Spousal Support and the Marital Standard of Living in Hawai'i Divorces

• Publication year: 2014
• Citation: Vol. 18 No. 09

Spousal Support and the Marital Standard of Living in Hawai'i Divorces

by Thomas E. Crowley III and Stephanie A. Rezents

Contrary to what you might expect, there are no "rules of thumb" for spousal support awards in Hawai'i divorce actions. There are no shortcut answers in any individual case regarding whether one party must pay periodic spousal support to the other, and if so, for how long, and how much. Spousal support awards can vary substantially in both amount and duration. This variance makes it difficult to accurately predict spousal support outcomes, which in turn makes settlement of spousal support issues difficult, and litigation risky. But there are some ways to help reduce the difficulty and risk of resolving spousal support issues in Hawai'i divorces.

There are four discrete parts of a divorce action: (1) the divorce; (2) spousal support; (3) child custody and support; and (4) property division.¹ The amount of child support is set by mandatory guidelines based, for the most part, on the respective incomes of the parents.² Property division is based on the Hawai'i Marital Partnership Model, which, absent valid and relevant considerations, awards each spouse his or her capital contributions, splits the appreciation of those capital contributions 50-50, and divides the remainder of the marital partnership property equally.³ Unlike child support and property division, however, spousal support does not have set formulas or models by which to predict the amount or duration of the award.⁴ Family Court judges are provided a great deal of discretion to determine spousal support, along with a long list of factors to consider, but with little guidance for their application.⁵

This article will address: the four most relevant factual circumstances for determining spousal support; the "marital standard of living" as a key component in all four circumstances; and the use of deviations in property division in favor of the lower-earning spouse in lieu of spousal sup-port.⁶

The factors in determining spousal support

Haw. Rev. Stat. § 580-47(a) provides that, upon granting a divorce, the family court may compel "either party to provide for the support and maintenance of the other party; ... ." § 580-47(a) further provides thirteen factors the family court is required to consider in determining whether to award spousal support:

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 thirteen factors are not ranked in any particular priority, are stated in somewhat general terms, and are unaccompanied by any rules for applying them. Nevertheless, the practitioner should apply the relevant facts to each of the thirteen factors as a helpful analysis for negotiation or trial.

In 1985, the Hawai'i Intermediate Court combined a number of the most relevant statutory factors for determining spousal support, and listed them in sequence as follows:

1. Taking into account the property awarded in the divorce case to the party seeking spousal support, what amount, if any, does he or she need to maintain the standard of living established during the marriage? If there is no need for spousal support, then there is no obligation to pay.
2. Taking into account the income of the party seeking spousal support, or what it should be, and the income producing capability of the property awarded to him or her in the divorce action, what is his or her ability to meet his or her need independently? If the party seeking spousal support can satisfy his or her need independently, then there is no obligation to pay.
3. Taking into account the income of the party from whom spousal support is sought, or what it should be, and the income producing capability of the property awarded to him or her in the divorce action, what is his or her ability to meet his or her own need while meeting the need for spousal support of the party seeking spousal support?
Cassiday v. Cassiday, 6 Haw. App. 207, 215-216 (Haw. Ct. App. 1985).

In 1991, the Hawai'i Intermediate Court added a fourth relevant circumstance to the three-part Cassiday analysis: "[w]hat amount of money does [the payor] need to maintain the standard of living established during the marriage?" Vorfeld v. Vorfeld, 8 Haw. App. 391, 403 (Haw. Ct. App. 1991). Vorfeld thus restated the above relevant circumstances as four factors:

The relevant circumstances are (1) the payee's need (determined by the amount of money needed to maintain the standard of living established during marriage); (2) the payee's ability to meet his or her need without spousal support; (3) the payor's need (again, determined by the amount of money needed to maintain the standard of living established during marriage); and (4) the payor's ability to pay spousal support while meeting his or her own need as well.⁷

By applying each of these four circumstances, the family law practitioner can identify important strengths and weaknesses of a spousal support claim.

The payee's need determined by the marital standard of living

The first circumstance is "the payee's need determined by the amount of money needed to maintain the standard of living established during marriage."

The marital standard of living is a key consideration, because it is the baseline against which spousal support is calculated, and applies to both the payee and the payor. Below are seven tips for addressing the marital standard of living for purposes of spousal support.

First, spousal support needs to be addressed after custody and property division is determined. This is because, in determining an award of the amount of spousal support, the court must take into account custodial responsibilities and the resources of the payee and the payor, including the property apportioned to him or her in the divorce action.⁸ In the words of the Cassiday decision, the court must take into account "the property awarded in the divorce case to the party seeking spousal support."

Second, the marital standard of living is essentially the parties' income (from all sources) minus their expenses (spending) during the relevant time of the marriage. To obtain this all-important information, the Income and Expense and Asset and Debt Statements, which must be filed in Family Court in conjunction with any request for financial or monetary relief,⁹ need to be accurate and complete. The Income and Expense Statement, as its name suggests, lists a party's income and expenses, and requires an explanation in the event there is any savings or deficiency.

Focusing only on the spousal support payee's expenses reported in his or her Income & Expense Statement, however, is not sufficient to determine the payee's reasonable "needs." A spouse's "custom of spending" during the marriage should be balanced against marital income during the marriage. Normally, the principal consideration in determining the amount of periodic spousal support should be the respective incomes of the parties.¹⁰ In other words, spousal support is income-driven: the horse (income) should come before the cart (expenses).

If expenditures exceed income, the shortfall would ordinarily be explained by an accumulation of debt or an invasion of assets reported on the Asset & Debt Statement. If there is no corresponding debt or liquidation of assets to explain the shortfall, then there may be hidden income, meaning income from an undisclosed source.¹¹ HRS § 580-47(a) requires the Court to consider a spouse's concealment of or failure to disclose his income in determining spousal support.¹²

Third, the marital standard of living does not include considerations of fault. The personal conduct of a spouse has no bearing on the determination of the amount of spousal support, except where a spouse conceals or fails to...