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Legalease
Legalease, Lawyer
Category: Family Law
Satisfied Customers: 14619
Experience:  13 years experience, divorce & custody issues, protective orders, child abuse issues
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I need information about my rights as a women regarding divorce.

Customer Question

I need information about my rights as a women regarding divorce. My husband has sprung a demand for a divorce on me by sending me papers he filled on the internet with divorce writer.com.

I need to know what the laws and the process is in Maui hawaii
Submitted: 2 years ago.
Category: Family Law
Expert:  Legalease replied 2 years ago.

Hello there.

-

Have these papers been stamped by the local county family court? He must file them in court before you are served with the paperwork and then he is not supposed to send them to you himself (he is supposed to have an unrelated third party - preferably a SHeriff or constable serve them on you) - unless he is seeking your signature on all of this paperwork and then it would be a two party consent divorce (you both consent to it). So, can you describe the papers a bit more (or even attach them to the next response box so I can take a look at them?).

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How long have you been married? How long separated?

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Do you have any minor children?

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Do you own any property together or have assets such as pension, 401k that could be potential marital property?

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Anything you can tell me will help.

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-

MARY

Customer: replied 2 years ago.

Hello Mary


 


The papers have not been filed they are papers he printed off the internet and asked me to sign. I do not want a divorce and this is a very sudden unexpected action form him.


 


We have had an extremely stressful year. Starting with and abortion in February, a tax audit in march, we bought a house together in july and his and which was his best friend besides me died last month. It have been very stressful and a lot of change and loss have happened this year.


 


We have been married for 6 years together for 10 years, we are not separated he just decided this over night and was asking for a signature from me 12 hours later.


We have no children,


We have 3 cars together,


We own this house together equally, both on title.


No pension no savings no joint accounts.


 


He said in his haste that he would not leave me high and dry and that I could have the house he would sign it over to me and pay the mortgage for a year and that I could have all the cars.


 


The papers that came yesterday say something completely different


 


The papers that arrived yesterday Priority express from divorsewriter.com


 


They are not dated, stamped, signed, no judges name, no case number XXXXX have not yet been filed.


 


My husband has been off island working in Oahu for a week and should be gone another week.


 


I am looking how to attaché the papers and I will scan them.


 


In the papers he says he will provide no alimony he gets the VW and I get the Jeep and That I will sign the house over to him.


 


I dod not want the divorce and if it does happen I do not want to leave my house I feel backed against the wall in fear that I will be forced out of my home.


 


he is basically the soul supporter and has been for most of our marriage.


I am underemployed now making very little and have no savings.


 


I am feeling very terrified.


 


Michelle


 

Expert:  Legalease replied 2 years ago.

Hello again Michelle --

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I can explain the entire process for you step by step and give suggestions or I can wait until you post the paperwork in a response box. Your preference? (If I give you a step by step of the process and then your situation, it will take me a good half hour to type it up because it will be lengthy and I type slowly -- I just want to let you know that so you do not get impatient with me for an answer -- it will be posted tonight because I know you are anxious for some information).

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Can you tell me if there is any equity in the house (is it worth more than the mortgage)?

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MARY

Customer: replied 2 years ago.

Hi Mary


 


Step by Step would be best for me.


 


I dod not see where to upload the papers and I would really like to know the step by step process, again I do not want this and am very surprised at the extreme measure from my husband.


 


He is asking for an uncontested divorse.


 


the paperwork is In the Family Court of the second Circit Sate of Hawaii


Affidavit of Plaintiff..


 


appearance and waiver


Divorce Decree


Complaint for Divorce


Matrimonial action information


He has date of separation 11/23/2012 we are not sepertated, he just left for 2 weeks but we reside in the same house.


asset and debt statement Summons to answer complaint


request for an non-hearing uncontested divorce


 


If you can guide me where to upload the papers I will scan and send it is a lot to scan and send.


