Divorce
Can Be Difficult for By:
Bradley Coates The good news is that Asian folks who remain
in their traditional homelands have a significantly lower incidence of
divorce compared to the half of all marriages that end in divorce here in
the United States. The bad news is that the divorce rate for Asians who
live here (especially those who are married to non-Asians) has increased
to levels that far exceed traditional Asian homeland rates, perhaps
because there is far less societal stigma attached to divorce in America
than in Asia. To assist Asians who find themselves part of this increasing
divorce trend, I will point out some key family law principles that apply
to most divorces in Hawaii. The following hypothetical scenario is one
we see quite frequently in our office: While attending the University of
Hawaii as an exchange student, a young Japanese lady meets a seemingly
nice guy. They get married and wife’s parents give the young couple
$50,000 as a wedding present for a house down-payment. They have their
first child when the wife is 25 and in the second year of her conditional
green card. She has learned some English but is still much more
comfortable in her native tongue. Her husband does not encourage her to
enter the job market and she remains a housewife and mother. About seven
years pass. Their house is now worth twice as much as when purchased.
Unfortunately, the couple is having marital problems and divorce is
imminent. The wife’s parents are in shock and denial back in Japan,
because “this just doesn’t happen in our culture.” So, what’s next? If the parties can agree
on all issues, they can get an uncontested divorce. This is by far the
easiest, most economical and “sane” way to handle divorce, and if
handled correctly by a competent and cost-conscious family law attorney,
it can be completed within 2 – 3 months at a cost of $500 - $1,000.
Unfortunately, in light of the inherent disadvantages that the Asian wife
faces in our scenario, the husband is probably in a position to obtain a
lopsided deal. As a wife from another culture, she is unemployed and
bewildered by the complex legal process. Thus, even after negotiating to
try and settle the case, our hypothetical couple still may not be able to
agree on final terms. At this point, one or the other of them will
probably have to proceed further in the family court. So, what is the
smart thing for the wife to do? She should immediately find a competent
Hawaii family law attorney to represent her. Since clear communication
between client and attorney is always so important, the Japanese wife may
want an attorney who can understand her language and explain to her some
of the pertinent legal issues involved in a Hawaiian divorce. A brief
recap of these issues is as follows: Child custody. Under Hawaii law, the court
utilizes the “best interest of the child” test. No gender preference
exists. One of the primary criteria is which parent has been the
“primary caretaker parent.” In our Asian wife scenario, this could
give her an advantage on child custody since she has been the
homemaker/caretaker while the husband has been busy at work. Child support. This is based on a
mathematical formula found in the Hawaii Child Support Guidelines. It
factors in the respective gross monthly incomes of the parents, other
costs related to the child and the specific type of physical custody
arrangement. In our Asian wife scenario, if the wife is awarded custody of
the child, she should be entitled to significant monthly child support
based on the high disparity in incomes. Alimony. This is essentially spousal support
and is based on numerous factors. The “bottom line” is the ability of
the payor to pay alimony and the need of the payee, along with what is
“fair and reasonable” in the particular case. Unlike child support,
which is calculated by a strict and generally rigid mathematical formula,
no such formulas exist for alimony. Instead, it is subject to a judge’s
wide discretion. In our scenario, the wife could be awarded what is termed
“transitional” alimony, to allow her to maintain the standard of
living she had while married until she can transition to her new
circumstances as a single person. If she is returning to college or
vocational school to improve her prospects for future employment, the
judge may award her “rehabilitative” alimony. Due to the complexities that can be involved
in contested cases, the first spouse to consult with a competent Hawaii
family law attorney can gain a distinct advantage by setting the initial
tone on key issues. For an Asian spouse who may at first be at an inherent
disadvantage, this can be crucially important in order to ensure an equal
footing during the divorce process. |