FAQ: Family Law In Oklahoma
The law does not require you have an attorney; however, you will be better prepared for every step of the process and you will understand every step in the process with a good family law attorney. Hiring an experienced family law attorney will allow you to face this difficult time with an advocate and someone always on your side to answer your questions and fight for you.
Yes, a common-law marriage is formed when the parties have a meeting of the minds to consent to marriage at the same time. The following are common grounds to demonstrate common law marriage: cohabitation; acting as spouses; recognition by the community as spouses; and the parties’ declaration of being spouses.
Generally, you must be eighteen years old to get married in Oklahoma; however, you may get married at sixteen years of age, if you have the consent of a parent or guardian pursuant to OKLA. STAT. tit. 43 § 3.
Yes, a marriage can be void, if attacked by annulment, while the disability exists pursuant to OKLA. STAT. tit. 43 § 128
Automatic Temporary Injunctions (“ATIN”) are orders that automatically go into effect against both parties to a divorce or legal separation once the following two events occur: 1) filing a petition for dissolution of marriage or legal separation and 2) valid service upon the other party or their waiver of service. Automatic temporary Injunctions protect both parties to a divorce or legal separation from the other party negatively affecting assets or interests of the parties.
Automatic Temporary Injunctions (“ATIN”) restrain the parties from transferring, concealing, or disposing of any marital property, unless written consent is given, except property acted upon in the regular course of business or to retain an attorney for the divorce or legal separation or for the necessity of life. Specifically, the parties to a divorce or legal separation may not do the following upon filing of ATIN:
- Damaging or destroying personal property of the parties or an individual party, including: electronic material, electronic communications, social networks, financial records, or anything else of value;
- Withdrawing any funds from any retirement, pension, or other benefit plan;
- Withdrawing or borrowing from a life insurance account of the parties or their children;
- Changing life insurance benefits, health insurance, or automobile plans;
- Opening or diverting the other party’s mail;
- Signing for the other party without their consent;
- Change or cancel health insurance, life insurance, or property insurance or fail to make claims for any of these benefits;
- Disturb the peace of the other party or children;
- Withdrawing one or all of the party’s children from their daycare, school, or educational facility;
- Hiding or secreting children from the other party;
- Removing the party’s children from the state of Oklahoma for more than two (2) weeks without the prior written consent of the other party;
- Deny the production of necessary papers, such as tax documents, health insurance coverage information, debts, child care information, and other records.
Applications for Temporary Orders in divorce and legal separation cases must state a factual basis for the application, be verified by the party, and state the relief sought.
Yes, either party may seek to change or remove a temporary order or a specific automatic temporary injunction upon that party or their family law attorney showing facts necessary for removal or modification of an order.
Sometimes called alimony without divorce, legal separation is the continuation of marriage with economic separation of the parties, including property division and support alimony. It can be granted for any reason, just as a divorce. The authority for legal separation is found at OKLA. STAT. tit. 43 § 108.
Fault grounds consist of adultery, extreme cruelty, gross neglect of duty, impotence, fraud, and drunkenness pursuant to OKLA. STAT. tit. 43 § 101.
One of the parties of the divorce must have lived in Oklahoma for six (6) months in good faith prior to filing a petition for divorce, in order for the court to exercise jurisdiction, authority, over a divorce in Oklahoma. OKLA. STAT. tit. 43 §102 specifically states: Except as otherwise provided by subsection B of this section, the petitioner or the respondent in an action for divorce or annulment of a marriage must have been an actual resident, in good faith, of the state, for six (6) months immediately preceding the filing of the petition. B. Any person who has been a resident of any United States army post or military reservation within the State of Oklahoma, for six (6) months immediately preceding the filing of the petition, may bring action for divorce or annulment of a marriage or may be sued for divorce or annulment of a marriage.
Yes, the Full Faith and Credit Clause requires the recognition of foreign divorces in Oklahoma.
In the dissolution of marriage in Oklahoma, the divorce decree shall restore the wife her former name, if she desires; each spouse shall have their property restored to them; all marital assets or property will be divided between the spouses; reasonable alimony may be granted; the Court may set apart a portion of the marital estate for the support of the children of the marriage; and other agreements of the parties.
Property acquired during a marriage is presumptively marital property and obtained through the joint efforts of spouses. However, this rebuttable presumption may be overcome with evidence proving the gifts to one spouse or inheritance were kept substantially intact and remain separate property.
Separate property is all property not acquired from the joint efforts of marriage, including property acquired after separation, but prior to a final divorce decree.
Yes, your spouse will receive a portion of your retirement account, unless your spouse waives their marital interest in your retirement account or they receive a buyout for proportionate share.
Future retirement is divided by enter of a Qualified Domestic Relations Order (“QDRO”). The QDRO is a calculation, generally conducted by an attorney separate from your Oklahoma divorce attorney and your spouse’s Oklahoma divorce attorney, who has experience in retirement division. Your chosen Oklahoma family law attorney can assist you in determining the right attorney to handle your QDRO, retirement division.
Yes, pursuant to OKLA. STAT. tit. 43 § 121 and the Uniform Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, a Court can determine military retirement as property of the military member alone or of both the military member of his/her spouse.
