Frequently Asked Questions About Oklahoma Divorces
I. GENERAL DIVORCE QUESTIONS
A. Who can file for a divorce in Oklahoma?
Unless you are a resident of a United States army post or military reservation within the State of Oklahoma, you or your spouse must have been an actual resident, in good faith, of the State of Oklahoma for six (6) months in order to file for divorce in this State.
B. If I Meet the Residency Requirements, Where in Oklahoma Can I File For Divorce?
If you meet the residency requirements (lived in the State of Oklahoma for six (6) months), then you can file a divorce in any Oklahoma county wherein you have been a resident for thirty (30) days immediately preceding the filing of the divorce petition.
C. Can I Still Get a Divorce in Oklahoma If My Spouse Has Left the State?
The short answer is “yes.” There are some exceptions, but generally speaking, an Oklahoma divorce court can exercise jurisdiction over a nonresident who lived within Oklahoma in a marital or parental relationship or both.
D. Does Everyone Have to Agree to Get a Divorce and/or Does Someone Have to Be at Fault in Order for a Divorce to Be Granted in Oklahoma?
Oklahoma is a “no fault” divorce state. What this generally means is that either party has the right to end the legal relationship upon demand and without regard to the preference of the other spouse. Although a party seeking a divorce can still allege a basis for the divorce, such as “adultery” or “abandonment” or other things, most people now simply allege “irreconcilable differences” which essentially means that they can no longer get along as husband and wife and therefore seek a divorce.
E. Will I Have to Take a Class or Wait a Certain Period of Time to Get Divorced?
If you do not have minor children, then there is no waiting period to obtain a divorce in Oklahoma. However, absent an agreement with your spouse, even a divorce without minor children can take significant time to complete. However, if there are minor children, Oklahoma law requires a ninety (90) day waiting period between the date the divorce petition is filed and the final decree. In addition, most counties within Oklahoma require parents of minor children to attend a parenting class before a divorce can be completed. There are exceptions to both the ninety (90) day requirement and
parenting classes in some instances such as abandonment for one (1) year, extreme cruelty, habitual drunkenness, imprisonment, etc.
F. What Do I File to Start a Divorce?
A divorce in Oklahoma is commenced with the filing of a Petition for Divorce or Petition for Dissolution of Marriage. The party filing the lawsuit is called the “Petitioner” and the party responding to the lawsuit is called the “Respondent.” Once filed, the Petition must
usually be personally served upon the Respondent who will then have, with some exceptions, twenty (20) days to file a responsive pleading called an “Answer.” Personal service can be avoided if your spouse will sign an Entry of Appearance and Waiver which basically acknowledges receipt of the petition and agrees to waive service of
G. Can I Change My Name?
Yes. When a dissolution of marriage is granted in Oklahoma, the decree shall restore the wife to her maiden or former name, if her name was changed as a result of the marriage and if she so desires; and/or the husband to his former name, if his name was changed as a result of the marriage and if he so desires.
II. THE AUTOMATIC TEMPORARY INJUNCTION
Upon the filing of a divorce and upon personal service of the petition and summons on the respondent, or upon waiver and acceptance of service by the respondent, an automatic temporary injunction become in effect against both parties. The injunction includes some or all of the following:
a. a provision restraining the parties from transferring, encumbering, concealing, or in any way disposing of, without the written consent of the other party or an order of the court, any marital property;
b. a provision restraining the parties from destroying or damaging property and electronically stored communications and materials;
c. a provision restraining the parties from making any withdrawal for any purpose from any retirement, profit-sharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account;
d. a provision restraining the parties from withdrawing or borrowing in any manner all or any part of the cash surrender value of any life insurance policies on either party or their children;
e. a provision restraining the parties from changing or in any manner altering the beneficiary designation on any life insurance policies on the life of either party or any of their children;
f. a provision restraining the parties from canceling or altering casualty, automobile, or health insurance policies insuring the parties’ property or persons;
g. a provision restraining the parties from opening or diverting mail addressed to the other party;
h. a provision restraining the parties from signing or endorsing the other party’s name on any negotiable instrument, check, or draft, such as tax refunds, insurance payments, and dividends, etc;
i. a provision requiring the parties to maintain all presently existing health, property, life and other insurance;
j. a provision enjoining both parties from molesting or disturbing the peace of the other party or of the children to the marriage;
k. a provision restraining both parties from disrupting or withdrawing their children from an educational facility and programs where the children historically have been enrolled, or day care;
l. a provision restraining both parties from hiding or secreting their children from the other party; and
m. a provision restraining both parties from removing the minor children of the parties, if any, beyond the jurisdiction of the State of Oklahoma, acting directly or in concert with others, except for vacations of two (2) weeks or less duration, without the prior written consent of the other party, which shall not be unreasonably withheld. In addition to these provisions, there are additional provisions that require the production of documents and information within thirty (30) days of service of the petition. If you filed or have been served an Oklahoma divorce petition, then you need to seek legal representation so that you can ensure your compliance with not only the Automatic Temporary Injunction, but also the other laws which apply to you.