 


I think step by step is best


 


The house was just purchased the mortgage is $438,770 and we only but $15,000 down no asset.


 


I have to go out in about a half an hour, so I will not be back at the computer/email until tonight.


 


Mahalo


 


Michelle


 


 


 


 

Expert:  Legalease replied 2 years ago.

Hello again

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I do not know how to walk you through the process to upload the paperwork - you would have to contact customer service if there is a problem (there is a way to attach docs scanned into your computer though). However, it sounds like a standard uncontested divorce package that he sent to you because he is hoping that you will agree to it all. Let me simply walk you through the process in an answer and then you can see if you still have questions on the paperwork. I have to take a short break and then when I come back I will write up and post the answer for you so you will be able to read it when you return.

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MARY

Customer: replied 2 years ago.

thank you

Expert:  Legalease replied 2 years ago.
Okay -- watch for the response when you return. Do not reply to this last message as your reply will put the question thread back on the board and someone else might jumpin. MARY
Expert:  Legalease replied 2 years ago.

Hello again Michelle --

-

In most states, there are 2 types of divorce that can be filed - the traditional "fault" grounds for divorce (adultery, abandonement, etc) or a "No Fault" divorce where the parties do not place blame on each other. In Hawaii, the legislature has done away with all of the "fault" grounds for divorce and ALL divorce cases must be filed as "No Fault" divorces -- and the court will entertain a "No Fault" divorce in Hawaii if the following occurs or has occurred:

(1) The marriage is irretrievably broken;

(2) The parties have lived separate and apart under a decree of separation from bed and board entered by any court of competent jurisdiction, the term of separation has expired, and no reconciliation has been effected;
(3) The parties have lived separate and apart for a period of two years or more under a decree of separate maintenance entered by any court of competent jurisdiction, and no reconciliation has been effected; or

(4) The parties have lived separate and apart for a continuous period of two years or more immediately preceding the application, there is no reasonable likelihood that cohabitation will be resumed, and the court is satisfied that, in the particular circumstances of the case, it would not be harsh and oppressive to the defendant or contrary to the public interest to a divorce on this ground on the complaint of the plaintiff. (Hawaii Statutes - Title 580 - Chapters: 41).

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As you can see from the statute, most of the No Fault requirements force the couple to live apart on a separate maintenance agreement for two years prior to the divorce and if they have not sorted out the relationship by that time, then the court will grant the divorce to the requesting party. However, the first requirement that the marriage has Irretreviably Broken Down can be used by a couple who agree on that to get an immediate divorce within about 6 months without going through the separation period required by the other parts of the statute.

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How this works in your case is that he sent you this paperwork because he wants you to agree to an uncontested divorce -- where you both sign the paperwork and present it to the court and claim that the marriage is Irretrievably Broken Down -- so that he does not have to be separated for 2 years and wait to see if the two of you can reconcile. That is what we call an uncontested divorce. You do not have to sign this paperwork or agree to anything. If you choose not to do so, then his option is to complete the paperwork himself and file it with the court and ask for a hearing date on the matter which you must appear at (if you do not appear the court will default you and could grant the divorce anyway). You tell the court that you do not believe that the marriage is irretreviably broken down and then the burden is on him to show that it is and his feelings will not change. At this point, the judge will decide whether to grant the divorce based upon his testimony OR make the both of you wait the two year separation agreement period (just a word to the warning here -- the courts are shying away from making the party who requests the divorce wait and will generally grant the divorce if the party who wants the divorce swears under oath that there is no way to save the marriage and they do not want to be married any longer). But, there is no reason that you should cave into his request for an uncontested divorce just because he may win a contested divorce a few months later -- you have a right to request that the court grant the 2 year separation period first.

