2011 Hawaii Code
580. Annulment, Divorce, and Separation
§580-47 Support orders; division of property.

HI Rev Stat § 580-47 (2011 through Reg Sess) What's This?

§580-47 Support orders; division of property. (a) Upon granting a divorce, or thereafter if, in addition to the powers granted in subsections (c) and (d), jurisdiction of those matters is reserved under the decree by agreement of both parties or by order of court after finding that good cause exists, the court may make any further orders as shall appear just and equitable (1) compelling the parties or either of them to provide for the support, maintenance, and education of the children of the parties; (2) compelling either party to provide for the support and maintenance of the other party; (3) finally dividing and distributing the estate of the parties, real, personal, or mixed, whether community, joint, or separate; and (4) allocating, as between the parties, the responsibility for the payment of the debts of the parties whether community, joint, or separate, and the attorney's fees, costs, and expenses incurred by each party by reason of the divorce. In making these further orders, the court shall take into consideration: the respective merits of the parties, the relative abilities of the parties, the condition in which each party will be left by the divorce, the burdens imposed upon either party for the benefit of the children of the parties, the concealment of or failure to disclose income or an asset, or violation of a restraining order issued under section 580-10(a) or (b), if any, by either party, and all other circumstances of the case. In establishing the amounts of child support, the court shall use the guidelines established under section 576D-7. Provision may be made for the support, maintenance, and education of an adult or minor child and for the support, maintenance, and education of an incompetent adult child whether or not the petition is made before or after the child has attained the age of majority. In those cases where child support payments are to continue due to the adult child's pursuance of education, the agency, three months prior to the adult child's nineteenth birthday, shall send notice by regular mail to the adult child and the custodial parent that prospective child support will be suspended unless proof is provided by the custodial parent or adult child to the child support enforcement agency, prior to the child's nineteenth birthday, that the child is presently enrolled as a full-time student in school or has been accepted into and plans to attend as a full-time student for the next semester a post-high school university, college, or vocational school. If the custodial parent or adult child fails to do so, prospective child support payments may be automatically suspended by the child support enforcement agency, hearings officer, or court upon the child reaching the age of nineteen years. In addition, if applicable, the agency, hearings officer, or court may issue an order terminating existing assignments against the responsible parent's income and income assignment orders.

In addition to any other relevant factors considered, the court, in ordering spousal support and maintenance, shall consider the following factors:

(1) Financial resources of the parties;

(2) Ability of the party seeking support and maintenance to meet his or her needs independently;

(3) Duration of the marriage;

(4) Standard of living established during the marriage;

(5) Age of the parties;

(6) Physical and emotional condition of the parties;

(7) Usual occupation of the parties during the marriage;

(8) Vocational skills and employability of the party seeking support and maintenance;

(9) Needs of the parties;

(10) Custodial and child support responsibilities;

(11) 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;

(12) 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

(13) 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 period or until further order of the court; provided that in the event the court determines that support and maintenance shall be ordered for a specific duration wholly or partly based on competent evidence as to the amount of time which will be required for the party seeking support and maintenance to secure adequate training, education, skills, or other qualifications necessary to qualify for appropriate employment, whether intended to qualify the party for a new occupation, update or expand existing qualification, or otherwise enable or enhance the employability of the party, the court shall order support and maintenance for a period sufficient to allow completion of the training, education, skills, or other activity, and shall allow, in addition, sufficient time for the party to secure appropriate employment.

(b) An order as to the custody, management, and division of property and as to the payment of debts and the attorney's fees, costs and expenses incurred in the divorce shall be final and conclusive as to both parties subject only to appeal as in civil cases. The court shall at all times, including during the pendency of any appeal, have the power to grant any and all orders that may be necessary to protect and provide for the support and maintenance of the parties and any children of the parties to secure justice, to compel either party to advance reasonable amounts for the expenses of the appeal including attorney's fees to be incurred by the other party, and to amend and revise such orders from time to time.

