Institution data match: This program uses information gathered through an agreement between the state and all of the financial institutions conducting business within it to identify accounts belonging to parents who have past due child support payments. The CSEA may then issue liens on the delinquent parent’s accounts.
Credit bureau reporting: CSEA can report information regarding delinquent accounts to any consumer reporting agency.
Liens: The Bureau of Conveyances can issue a lien against real property for a parent who has past-due child support payments or when an order of support for a prior period (arrears order) is established.
License suspension: A noncustodial parent who is delinquent in payment in an amount equal to or greater than three months of child support payments can have his or her driver’s license and/or recreational license(s) suspended. If the parent is delinquent in payment in an amount equal to or greater than six months of payments, his/her professional and/or vocational license can be suspended.
Medical Support Enforcement: CSEA pursues private health care coverage when it is available through a non-custodial parent’s employer at a reasonable cost.
Whether you owe child support or are owed past due payments, Seth Harris, a senior associate at the PMK family law division, can help you figure out the best remedy for your specific situation. For more information, go to: www.hawaiilegal.com/practice-areas/family-law-2/.
Partner R. Laree McGuire was a featured panelist at the July 15th Hawaii Chapter Community Association Institute (CAI) 2021 Legislative Update Webinar. McGuire addressed the content of 11 new laws that were passed by the 2021 Legislative Session and their impact on associations and boards.
PMK sponsored the HUGS Mom’s Night Out on July 7th. The moms were excited to be treated to an evening at the Old Spaghetti Factory. After not being able to gather in person for over a year, they enjoyed being together to support each other and shared lots of laughter. PMK is a proud supporter of HUGS (Help, Understanding & Group Support), a Hawaii nonprofit organization assisting families with seriously ill children.
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