5 Reasons to File First in Your Oklahoma Divorce
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Should you file for divorce first? Are there any advantages to filing for divorce before my spouse? These and other issues are addressed below.
Filing for Divorce First in Oklahoma
In any Oklahoma divorce case, one spouse will file their Petition to begin the process. The decision to file your Petition for Divorce should never be taken lightly. However, if your mind is made up and you are going to seek divorce in Oklahoma there may be advantages to being the first party to begin the process.
5 Reasons to be the Oklahoma Spouse to file for Divorce
The following are the five most common benefits to be the party to initiate a divorce in Oklahoma. Each of these reasons should be considered before deciding to file for divorce; however, not all of them will apply to every divorce in Oklahoma.
Going First at Trial
As with almost all civil cases, the vast majority of divorces settle without trial. In Oklahoma civil practice, which applies to divorce in Oklahoma; the party that filed the original Petitioner seeking a divorce gets to present his or her case first at trial. In some circumstances this can give you an advantage at trial. First impression are important in most things in life and that applies at trial in divorce cases as well.
The majority of divorces in Oklahoma are settled between the parties either by agreement or mediation; however, it is good to know, if your divorce case must go to trial you will have the first opportunity to tell your story to the judge or jury with the help of your Oklahoma divorce attorney.
Automatic Temporary Injunctive Relief (“ATIN”)
Oklahoma law imposes mandatory injunctions on both parties to a divorce at the moment the Petition for divorce is filed. The spouse that files the Petition also determines when the Automatic Temporary Injunctions “ATIN” go into effect.
The primary purpose of the automatic injunctions is to stop both spouses from taking actions to hurt the marital estate, divest the other of marital property, affect the children, and the other spouse without agreement between both parties during a very contentious process.
Oklahoma Statute Title 43 Section 110 governs Automatic Temporary Injunctions in Oklahoma divorces and prohibits both spouses from engaging in a large variety of conduct, which may or may not hurt the other party’s interests. In order to take action outside of the injunctions, the spouse would need a court order or agreement by the other party:
Oklahoma Statutes (43 O.S. §110) provide that upon the filing of a Petition for Divorce, Legal Separation, or Annulment, by the Petitioner, or upon service of the Petition and Summons on the Respondent, or upon waiver and acceptance of service by the Respondent, an Automatic Temporary Injunction shall be in effect against both parties until the final decree is entered or the Petition is dismissed, or until further Order of the Court unless:
(a) both parties have signed their names below agreeing to waive these Automatic Temporary Orders; or
(b) within three (3) days after service of this Summons, a party files an objection and requests a hearing with the Court. This Automatic Temporary Injunction shall remain in force until the hearing by the Court.
Either party may apply to the Court for further temporary orders, an expanded temporary injunction, or modification or revocation under 43 O.S. §110(A)(4).
THEREFORE, BOTH YOU AND YOUR SPOUSE ARE RESTRAINED, ENJOINED, AND PROHIBITED FROM THE FOLLOWING:
- Molesting or disturbing the peace of the other party or the child(ren) of the marriage.
- Disrupting or withdrawing any child(ren) of this marriage from an educational facility, program, or day-care where the child(ren) historically have been enrolled.
- Hiding or secreting any child(ren) of this marriage from the other party.
- Removing any child(ren) of this marriage 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.
- Selling, mortgaging, encumbering, transferring, loaning, giving away, concealing or in any way disposing of, without the written consent of the other party or an order of the Court, any marital property, except:
(A) in the usual course of operating a business;
(B) for the purpose of retaining an attorney for the case; or
(C) for the necessities of life.
Each party shall notify the other party of any proposed other expenditures, and shall account to the court for all such expenditures made after this injunction went into effect.
- Intentionally or knowingly damaging or destroying the tangible property of the parties, or either of them, including, but not limited to, any electronically stored materials, electronic communications, social network data, financial records, and document that represents or embodies anything of value.
- Making a 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.
- Withdrawing or borrowing in any manner all or any part of the cash surrender value of life insurance policies on either party or their child(ren).
- Changing or in any manner altering the beneficiary designation on any life insurance policies of either party or any of their children.
- Canceling, altering, or in any manner affecting any casualty, automobile, homeowners’, or health insurance policies insuring the parties' property or persons.