(c) No order entered under the authority of subsection (a) or entered thereafter revising so much of such an order as provides for the support, maintenance, and education of the children of the parties shall impair the power of the court from time to time to revise its orders providing for the support, maintenance, and education of the children of the parties upon a showing of a change in the circumstances of either party or any child of the parties since the entry of any prior order relating to the support, maintenance, and education. The establishment of the guidelines or the adoption of any modifications made to the guidelines set forth in section 576D-7 may constitute a change in circumstances sufficient to permit review of the support order. A material change of circumstances will be presumed if support as calculated pursuant to the guidelines is either ten per cent greater or less than the support amount in the outstanding support order. The need to provide for the child's health care needs through health insurance or other means shall be a basis for petitioning for a modification of the support order. The most current guidelines shall be used to calculate the amount of the child support obligation.

(d) Upon the motion of either party supported by an affidavit setting forth in particular a material change in the physical or financial circumstances of either party, or upon a showing of other good cause, the moving party, in the discretion of the court, and upon adequate notice to the other party, may be granted a hearing. The fact that the moving party is in default or arrears in the performance of any act or payment of any sums theretofore ordered to be done or paid by the party shall not necessarily constitute a bar to the granting of the hearing. The court, upon such hearing, for good cause shown may amend or revise any order and shall consider all proper circumstances in determining the amount of the allowance, if any, which shall thereafter be ordered.

(e) The responsible parent or the custodial parent shall have a right to petition the family court or the child support enforcement agency not more than once every three years for review and adjustment of the child support order without having to show a change in circumstances. The responsible or custodial parent shall not be precluded from petitioning the family court or the child support enforcement agency for review and adjustment more than once in any three-year period if the second or subsequent request is supported by proof of a substantial or material change of circumstances.

(f) Attorney's fees and costs. The court hearing any motion for orders either revising an order for the custody, support, maintenance, and education of the children of the parties, or an order for the support and maintenance of one party by the other, or a motion for an order to enforce any such order or any order made under subsection (a) of this section, may make such orders requiring either party to pay or contribute to the payment of the attorney's fees, costs, and expenses of the other party relating to such motion and hearing as shall appear just and equitable after consideration of the respective merits of the parties, the relative abilities of the parties, the economic condition of each party at the time of the hearing, the burdens imposed upon either party for the benefit of the children of the parties, the concealment of or failure to disclose income or an asset, or violation of a restraining order issued under section 580-10(a) or (b), if any, by either party, and all other circumstances of the case. [CC 1859, §1328; am L 1903, c 22, §2; RL 1925, §2979; RL 1935, §4475; am L Sp 1941, c 68, §1; RL 1945, §12226; am L 1955, c 77, §1; RL 1955, §324-37; am L 1967, c 76, §5; HRS §580-47; am L 1969, c 221, §§1, 2; am L 1977, c 37, §1; am L 1978, c 77, §2; am L 1983, c 19, §1; am L 1986, c 332, §18; am L 1991, c 216, §4; am L 1992, c 115, §3 and c 212, §3; am L 1995, c 107, §2; am L 1997, c 293, §40 and c 294, §5; am L 2011, c 140, §2]

Cross References

Dower, none in case of divorce, see §533-9.

Law Journals and Reviews

An Essay in Family Law: Property Division, Alimony, Child Support, and Child Custody. 6 UH L. Rev. 381.

Administering Justice or Just Administration: The Hawaii Supreme Court and the Intermediate Court of Appeals. 14 UH L. Rev. 271.

Gussin v. Gussin: Appellate Courts Powerless to Mandate Uniform Starting Points in Divorce Proceedings. 15 UH L. Rev. 423.

Slow-Baked, Flash-Fried, Not to be Devoured: Development of the Partnership Model of Property Division in Hawai i and Beyond. 20 UH L. Rev. 1.

Case Notes

Death of former husband does not preclude appeal by divorced wife where property rights are involved. 10 H. 117, 121.

Amount of alimony rests in sound discretion of trial court and is subject to modification for cogent reasons only. 10 H. 183; 35 H. 382; 41 H. 345. Granting of alimony is ancillary to granting of divorce. 14 H. 152. In estimating amount not necessary to consult tables of mortality and annuities. 14 H. 152. Provisions of statute are broader than "alimony" as known to common law. 13 H. 654. Allowance in gross may be made for wife on decree for adultery of husband. 13 H. 654; 33 H. 690. To wife of leper. 33 H. 268. Alimony in gross: when warranted, computation. 40 H. 644.

