Protecting Separate Property in Hawaii

Hawaii is an equitable distribution state—courts divide property "just and equitably" under HRS § 580-47(a). Hawaii uses a unique Marital Partnership Model with five categories of Net Market Value (NMV). Separate property can be protected—but only if you meet the strict three-part test established in Hussey v. Hussey. Whether you're navigating an uncontested or contested divorce, understanding Hawaii's category system is essential.

Hawaii's Marital Partnership Model

Under Tougas v. Tougas (1994), Hawaii treats marriage like a partnership. Courts use five NMV categories to organize property division:

• Category 1: NMV at date of marriage (DOM) of premarital property → 100% to owner
• Category 2: Increase in Category 1 from DOM to DOCOEPOT → 50/50
• Category 3: NMV at acquisition of gifts/inheritances during marriage → 100% to owner
• Category 4: Increase in Category 3 to DOCOEPOT → 50/50
• Category 5: All remaining property at DOCOEPOT → 50/50

DOCOEPOT (Date of Conclusion of the Evidentiary Part of Trial) is the key valuation date—not separation. Property continues accumulating as marital through trial unless it qualifies as Marital Separate Property (MSP).

The Three-Part MSP Test (Hussey/Kakinami)

Under Hussey v. Hussey (1994) and Kakinami v. Kakinami (2012), gifts and inheritances remain Marital Separate Property (MSP) only if you prove all three elements:

• Expressly classified as separate: Written documentation or titling showing intent to keep separate
• Maintained by itself: Kept in a segregated account or identified separately
• Funded from non-marital sources: All expenses, taxes, and maintenance paid from the asset's own income or other separate funds

If any element fails, the asset becomes Marital Partnership Property (MPP) and falls into Category 3/4—meaning the original value is repaid to you, but appreciation is split 50/50.

The Hamilton Rule: Marital Funds Defeat MSP

In Hamilton v. Hamilton (2016), the Hawaii Supreme Court held that using marital funds to maintain a gift or inheritance destroys MSP status:

• Inheritance taxes: If paid with marital funds, the inheritance becomes MPP
• Property taxes or insurance: Same rule—marital funds contaminate the asset
• The entire asset is affected: Once marital funds maintain it, the whole inheritance is MPP

Critical lesson: If you receive an inheritance, pay all related expenses from the inheritance itself or other documented separate funds.

No Automatic Transmutation by Retitling

Unlike some states, Hawaii does not presume a gift to the marriage simply because you add your spouse to title. Under Markham and related cases:

• No gift presumption: The party claiming a gift must prove donative intent, delivery, and acceptance
• Title changes alone insufficient: Simply adding your spouse doesn't automatically convert separate property
• Still apply categories: Even jointly titled property uses the NMV category analysis

This is different from states like West Virginia where joint titling creates a presumption of gift.

Estimate Your Hawaii Divorce Costs

Property disputes involving NMV category calculations can increase legal costs. Use our calculator to estimate your total expenses:

Valuation Continues Through Trial

Unlike states that use separation date, Hawaii values property at DOCOEPOT:

• Post-separation earnings: Still marital until trial concludes
• Post-separation appreciation: Falls into Categories 2/4/5 and is divided
• No automatic carve-out: Separation alone doesn't end property accumulation

Courts may deviate from the default 50/50 split of Categories 2, 4, and 5 based on HRS § 580-47(a) factors including relative abilities, needs, and "all other circumstances."

Protection Strategies

• Document express classification: Create written records showing intent to keep gifts/inheritances separate
• Maintain in segregated accounts: Never deposit separate property into joint accounts
• Pay expenses from the asset: Taxes, maintenance, and fees must come from the separate asset's own income
• Never use marital funds: Even paying inheritance taxes with marital income destroys MSP status
• Get written agreements: A prenuptial or postnuptial agreement can clearly protect separate property
• Document baseline values: Get appraisals at DOM and at acquisition of gifts/inheritances

Key Takeaways

• Marital Partnership Model: Five NMV categories (Tougas); repay Cat 1/3, split Cat 2/4/5
• MSP requires all three elements: Express classification, separate maintenance, non-marital funding (Hussey/Kakinami)
• Hamilton rule: Marital funds maintaining an inheritance destroys MSP status
• No transmutation presumption: Gift must be proven with intent, delivery, acceptance
• DOCOEPOT valuation: Property accumulates through trial, not separation
• Deviation possible: Courts may adjust from 50/50 based on HRS § 580-47(a) factors

For the complete Hawaii marital property guide and divorce timeline, see our detailed resources. For official forms, visit the Hawaii State Judiciary Divorce Forms.