- Opening or diverting mail addressed to the other party.
- Signing or endorsing the other party's name on any negotiable instrument, check, or draft, such as tax refunds, insurance payments, and dividends, or attempting to negotiate any negotiable instruments payable to either party without the personal signature of the other party.
REGARDING INSURANCE, YOU AND YOUR SPOUSE ARE:
- Ordered to maintain and keep in force all presently existing health, property, vehicle, homeowners’, life and other insurance which you are presently carrying on any member of this family unit, or property or vehicle, and to cooperate as necessary in the filing and processing of claims. Any employer provided health insurance currently in existence shall remain in full force and effect for all family members.
REGARDING PRODUCTION OF DOCUMENTS, YOU AND YOUR SPOUSE ARE:
- Unless otherwise agreed upon in writing, Ordered to deliver to the other party within thirty (30) days from the earlier of either the date of service of the summons or the filing of an initial pleading by the respondent, the following documents:
(1) the federal and state income tax returns of each party for the past two (2) years and any nonpublic, limited partnership and privately held corporate returns for any entity in which either party has an interest, together with all supporting documentation for the tax returns, including but not limited to W-2 forms, 1099 forms, K-1 forms, Schedule C and Schedule E. If a return is not completed at the time of disclosure, the parties shall provide the documents necessary to prepare the tax return of the party, to include W-2 forms, 1099 forms, K-1 forms, copies of extension requests and estimated tax payments,
(2) two (2) months of the most recent pay stubs from each employer for whom the party worked,
(3) statements for the past six (6) months for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the minor child or children of the parties,
(4) documentation regarding the cost and nature of available health insurance coverage for the benefit of either party or the minor child or children of the parties,
(5) documentation regarding the cost and nature of employment or educationally related child care expenses incurred for the benefit of the minor child or children of the parties, and
(6) documentation regarding all debts in the name of either party individually or jointly, showing the most recent balance due and payment terms.
If either party is not in possession of a document required pursuant to subparagraph h of paragraph 1 of this subsection or has not been able to obtain the document in a timely fashion, the party shall state in verified writing, under the penalty of perjury, the specific document which is not available, the reasons the document is not available, and what efforts have been made to obtain the document. As more information becomes available, there is a continuing duty to supplement the disclosures.
Any issue not addressed in this intentionally exhaustive list can be addressed by a motion or requests to the family law judge controlling your divorce case.
An uncontested divorce can be settled in ten (10) days in Oklahoma, if no minor children are involved. This clock cannot start until you have filed your Petition for divorce. When minor children are involved at least ninety (90) days must bass prior to a judge finalizing a divorce in Oklahoma.
Dismissal based on Reconciliation
Only the party that files the Petition for divorce can dismiss the case, if you reconcile before your spouse files a counterclaim or answer. Many divorces in Oklahoma are dismissed based on parties reconciling or their desire to attempt reconciliation.
Marriage counseling is a great resource and should be considered, if both parties are willing to participate. Additionally, you as the first to file is in control as to whether the case is dismissed or proceedings, which may be useful in your attempts at reconciliation or saving your marriage.
Finally, initiative can sometimes be to your strategic advantage. Many family law attorneys believe the party that files the Petition has an initial advantage. This point, as is the case for most opinions, can and is hotly contested by attorneys and parties to divorce. However, you will certainly set the tone in your case, if your Petition is read by your family law judge prior to the other side’s claims in your divorce.
Divorce Strategy in Oklahoma
This list of strategic considerations on filing your Petition for divorce before your spouse does not apply to every divorce or every situation. It is important you speak to an experienced family law attorney to know the best course of action for you and your case.
Choose an Experienced Oklahoma Divorce Attorney
Contact Cannon Law Firm in Oklahoma City for legal advice on seeking divorce in Oklahoma. You need a plan before you tell your spouse you are seeking a divorce in Oklahoma. John Cannon is a Fierce Advocate for every client and will use his experience and respected reputation to do everything possible to reach the best possible outcome in your case. John has an outstanding record of reaching the best possible outcome for clients evidenced by receiving the highest possible AVVO rating – 10 (superb). Contact Cannon Law Firm today for a free confidential consultation.