No alimony on divorce for desertion by wife. 21 H. 264. Failure to provide is an offense amounting to adultery. 19 H. 326. Jurisdiction, specific property. 31 H. 603. Foreign judgment. 40 H. 397, 416. Habeas corpus, children, divorce pending. 32 H. 731. Contempt. 30 H. 80; 32 H. 567, 604. Allowance to wife of attorney's fees upon appeal. 38 H. 233. Attorney fees. 40 H. 179; 40 H. 315, 324.

Support may be awarded at a date later than the decree. 23 H. 281.

Judge may modify decree respecting alimony upon proper showing. 23 H. 639, 643; 34 H. 237; 39 H. 245. See also on modifying decree. 29 H. 866; 30 H. 652; 31 H. 574. As to where amount held to be clearly excessive and time too short to pay. 14 H. 152. Settlement agreements, power of divorce judge to modify. 41 H. 89. Child support orders, modification thereof, court's inherent power over welfare of child. 52 H. 480, 478 P.2d 852.

Under L 1955, c 77, court has the power on granting divorce to make property settlements between the parties of all property, real, personal or mixed, howsoever held. 42 H. 279. Division of property: "Respective merits of parties" construed: meritorious claim not established. 44 H. 491, 355 P.2d 188. Decree affirmed when within reasonable discretion of trial court. 49 H. 258, 262, 414 P.2d 82; 49 H. 576, 424 P.2d 671.

Upon granting divorce, court may order party to maintain his former wife and children as beneficiaries under the state retirement system. 52 H. 357, 477 P.2d 620.

In making property settlement, court may order conveyance of real property. 54 H. 60, 502 P.2d 380.

Complex arrangements imposed by court indicate that financial situation was considered. 56 H. 295, 535 P.2d 1109.

Divorce court in one state does not have power to directly affect, by decree, title to real property in another state. 56 H. 295, 535 P.2d 1109.

The express reservation of custody and support questions does not impair the finality of divorce decree. 57 H. 519, 559 P.2d 744.

Division of interests in corporate stock. 58 H. 98, 564 P.2d 1274.

Division of property is discretionary with the trial court and will not be disturbed unless abuse of discretion is clearly shown. 58 H. 227, 566 P.2d 1104.

Division of property, standards for determining. 58 H. 227, 566 P.2d 1104.

Whether interest in pension and retirement benefits is a property interest for purposes of property division depends upon the terms of the obligation securing payment. 58 H. 541, 574 P.2d 125.

Cited as authority for family court to distribute the separate property of the parties. 59 H. 32, 575 P.2d 468.

There is no conflict between this section and §573-1. 59 H. 32, 575 P.2d 468.

Agreement between parties concerning child support, validity of. 59 H. 619, 585 P.2d 1270.

Court's jurisdiction over child support, nature of. 59 H. 619, 585 P.2d 1270.

Court did not abuse its discretion in allowing each party to keep his separate estate where such award is fair under all circumstances. 60 H. 354, 590 P.2d 80.

Alimony for educational purposes. 61 H. 338, 603 P.2d 564.

Distribution of increase in value of separately owned interest in property; within discretion of family court to adjust for inflation in determining value of separate property. 68 H. 383, 716 P.2d 1133.

Effect of premarital agreements in relation to spousal support and property division. 69 H. 497, 748 P.2d 1362.

No presumption that nonowning spouse is not entitled to any part of appreciation of property legally owned by other spouse after declaration by either spouse that marriage has ended. 70 H. 143, 764 P.2d 1237.

Where one of the divorced parties died before division of property, the family court was instructed to divide the property in accord with the premarital agreement, if valid, and enforceable, or effect a property division that is just and equitable. 70 H. 605, 780 P.2d 80.

Uniform starting points, as mandated by intermediate court of appeals, violate section by restricting family courts' discretion in the equitable division and distribution of parties' estates; transmutation of property discussed. 73 H. 470, 836 P.2d 484.