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Once you get past whether you are divorcing or not and when, then you would have to negotiate a settlement agreement with him. The court wants the parties to come to this agreement between themselves but if it cannot be done then the matter will be heard at a hearing by the judge and the judge will make a decision from there. Hawaii is an "equitable distribution" state meaning that each is entitled to 50% of any property acquired during the marriage (that is why I asked you if there is any equity in the house -- he has no right to ask you to sign it over to him if there is any equity because you are entitled to half of the equity -- even if it is only a few thousand dollars). His argument is going to be that you will not be able to afford the mortgage after the divorce and he will be able to afford the mortgage -- and that is a valid argument to the court. However, you are permitted to ask the court to award spousal support to assist you in paying for the house during the time that you are living there.

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Spousal support might be awarded in this case for a few years if you have been dependant upon him and have given up your own job/career to stay with him and near him. You see, there are a number of factors that a court will consider to order spousal support -- and the length of the marriage is one of those factors -- the court usually likes to see a marriage of 10 years or more for any kind of long term support and if the marriage is under 10 years, then the court may, in its discretion, award spousal support for any length of time but will usually look at awarding it for 2-3 years (around half the length of the marriage) if you can show that you need to get training or go back to college to get back on your feet after the divorce. In addition to the length of the marriage, the court can consider all relevant factors -- here is the exact Hawaii statute on the matter of what the court considers in awarding spousal support:

-

"In addition to any other relevant factors considered, the court, in ordering spousal support and maintenance, shall consider the following factors: (A) Financial resources of the parties; (B) Ability of the party seeking support and maintenance to meet his or her needs independently; (C) Length of the marriage; (D) Standard of living established during the marriage; (E) Age of the parties; (F) Physical and emotional condition of the parties; (G) Usual occupation of the parties during the marriage; (H) Vocational skills and employability of the party seeking support and maintenance; (I) Needs of the parties; (J) Custodial and child support responsibilities; (K) Ability of the party from whom support and maintenance is sought to meet his or her own needs while meeting the needs of the party seeking support and maintenance; (L) Other factors which measure the financial condition in which the parties will be left as the result of the action under which the determination of maintenance is made; and (M) Probable duration of the need of the party seeking support and maintenance. The court may order support and maintenance to a party for an indefinite or temporary period. (Hawaii Statutes - Title 580 - Chapters: 47)"

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So, as you can see by the statute, you will have to show your need for the support along with a few other factors that the court can consider - but typically on a marriage of 6 years you are looking at a few years of support. At that point, once the support is set to end, if you have become disabled and can no longer work you can apply to the court to extend the spousal support -- disability usually being the only reason that a court would extend for any length of time. If there is no disability, then even if you are receiving spousal support for a few years and living in the house, you may not be able to afford to live there anymore after the spousal support ends and the court will keep that in mind when deciding whether to let him buy you out of the house or whether to order the sale of the house if he is unable to refinance the house and actually buy you out of whatever equity is available at that time. What stinks with the Hawaii divorce laws is that there is nothing in the statutes about the court taking into consideration the fault of one party over the other -- such as if one spouse were cheating on the other. Most states are explicit in their statutes that state a judge CAN consider such things -- in Hawaii the statute talks about all "relevant" factors - so you or your attorney should bring up any wrongdoing when discussing support but it will be entirely up to the judge whether to hear such testimony or not.

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Regarding the personal possessions such as furniture and autos, the court would expect that the two of you will handle those matters in your written divorce agreement so that there will be no issues down the line on who owns what -- even if it means that you or he must purchase some of the personal possession items from the other in the course of the divorce.

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So, other than child support which does not concern you, that is what you are looking at in a nutshell -- you can refuse to participate in an uncontested divorce and that would force him to file on his own and then you can contest it at that point and see if perhaps you might be able to salvage it with a separation agreement and some time apart. Just send the papers back to him and tell him you do not want a divorce and you are not agreeing to it (it sounds like his suggested settlement agreement awards him the house and does not award you support and you should refuse that -- the settlement agreement is to be a two sided negotiated document and if you cannot agree then the court will decide it for you).

