How2Day: Hawaii State Laws on Divorce & Abandonment

In family law, abandonment is the act of deliberately leaving one's spouse without consent (or, in many cases, notification) and with no intent to return. While not all states accept abandonment as a ground for divorce, the state of Hawaii does permit divorce petitions on claims of desertion. Hawaii law also grants divorces to spouses of incarcerated inmates on grounds of abandonment under certain circumstances.

Hawaii law defines abandonment as "...the voluntary and intentional act of absconding a marriage [to] avoid marital duties, with or without the intent to create a permanent separation." Hawaii classifies any individual who intentionally abandons his spouse without consent as a "deserting" spouse. The remaining spouse -- called the "present" spouse -- may file an individual action for divorce, without the deserting spouse's knowledge or consent, after 24 months have passed since the date on which the deserting spouse absconded.

Malicious abandonment is the act of deserting a marriage with the intent to deliberately injure or otherwise cause harm to the present spouse in the process. This includes physical, financial or emotional damage. If the present spouse can prove the deserting spouse abandoned her with the intent to cause harm, she may file an individual action after 18 months have elapsed since the date on which the deserting spouse absconded.

Hawaii defines the act of involuntarily abandoning a marriage through imprisonment is as desertion due to incarceration (DDI). While DDI is not necessarily willful, the present spouse may file an individual claim for divorce 24 months after the date on which the deserting spouse was first incarcerated.

Hawaii law holds a person who abandons her spouse with the intent to create a lawful separation -- called "desertion with intent to separate" -- to the same standards as an individual who otherwise intentionally abandons his marriage. However, Hawaii law requires a waiting period of 24 months for claims of both no-fault divorce (where the spouses live separate and apart) and divorce due to abandonment, so it would be more beneficial to both spouses to voluntarily separate if the decision to divorce is mutual.

The deserting spouse's absence from the marriage and/or any children under the age of 16 for three or more consecutive months shall serve as prima facie evidence of desertion and willful neglect. This means that the Hawaii family courts will accept the deserting spouse's abandonment of the marriage, without any additional evidence, as proof of child desertion.

By abandoning both the marriage and the children, the deserting spouse revokes his claim to custody of any minor children born into the marriage. The present spouse receives primary physical custody by default. The deserting spouse can challenge the custody order, but the court will heavily consider the history of abandonment when making a final decision.

Note that the deserting spouse does not automatically revoke his claim to legal custody of any minor children; the present spouse must petition for sole custody to retain sole physical and legal custody.

The custodial parent may file a request for child support from the deserting spouse after demonstrating spousal and child abandonment. If no one can locate the deserting spouse, and a third party has possession of money belonging to the deserting spouse (including a bank holding the spouse's bank accounts), the court can enter an order for the third party to release the full amount of the funds to the custodial parent to cover child support obligations.

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