Allowing decree-judgment creditor to enforce collection in circuit court of installment property settlement payments did not usurp family court's exclusive jurisdiction over matters subject to modification by post-divorce decree. 73 H. 566, 836 P.2d 1081.

Family court did not disregard any applicable rules or principles of law and did not improperly rely on uniform starting points in marital estate distribution; court's deviation from equal division of joint property was justified in light of wife's significant separate property holdings. 76 H. 19, 868 P.2d 437.

Intellectual property is capable of division for purposes of equitable distribution. 99 H. 101, 53 P.3d 240.

Trade secrets may be subject to equitable division pursuant to this section, depending upon when the right to the trade secret vested. 99 H. 101, 53 P.3d 240.

Provision entitling receipt of rental payments in lieu of payments for spousal support is not a division of property. 1 H. App. 57, 613 P.2d 363.

Where payer is (1) unemployed or (2) working but earning less than he or she is capable of earning in other fields, court may consider what payer is capable of earning if payer attempts in good faith to secure proper employment. Court may also consider size of payer's estate and net worth. 1 H. App. 187, 616 P.2d 1014.

"Estate of the parties" construed; phrase includes nonvested military retirement benefits. 1 H. App. 272, 618 P.2d 748.

Single lump sum payment, representing plaintiff's interest in defendant's federal civil service retirement, may be awarded rather than a percentage of each monthly payment payable as and when received. 1 H. App. 288, 618 P.2d 754.

Power of family court to set aside its judgments (before court rules). 1 H. App. 315, 619 P.2d 511.

Financial assistance for adult children. 1 H. App. 324, 619 P.2d 112.

The source of an asset such as inheritance or gift, is one of the "circumstances of the case". 1 H. App. 324, 619 P.2d 112.

Where one party unilaterally transfers cash to the children during pendency of the divorce, it is not error for family court to credit the amount of the cash transferred to the party in the division of assets. 1 H. App. 324, 619 P.2d 112.

Foreign judgment; full faith and credit. 1 H. App. 496, 621 P.2d 387.

In reviewing the property settlement entered, the standard of review is whether the court below clearly abused its discretion. 1 H. App. 533, 621 P.2d 984.

Appropriateness of taking into account husband's current economic status, including his remarriage, in determining his obligation to his first family. 1 H. App. 581, 623 P.2d 97.

It was not error to receive evidence that wife was living with an adult male friend who was paying part of the living costs and that they planned to be married. 1 H. App. 595, 623 P.2d 95.

It was within the lower court's allowable discretion to divide the wife's inheritance from the husband's father. 1 H. App. 595, 623 P.2d 95.

Family court's division in the disposition of property will not be set aside unless there has been a manifest abuse of discretion. 1 H. App. 599, 623 P.2d 890.

Award of costs and attorney's fees. 1 H. App. 617, 623 P.2d 1265.

Factors that may be considered in dividing property. 1 H. App. 617, 623 P.2d 1265.

Not error to consider presence of wife's mother and resulting financial impact. 1 H. App. 617, 623 P.2d 1265.

Valuation of partnership. 2 H. App. 485, 634 P.2d 1039.

Division of property is res judicata, and any unfairness in that aspect of case is not relevant to spousal support issue; in support modification hearing, burden is on moving party to provide entitlement to modification; hearing is not a rehearing, but a new hearing based on changed circumstances; party receiving spousal support has duty to attain self-sufficiency and party paying spousal support has duty to maintain ability to pay support, neither may benefit from violation of that duty. 3 H. App. 20, 641 P.2d 1342.

Discretion in dividing property. 3 H. App. 602, 658 P.2d 329; 4 H. App. 68, 660 P.2d 529; 4 H. App. 333, 666 P.2d 617.

Equitable to award each party date of marriage net value of premarital property and date of acquisition net value of gifts and inheritances received during marriage. 3 H. App. 602, 658 P.2d 329.

Distribution of increase in value of separately owned interest in property. 4 H. App. 68, 660 P.2d 529.

Equitable to award each party one-half of net value of property jointly owned at time of divorce. 4 H. App. 68, 660 P.2d 529.

Antenuptial agreement not binding on court. 4 H. App. 333, 666 P.2d 617.

