Marital assets that may be included in division of assets in the event of a divorce can be anything that has a dollar value such as:
- Bank accounts
- Savings accounts
- Securities (stocks, bonds, mutual funds, etc.)
- A home or other real property
- Vehicles
- Business interests
- Life insurance policies with a cash value
- Retirement accounts or pensions
- Personal property such as furniture, tools and other household effects
Conversely, debts that may be included are anything with a negative dollar value such as:
- Car loans
- Mortgages
- Business loans
- Student loans
- Lines of credit
- Credit card debt
Partnership Property is any other property that is not Separate Property (See our blog on What may be Exempt from Marital Assets), which for most couples is all or almost all of the property they own. Every asset and debt owned by one of both spouses that is not Separate Property is included in the Marital Estate, regardless of how or when each party received it. Each spouse receives a credit for the value of any property they owned prior to the marriage and for any property they received solely during the marriage as a gift or inheritance.
Any increase in the value of premarital or gifted/inherited property is divided 50/50. After accounting for the credits each party receives, the rest of the marital assets are divided so that each side receives approximately one-half each.
Regardless of your specific situation, the family law division at PMK, led by Senior Associate Seth Harris, is available to guide you through a seamless division of property.
In the next blog, learn what may be exempt from inclusion in marital assets.
COVID-19 has impacted all aspects of our daily lives, even our court systems. Since the COVID-19 pandemic began, the situation in the First Circuit Family Court has been highly fluid. Here are the latest updates:
Family Court proceedings are conducted from the Kapolei Judiciary Complex and at the Honolulu District Courthouse by Cisco Webex or by telephone. Recently, the First Circuit Court of Hawai’i allowed that some proceedings, such as trials, extended hearings, and settlement conferences, may resume in person with approval of the court.
In the event of an in person-hearing, you will be required to follow all safety protocol such as entering the courthouse no more than 15 minutes before the hearing, wearing a mask, and submitting to a temperature check. You will also be subject to the state of Hawai’i’s quarantine and testing protocol following out of state travel.
Court filings must still be completed either in person at the Honolulu District Court on Alakea Street and Kapolei Judiciary (or other facilities identified by state judiciary) or by mail in ample time for the court to process the documents prior to the trial. Filing window and filing room hours are 7:45 a.m. to 4:15 p.m.
Regardless of your situation, Seth Harris, senior associate at the PMK family law division, can provide an experienced, compassionate counsel to guide you through any family court proceeding.
A divorce judge begins the division of assets process by having each party to identify their individual and joint assets and debts and identify a value for each. The couple can identify the total net value of their assets by adding the total value (either on their own, or with the help of an attorney) and then subtracting any debt. At a trial, the judge will verify the facts based on witnesses and documents.
However, the resulting division is not the end of the discussion. The judge can, for reasons of fundamental fairness, determine that there should be a “deviation” or “adjustment” away from the 50/50 division.
Reasons for a deviation might include:
- One spouse’s credits from premarital or gifted/inherited assets take up most or all of the marital estate (meaning the other spouse would be left with very little or nothing)
- One spouse made improper transfers of marital funds in contemplation of the divorce without informing the other spouse
- One spouse “wasted” assets when they were separate (although there is an extremely high standard to show that actions by one spouse were not inadvertent, negligent or intentional inadequacies, failures and wrongdoings, financial or otherwise)
- One spouse has no, or very limited, future employment prospects after divorce
- One spouse failed to disclose substantive financial information during the divorce process
- One spouse filed for bankruptcy to gain a financial advantage during the divorce
Some arguments that are not recognized as valid reasons for deviation from the 50/50 division include:
- The spouses operated their finances as if they were not married
- One spouse alone purchased an asset following the filing of divorce physical separation
- A short marriage
- A marriage in which one or both spouses were unhappy
Regardless of your specific situation, the family law division at PMK, led by Senior Associate Seth Harris, is available to guide you through a seamless division of property.
When it comes to division of assets during a divorce, the state of Hawaii does not apply a fixed rule for determining the amount of property to be awarded to each spouse. Instead of a mandatory equal division, Hawaii applies a much different approach.
The Family Court applies the concept of the marriage as a business, also known as Marital Partnership principles, in which each spouse is an equal partner and the property is divided justly and equitably between the two spouses.
Hawaii judges are not bound to follow a fixed rule in regard to property division. Instead, the Hawaii Family Courts begin with a starting point based on Partnership Principles, and then allows some adjustment based on the facts presented. Although there is a certain degree of uniformity, stability, and clarity in the judges’ decision-making, the results can vary based on how the law is applied to each case and on each judge’s belief in what is fair.
Regardless of your specific situation, the family law division at PMK, led by Senior Associate Seth Harris, is available to guide you through a seamless division of property.
In the next blog, learn how the Hawaii Family Court divides a former couple’s assets and debts.
In the course of a divorce or paternity case, each parent’s responsibilities and right to time with the children can become very complicated. In order to better understand the circumstances of a family, a judge may decide to order a custody evaluation through the assistance of a third-party expert to determine what custody arrangement is in the best interest of the children.
Through the custody evaluation process, this expert evaluates the circumstances for the child or children involved and recommend a custody and timesharing arrangement. This process can address a variety of issues as well, such as a request by one parent to relocate the children away from Hawaii; the impact of domestic violence; alcohol or drug use or abuse; or one parent’s actions to deny access or alienate the other parent from the children.
There are two types of third-party experts, child custody evaluators and fact finders:
- The state of Hawaii has a list of Family Court-approved licensed, trained custody evaluators, most of whom are psychologists or psychiatrists. To qualify for the list, they usually have a higher level of formal education and training than fact finders.
- A fact finder is also a trained professional, such as a social worker or attorney, with extensive experience in handling child-related custody disputes.
In order to have a fact finder appointed to perform a custody evaluation, the individual must be agreed upon by both parties and approved by a judge. However, a judge can appoint a custody evaluator without the agreement of one or both parties. Fact finders are usually less expensive and have more schedule availability than custody evaluators, but this varies with the individual experts.
Which to choose depends on how difficult the custody case is. More complicated cases are more likely to require a licensed child custody evaluator. At any time prior to a trial, either party can request a fact finder or a custody evaluator, but the judge has the final authority to determine if one is appropriate.
The entire custody evaluation process usually takes at least six to eight weeks. Once the judge orders a custody evaluation, the third-party expert will begin the evaluation. Their tasks may include: reviewing relevant documents; performing home visits if possible; meeting with each parent to discuss their proposed custody and timesharing preference; and contacting other adults who are significant in the life of the children, such as extended relatives, teachers, pediatricians, therapists, or anyone else that can help them reach a conclusion.
Upon completion of the evaluation, the third-party will provide a written recommendation to the judge in the form of a comprehensive report and, if requested, will testify in a hearing in support of their findings. The expert’s recommendation is not binding on the judge. However, it is unusual for a family court judge to choose not to follow a third-party expert’s recommendations. Once the report is issued, if the parties can come to a settlement, the process will end. If not, the case will proceed to trial where the judge will make a final decision.
As you undertake the custody evaluation process, Seth Harris, senior associate of the PMK family law division, can help you decide whether to employ a third-party expert and which type will best fit your needs.
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