III. THE TEMPORARY ORDER AND TEMPORARY ORDER PERIOD
A. How Long Will it Take to Complete Your Divorce?
The period of time it takes to complete a divorce depends on a lot of different factors. Some factor include such things as whether the divorce includes minor children, whether the parties have agreed to the terms of the divorce, whether there are assets which are difficult to value, whether there are marital businesses to value, where the particular divorce was filed, and the number of cases on the court’s docket ahead of you. Depending on these factors, you could be waiting weeks, months or even over a year to complete your divorce.
B. What Happens from the date of the filing of the divorce petition until the divorce is completed?
After a petition is filed, either party may request that the court issued a temporary order regarding child custody, support or visitation, spousal maintenance or support, the payment of debts, the possession of property, the payment of attorney’s fees and/or other relief. To obtain a temporary order, your attorney will need to file an application with the court and set it for hearing. At the hearing, your attorney will instruct the court on the facts and request the temporary orders applicable to your case. In addition, you will likely be asked to testify. Importantly, the temporary order remains in place from the date it is entered until the date the divorce is final, i.e., the date the final decree
C. Who Has Custody During the Temporary Order Period?
The court will enter a temporary order for the custody of any minor children. The State of Oklahoma encourages minor children to have frequent and continuing contact with parents who have the ability to act in the best interests of their children. Therefore, a court will provide substantially equal access to the minor children to both parents at the temporary order hearing unless the court finds that shared parenting would be detrimental to a child.
IV. DIVISION OF ASSETS AND LIABILITIES
A. What is “Marital” Property?
Generally speaking, marital property is property acquired during the marriage. This includes both real and personal property regardless of how it is titled. Property acquired during a marriage is presumed to be marital property.
B. What is “Separate” Property?
Separate property includes property owned by one spouse prior to the marriage which retains its separate character and status during the marriage because it is maintained in an uncommingled state. The identity of separate property can only be lost if it is commingled with marital property. Commingling occurs only if separate property is so confused, blended or commingled with community property that its identity is lost and the entire mass becomes community property, unless the community component is comparatively small. In addition to property acquired prior to the marriage, separate property can include property received by way of gift or inheritance during the marriage. Also, separate property includes property acquired during the marriage with the use of separate funds.
C. Will the Court Divide Marital Property and How?
The court must divide the marital property between the parties as may appear just and reasonable, by making a division of the property in kind or by awarding the property to one party and requiring the other party to be paid such sum as may be just and proper to effect a fair division. A trial court has wide latitude in determining what part of jointlyacquired property shall be awarded to each party. However, all property acquired during marriage by the joint industry of the husband and wife must be fairly and equitably divided by the trial court. If the trial court’s division of property is shown to be an abuse of discretion or clearly contrary to the weight of the evidence, such division is subject to appellate review and modification.
D. How Will the Court Value the Marital Property?
A trial court also has discretion to choose the method for valuing marital property and to choose the value given to that property.In addition, a trial court has wide discretion to set a reasonable temporal point for valuing each marital asset, but the cutoff date must be tailored to suit the circumstances of each case. However, the court’s decision must be overturned if it is contrary to the law or against the clear weight of the evidence. In those instances where the trial court abuses its discretion, the Appellate Court may generally render the judgment that the trial court should have rendered.