Manifest abuse of discretion in property division. 4 H. App. 652, 672 P.2d 1044.

Division of retirement benefits was equitable. 5 H. App. 55, 677 P.2d 966.

No error in disregarding conveyance of real property by husband to husband and wife as tenants by entirety. 5 H. App. 348, 691 P.2d 771.

If occupancy of residence by mother and children are a combination of spousal and child support, termination of occupancy must be justified as to both spouse and children. 5 H. App. 385, 695 P.2d 1194.

Spousal support payable for indefinite period is subject to further court order. 6 H. App. 66, 708 P.2d 143.

Equitable to award each party one-half of real increase, during marriage, of net value of separately owned property; division of retirement benefits; factors to determine whether spousal support must be paid and the length and amount of payments. 6 H. App. 207, 716 P.2d 1145.

Categories of net market values for purposes of property division modified. 7 H. App. 11, 740 P.2d 36.

Antenuptial agreement binding if equitable; inequitable antenuptial agreement only one of factors considered regarding property division or spousal support; Hawaii's public policy as reflected in this section, takes precedence over parties' right to enforce their antenuptial agreement; no abuse of discretion in court's refusal to enforce antenuptial agreement. 7 H. App. 155, 747 P.2d 698.

Inequitable antenuptial agreement only one of factors to be considered regarding property division; property division terms of antenuptial agreement held inequitable when viewed at time of divorce. 7 H. App. 163, 747 P.2d 703.

The family court always has the discretion to award attorney's fees and costs to a party. 7 H. App. 266, 752 P.2d 1079.

"Estate of the parties" means anything of present or prospective value. 7 H. App. 377, 768 P.2d 243.

Three step process in dividing and distributing marital property discussed. 7 H. App. 430, 776 P.2d 418.

Husband's right to receive veterans' and military disability pay cannot be used as the basis to award wife equal cash value in division of property. 7 H. App. 496, 780 P.2d 581.

Cannot be used against a person who has refused to become legally married. 8 H. App. 215, 797 P.2d 74.

Uniform starting point and other uniform categories are only processes for the family courts to consider, courts must still exercise a wide range of choices and equitable discretion when deciding divorce cases. 8 H. App. 415, 807 P.2d 597.

Where record contained insufficient relevant circumstances prior to entry of initial child support order, proof of sufficient relevant circumstances existing at time of modification hearing was conclusive proof of a material change in circumstances. 8 H. App. 437, 809 P.2d 449.

Family court overemphasized marriage and underemphasized relative abilities of parties and condition in which each party would be left by divorce in division and distribution of net market value of marital property; discussion of deviation from applicable uniform starting point, when authorized. 9 H. App. 1, 818 P.2d 277.

Section gave family court discretion to enter conclusion of law regarding payment of attorney's fees and costs. 9 H. App. 184, 828 P.2d 1291.

If all relevant and valid considerations equal, deviation from partnership model not justified. 80 H. 79 (App.), 905 P.2d 54.

Court properly excluded testimony of wife's alleged pecuniary purpose for marrying husband and her TRO against lover where no evidence that alleged premarital intentions or extramarital relationship negatively affected accumulation or preservation of husband's separate property. 80 H. 274 (App.), 909 P.2d 602.

If decree or order finally obtained by offeree after hearing is patently not more favorable as a whole than settlement offer, Hawaii family court rule 68 requires offeree to pay costs, including reasonable attorney fees incurred after making of offer, unless court determines such would be inequitable under this section. 82 H. 539 (App.), 923 P.2d 956.

Adoption of 1988 child support guidelines constituted a change in circumstances sufficient to permit review under subsection (c) of 1983 support order. 87 H. 209 (App.), 953 P.2d 968.

Where child support proceeding commenced when mother filed complaint for divorce, child support enforcement agency's motion for modification of child support payments filed twelve years later was "continuation of proceeding", and, under §580-3.5 and this section, court had continuing jurisdiction over non-Hawaii domiciliary father. 87 H. 209 (App.), 953 P.2d 968.

Where father offered no evidence to support an exceptional circumstance deviation, father failed to overcome presumption that support obligation calculated by using amended child support guidelines was the amount that should be ordered. 87 H. 209 (App.), 953 P.2d 968.

