You take the house; I’ll take the dog!
Like Alan Jackson said in the song Give It Away “There ain’t nothing in this house worth fighting’ over Oh, we’re both tired of fighting’ anyway, Just give it away”, it can be easy for one spouse to decide what they definitely don’t want when it comes to the separation of property.
In any divorce settlement, it’s important to decide what YOU want, before you decide what you’re willing to give up.
Marital Property v. Separate Property
Oklahoma makes a distinction between “Marital Property” and “Separate Property”. Marital property is any property jointly acquired while a couple was married. Separate property encompasses all property acquired by a single party either before or after a marriage. Separate property is not subject to division by divorce court; therefore it is not at issue in a divorce court ordered dividing a couple’s assets.
The term “property” refers to more than just personal items and can include any number of assets. The most common types of marital property include real estate (the marital home), vehicles purchased while married, pets, such as yes “the dog” and retirement accounts maintained by a married couple.
How is Marital Property Divided?
Oklahoma is considered an “Equitable Distribution” state. This means Oklahoma Family Law judges attempt to divide marital property in a fair and reasonable manner, but judges do have wide discretion in determining what is considered separate or marital property during the divorce process.
Multiple Factors are considered by Family trial judges, including the contributions made by each party to the household. Meaning the party making the most money will not necessarily receive the largest share in a division. Once the debts of both parties are accounted for, the portion of either party’s share of the martial property can be reduced to reflect the debts accumulated by each individual.
Even in divorce cases where one party is a homemaker that does not work outside the home; the court will consider the party’s responsibilities to the home as a relevant contribution to accumulated assets. Oklahoma is not a fault divorce state; therefore divorce court judges do not look at the fault of either party, when considering the fair share in property division.
Who gets the House?
For larger items, particularly jointly owned real estate, it’s up to a judge to determine how title to a home will be split. If a judge decides to award the home to one party, the other party may still receive compensation equal the other party’s share of the value of the home in the form of other marital property or alimony. In the event that neither party can afford to stay in a home after the dissolution of marriage, the court may force a sale and divide the proceeds accordingly.
Who gets the Dogs?
The parties can either reach an agreement for division of personal property, including the dog or other family pets; however, if the parties cannot agree then the divorce court judge or a mediator may decide the particulars of dividing individual assets, including “man’s best friend.”
It is important to tell your chosen family law attorney very early in the proceedings of any property item that has significant meaning to you! Your Oklahoma divorce attorney can assist you in forming a plan to keep that asset in the divorce.
Who gets the 401K?
Retirement accounts often account for the largest asset jointly held by either party in a divorce. Family law judges consider retirement benefits earned during marriage to be marital property. A Qualified Domestic Relation Order (“QDRO”) is a Family Law Court Order used to give a portion of either party’s retirement benefit to the other spouse.
The QDRO is a tool in divorce court to ensure your client recieves what they deserve in their spouse’s retirement and their own retirement accounts. The effects and procedures of a QDRO can be incredibly complicated and may vary depending on the terms of a retirement plan and whether an employer is a private company or a government agency. QDRO in military retirement can be exceedingly complicated due to the intricacies of DFAS, FERS, military retirement systems, and Survivor Benefit Plans.
It is important to consult an experienced Oklahoma Family Law attorney when trying to divide assets held in a retirement account.
Parties to a divorce proceeding are free at any time to make their own decisions on the separation of property, but when the court gets involved, it’s important to have a FIERCE ADVOCATE that can help YOU navigate the proceedings and get what you deserve.
Experience matters when your rights and property are on the line. It is important to know the attorney you hire is experienced in family law and property division. CANNON & ASSOCIATES can be your Fierce Advocacy for your family law matters in Oklahoma. Contact CANNON & ASSOCIATES for a free confidential consultation.