E. Is Joint Tenancy Property Marital or Separate In Oklahoma?
The creation of a joint tenancy establishes a present estate in which both joint tenants are seized of the whole. While that fact might suggest that property held in joint tenancy is always marital, this is not true. Instead, the controlling question in determining the presence of a joint tenancy is the intention of the parties. If the record shows that title was passed without intent to invest the spousal grantee with an interest in the property, but rather for a purpose that is clearly collateral to any intended change in the existing ownership regime, the conveying marital partner will not be deemed to have made an unconditional, presently effective interspousal gift of separate property. Once evidence is presented showing a lack of donative intent, the burden then shifts to the donee (grantee) spouse to prove the factum of a gift in praesenti. Therefore, the fact that property is titled jointly does not always mean that it is joint marital property. In fact, it may very well remain one spouse’s separate property.
F. Is My Business Marital Property?
There are many instances wherein one or both parties own a business. If the business was created during the marriage or increased in value during the marriage due to marital
effort, then all or a portion of the business may be considered marital property that is subject to valuation and division by the Court. If you and/or your spouse own a business and you are divorcing, it is imperative that you seek legal counsel to discuss the applicable law.
G. Will I Lose My Retirement?
Like other assets acquired during the marriage, a retirement is subject to valuation and division as marital property. Importantly, even a retirement that was commenced prior to marriage, but that increases in value during the marriage as a result of marital effort may be subject to division in whole or in part. Importantly, a passive increase in value of a premarital retirement should remain your separate property while an increase due to marital effort will likely be considered marital property subject to division. It is imperative that you hire an attorney that knows the difference and understands the proper method to value and divide retirements in an divorce.
H. Once Entered, Can a Property Award by Modified?
No. Unlike custody, child support and/or support alimony, a property division award is not subject to modification. Of course, however, an aggrieved party can file a timely appeal of a property award if he/she chooses to do so. Otherwise, however, there are very limited exceptions to this rule such as very narrow instances wherein a party can prove that a particular type of
V. CHILD CUSTODY AND VISITATION
A. What is Joint Custody and What is Sole Custody?
Joint custody or joint care means the sharing by parents in all or some of the aspects of physical and legal care, custody and control. On the other hand, sole custody is just what it sounds like – one parent is awarded the physical and/or legal care, custody and control of the
B. What is Legal Versus Physical Custody?
Legal custody essentially boils down to the ability to make decisions for the child. So, for example, parents awarded joint legal custody are allowed to work together to make decisions affecting the best interests of the child such as educational decisions, medical decisions, etc., while sole custody means one parent makes these decisions without input from the other parent. On the other hand, physical custody means the parent who provides care for a child on a daily basis. Therefore, a court will oftentimes award “primary physical custody” to one parent, who shall provide the care from day to day, and “visitation” to the other parent, who shall be allowed to exercise days
B. Will the Court Award Joint Custody?
Maybe. The State of Oklahoma encourages minor children to have frequent and continuing contact with parents who have the ability to act in the best interests of their children. When determining what custody to award, Oklahoma courts are required to determine the “best
interest” of the child or children. Factors used to determine this “best interest” are many and you need an experienced attorney to navigate you through the legal and factual issues involved in a custody case.
C. Does the Preference of Our Child Matter?
Yes. In any action for custody, including a divorce, a court can consider the preferences of a child when determining the custody and/or visitation to be entered. The court shall first determine whether the best interest of the child will be served by allowing the child to express a preference as to which parent should have custody or limits to or periods of visitation with either parent. If the court so finds, then the child may express such preference or give other testimony. There is a rebuttable presumption that a child who is twelve (12) years of age or older is of a sufficient age to form an intelligent preference. If the child is of a sufficient age to form an intelligent preference, the court shall consider the expression of preference or other testimony of the child in determining custody or limits to or periods of visitation.
D. Can Custody Be Modified Once it is Entered?
Yes. Oftentimes things change following an initial child custody determination in a divorce. If substantial changes occur, then a parent can and often does request a modification of the custody order. The parent asking for modification of custody must establish: (1) a
permanent, substantial and material change in circumstances; (2) the change in circumstances must adversely affect the best interests of the child; and, (3) the temporal, moral and mental welfare of the child would be better off if custody is changed.