It is within family court's discretion to order custodial parent to pay all or part of interstate transportation expenses incurred by children when visiting noncustodial parent if order can be complied with without decreasing funds reasonably necessary to support children and custodial parent at relevant standard of living. 87 H. 369 (App.), 956 P.2d 1301.

Once it is determined that a divorce decree award obtained by an offeree is patently not more favorable as a whole than a HFCR rule 68 settlement offer, the trial court must determine whether it would be inequitable to award attorney's fees and costs under rule 68 to the offeror, applying the standards of subsection (f). 89 H. 17 (App.), 968 P.2d 184.

Relevant statutes, rules, and precedent did not permit wife to directly attack in circuit court the validity of the property and distribution part of the divorce decree; circuit court did not have subject matter jurisdiction under §603-21.5 to do what wife must have had done to obtain the relief wife sought; pursuant to §580-1 and this section, only the family court could have granted that relief. 101 H. 370 (App.), 68 P.3d 644.

The family court may and should consider regular and consistent monetary gifts received by a spouse as part of the spouse's actual financial resources, condition and ability when determining spousal support; pursuant to subsection (d), if and when husband's parents materially reduce their regular and consistent monetary gifts to husband, husband may allege a material change in circumstance and ask the family court for a review of its orders. 112 H. 437 (App.), 146 P.3d 597.

Where the family court determined that there were valid and relevant considerations authorizing a deviation from the partnership model division, and the family court's extensive findings of fact clearly showed that in dividing and distributing husband and wife's assets and debts, the court took into consideration the conditions each would be left in after their divorce, court did not violate this section. 120 H. 283 (App.), 205 P.3d 548.

An attorney-spouse's contingency fee cases are marital property subject to division; the family court may use the methodology outlined in this case in valuing attorney-husband's unliquidated contingency fee cases that were pending at the date of completion of evidentiary part of trial (DOCOEPOT); in the alternative, if husband had received contingency fees for those cases that were pending at DOCOEPOT, the family court may divide husband's net receivables by using a fractional apportionment based on the time husband put into the case during the marriage and the total amount of time husband expended to effectuate a recovery. 121 H. 401 (App.), 220 P.3d 264.

Family court abused its discretion by omitting husband's escrow commissions from the marital estate and by excluding any commissions receivable by husband on the non-binding condominium reservation agreements where: (1) the escrow commissions constituted "income" earned during the marriage; (2) there was no evidence that husband's existing escrows were for units in projects with financial problems or any other evidence that those escrows might not close, or that husband had to perform any additional duties to receive the escrow commissions; and (3) the commissions were not too speculative to be included in the marital estate. 124 H. 455 (App.), 248 P.3d 221.

Where the marriage itself and the existence of jointly owned property were not the only facts proved, the family court was not required to divide each asset and debt equally, and properly equalized the property based on numerous, undisputed findings of fact regarding the circumstances of the marriage pursuant to this section. 124 H. 455 (App.), 248 P.3d 221.

As subsection (e) gives the custodial or responsible parent the right to seek review or adjustment of the child support order once every three years, without showing a change in circumstances, where wife's 2005 motion was the first request for a modification of the child support award contained in the 1996 decree, wife was not required to show a change in circumstances before the family court was authorized to review the award. 124 H. 488 (App.), 248 P.3d 1219.

Where daughter was legally blind and this disability caused substantial delay in daughter's completion of daughter's high school and college studies, family court could have found that an adult child's physical disability constituted exceptional circumstances resulting in a child support award to that disabled adult child beyond the age of twenty-three. 124 H. 488 (App.), 248 P.3d 1219.

Cited: 14 H. 554, 564; 26 H. 128, 130; 29 H. 464, 470; 44 H. 442, 451, 355 P.2d 33.

Mentioned: 85 H. 108 (App.), 937 P.2d 949.

Hawaii Legal Reporter Citations

Antenuptial agreement reviewable by court. 79 HLR 79-0865.

Property settlement between unmarried couple. 82-1 HLR 820253.

Pre-nuptial agreements. 82-1 HLR 820387.

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