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In the meantime after you kick this back to him you can continue to try to find an attorney to represent you at a reduced cost or free -- if legal aid cannot help right now (they may if he moves out and does not provide you with enough support so you should look into them again if that happens) -- you should also try the local county or city bar associations and ask for a referral to any attorneys that could handle a divorce for a reduced fee -- sometimes the bar has their own programs separate from legal aid and they may be able to help you with getting representation.

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Please let me know if you have further questions. If not, can you please press the 3rd, 4th or 5th smile face below so I will be paid for my time? I am paid NOTHING unless you press the 3rd, 4th or 5th smile face below (I do not receive a paycheck and this is not a hobby for me -- it is how I earn a living so I DO appreciate it).

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THANK YOU VERY MUCH !!

-

MARY

Legalease, Lawyer
Category: Family Law
Satisfied Customers: 14619
Experience: 13 years experience, divorce & custody issues, protective orders, child abuse issues
Legalease and 6 other Family Law Specialists are ready to help you
Expert:  Legalease replied 2 years ago.

Hello again Michelle --

-

Is there anything else I can answer for you? If not, can you please press the 3rd, 4th or 5th smile face below so I will be paid for my time? This will not cost you any additional money and I am paid NOTHING unless you press the 3rd, 4th or 5th smile face below (I do not receive a paycheck -- I am paid per question rated by the customer - and this is not a hobby for me, it is how I earn a living). I wish I could have given you fantastic news on this -- I realize it was so-so -- but I DID do the research and gave you a lengthy answer and it is pursuant to HI law so I would really appreciate it if you would press a postiive rating below so I will be paid for my time ( you can ask follow up questions even after you do so). THANK YOU VERY MUCH

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-MARY

Customer: replied 2 years ago.

the information was complete incorrect.


I have had to seek out a local lawyer and have been told all the information provided to me was totally incorrect.


 


 

Expert:  Legalease replied 2 years ago.

Michelle -

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I am sorry that you feel this way. Unless there is something crazy or unexpected in the papers your ex served to you that I would have been better off seeing, I think that the attorney you spoke may be trying to get money from you or simply cannot believe that you can find good information on line (we have run into many local lawyers who feel threatened by our website and we have no intention of taking over their functions -- we give some information and refer to local attorneys). Everything that I told you was based upon HI statutes -- both the divorce law itself in Hawaii and the statute regarding spousal support (I pasted those sections right from the statutes) and in consultation with Hawaii colleagues and no situation is 100% guaranteed (please refer to the prior answer with the statutes listed therein) but in a short term marriage there is no guarantee of spousal support (you cannot even get social security on your husbands earnings unless you are married 10 years or more and that is why all of the states use the 10 year mark as the spot where a marriage becomes "long term") . I was absolutely truthful with you in these matters and I will also tell you that we get hundreds of questions every week about divorce attorneys running up legal fees -- to the tune of $10,000 or $20,000 for what otherwise seems like a simple case that started out costing a few thousand dollars. And many people who drop their attorneys and end up handling the court case themselves because they can no longer afford their attorneys. You may want to speak with a few more attorneys regarding this matter because you will find a range of opinions regarding what your husband can do and what your chances are at spousal support because that is ultimately up to a judge to decide based upon the statute that is written out word for word above and your individual situation. You can certainly contact customer service for a refund, but I hope that you will let me know what happens (of the people who have returned to the website to let me know what happens in their cases, I have had some ask me if I am psychic because I was so accurate -- divorce cases are a little squishier because of the many ways in which a judge can interpret the statute (which can be easier on you or harder on you than the judge in the next courtroom) and I have assisted many people for several years straight through their cases -- not in replacement of their attorneys but in supplement to them -- like on a weekend when you cannot get an answer or in the middle of the night when you cannot sleep).

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I wish you the best of everything and I do hope that this works out for you.

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MARY

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