VI. CHILD SUPPORT ISSUES
A. Will My Spouse or I Be Required to Pay Child Support?
In every divorce with minor children in Oklahoma, the court must make provisions for the care and support of a minor child. In Oklahoma, with limited exceptions, child support is determined using the Oklahoma Child Support Guidelines. Those Guidelines assume that all families incur certain childrearing expenses. To compute child support, the Guidelines use the gross incomes of the parties. In addition, the Guidelines take into consideration other factors such as the number of overnight visitation each parent is awarded, the cost of health insurance, etc.
B. Can the Court Deviate from the Oklahoma Child Support Guidelines?
In limited situations, a court can deviate from the child support set forth in the Oklahoma Child Support Guidelines. Generally speaking, the district or administrative court may deviate from the amount of child support indicated by the child support guidelines if the deviation is in the best interests of the child, and the amount of support so indicated is unjust or inappropriate under the circumstances, the parties are represented by counsel and have agreed to a different disposition, or one party is represented by counsel and the deviation benefits the unrepresented party.
C. Once Entered, Can My Child Support be Modified?
Yes. Child support can be modified upon a showing of a material change in circumstances. The most common change is a significant increase or decrease in a parent’s income. Other factors can include a change in the physical custody of the minor child, one child “aging out” and no longer needing support, etc.
D. Can I Enforce a Child Support Order If He/She Fails to
Yes. A party entitled to the receipt of child support can enforce the child support order using such mechanisms a contempt of court and/or a judgment and/or a lien. Importantly, past due child support payments incur a significant amount of interest which is specially set by statute. If you are owed child support, seek legal advice to assist in collection and if you are ordered to pay child support, you should do so in the amount ordered unless or until the order is terminated or
V. SUPPORT ALIMONY
A. What is Support Alimony and What is it for?
Oklahoma courts can award support alimony. Support alimony, also called spousal support or maintenance, is a needsbased concept where one spouse pays the other spouse an amount to help the lower wage earning spouse transition into being self supporting. In order for support alimony to be awarded in Oklahoma, the party requesting the support has the burden to show: (a) that he/she has a need that arose out of the marriage; and (2) that the payor spouse has the “ability to pay.” Importantly, unlike child support which is based on gross incomes, the determination of whether support alimony will be paid is based on net
B. Can Support Alimony be Terminated or Modified?
Yes. Once awarded, alimony can be modified upon a showing of a change in conditions which would show that the recipient no longer has the need and/or that the payor no longer has the ability to pay the support alimony. Importantly, this modification can only occur so long as there remains an active support alimony payment and order. Moreover, by statute, voluntary cohabitation and/or remarriage will terminate support alimony as a matter of law, However, some of these rules can be modified by agreement.
C. Can I Receive Temporary Spousal Support During the Temporary Order Period
Yes. A party can request temporary spousal support at the time of the temporary order hearing. If entered, that temporary support shall remain in effect until the final decree unless it terminates earlier according to the specific order of the court.
VI. ATTORNEY’S FEES AND COSTS
A. Will I Have to Pay His/her Attorney’s Fees and Costs?
It depends. Generally speaking, each side is required to pay his/her own attorney’s fees and costs in a divorce. However, a court has discretionary, equitable power to award reasonable attorney’s fees and costs against or in favor of the divorcing or divorced spouse as may
be just and proper under the circumstances. Factors courts generally consider include the outcome of the action, the reason for the action, each party’s behavior with regard to welfare of their children, whether either party unnecessarily complicated or delayed the proceedings or made the litigation more vexatious than it needed to be, and the means
and property of the parties.
B. Can a Court Award Me Suit Money or Fees So I Can Get
Yes. As a part of the temporary order, a party can request and a court can award suit money. However, depending on the particular court or judge, some courts never seem to award these funds while others do so routinely. Therefore, it is important to retain counsel that understands not only the law, but the propensities of the various courts
GRANDPARENT VISITATION RIGHTS
A. Do I Have Any Rights as a Grandparent?
Yes. Any grandparent of an unmarried minor child may seek and be granted reasonable visitation rights to the child which visitation rights may be independent of either parent of the child if the district court deems it to be in the best interest of the child and there is a showing of parental unfitness, or the grandparent has rebutted, by clear and convincing evidence, the presumption that the fit parent is acting in the best interests of the child by showing that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent of the child, and the intact nuclear family has been disrupted. The applicable statute provides a list of conditions used to prove that the intact nuclear family has been disrupted.