The Court is required to enter clear and concise written findings, including the amount given to the spouse consistent with the rank, pay grade, and time of service of the member at the date of filing the divorce petition, unless a more equitable date is determined.
Marital assets are not always split evenly in Oklahoma. Our state is an equitable distribution state, which means the marital assets should be divided fairly. Family law judges in Oklahoma use their discretion to divide marital property, unless you and your family law attorney can reach an agreement with your spouse.
Support alimony in Oklahoma is a “need-based concept, with a purpose of cushioning the economic impact of the post-marriage transition and readjustment to gainful employment.” Janitz v. Janitz, 315 P.3d 410. The Court is tasked with entering a reasonable award.
Multiple factors are considered in alimony determinations, including:
- Demonstrated need during the post-marriage readjustment period;
- The parties’ position in life;
- The length of the marriage and age of the parties;
- Each party’s earning capacity;
- The parties’ health and financial means;
- The standard of living of the parties;
- Parties’ income potential;
- The time necessary to transition to supporting oneself.
Alimony may be paid in property or cash payment, which the Court finds reasonable. It is paid in either one large lump sum or installment payments over a period of time.
Yes, a property award can be replaced by the payment of alimony. One party can maintain property and provide the appropriate amount of support to the other party to make up the value of the marital share in said property.
The Sum Certain Rule for alimony dictates that the award of support alimony must be a definite total sum. It may be set out in payments of a gross sum for installment payments or a lump sum.
Awards for alimony, support, or maintenance are not dischargeable in bankruptcy proceedings in Oklahoma.
Child custody determination is defined under Oklahoma law, OKLA. STAT. tit. 43 § 551-102(3) as a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes permanent child custody, temporary child custody, and orders modifying child custody. It does not cover monetary orders, including child support orders.
No, Oklahoma law mandates at OKLA. STAT. tit. 43 § 112(C)(2) that “there shall be neither a legal preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody
Absolutely not, Oklahoma law prohibits a preference for the custodial parent based on gender pursuant to OKLA. STAT. tit. 43 § 110(C)(3)(a).
Primary jurisdiction rests with the child’s home state. Oklahoma law defines a child’s home state as a state the child has lived with a parent or guardian for at least six (6) consecutive months immediately preceding the child custody case being filed, pursuant to OKLA. STAT. tit. 43 § 551-102(7). The home state of the child has exclusive jurisdiction, authority, to hear custody under Oklahoma law.
Oklahoma uses the significant connection test, which requires substantial evidence concerning the child’s care, protection, training, and personal relationship pursuant to the Oklahoma Court of Civil Appeals case of Wood v. Redwine, 33 P.3d 53. The determination examines the past, present, and future care of the child.
The Court may grant the care, custody, and control of a child to either parent or to the parents jointly, including sole custody, joint custody, or any of multiple variations between joint custody and sole custody.
The parent seeking joint custody shall file their plan for the exercise of joint custody of their child with the Court. Each party may submit separate plans or the parties may submit a joint plan.
Every custody plan must include the following at a minimum: the physical living arrangements of the child; the child support obligation of the parties, the medical and dental care for the child, education plan, and visitation rights of the parents. In addition to the custody plan an affidavit must be attached from each parent stating the parent agrees to abide by the plan. Both the parents’ affidavits as well as the custody plan shall be filed with the petition for divorce with the District Court.
Yes, parties may agree to modify a custody plan or one party may seek a modification from the Court. The plan or modification shall be filed with the Court and shall include the specifically requested changes. However, the Court will not modify the plan unless it is in the best interest of the child.
Yes, the court may terminate a joint custody decree upon the request of one or both parents or when determined to be the best interest of the child by the Court. Additionally, joint custody is not proper when the parents are unable to cooperate in decision-making and other issues concerning children.
The Court will consider multiple factors in deciding custody disputes when domestic violence or other harmful acts are suspected, including: the safety of the child, the well-being of the child, in addition to other factors in determining what is the best course of action.
No, the Court is allowed to consider a child’s preference, if the child is old enough; however, the child’s preference is only a factor in deciding child custody.
Yes, the Court considers the preference of a child old enough to state a preference intelligently. In 2014, the Oklahoma Court of Civil Appeal in Lowry held a twelve-year old child’s preference on which parent to live with had substantial weight as she “had formed, over a significant period of time, a thoughtful, intelligent and well-reasoned preference as delineated by Oklahoma Law.” Lowry v. Lowry, 327 P.3d 230, ¶21. In that case, the court found the reasons supporting the child’s preference as well as preference was sufficient to grant the child’s preference to live with one parent over the other.
A Guardian At Litem is an attorney appointed by the Court either on the Court’s motion or by agreement of the parties in a child custody matter to advocate on behalf of the child. The Guardian At Litem is designated to advocate on behalf of the best interest of the child to the Court and shall not favor one side over the other. The Guardian At Litem has a number of responsibilities to the Court, including the following:
- Review all materials available in the case that is relevant to the best interest of the child, meet with all involved parties, including the child, parents, caregivers, and health care providers to obtain knowledge of the circumstance of the child and relate the same to the Court.
- Advocate for the best interest of the child by attending all hearings in the case and advocating for appropriate services as determined by the Guardian At Litem.
- Monitor and inform the court of the best interests of the child throughout the judicial proceedings.
- Maintain confidentiality of the parties throughout the case as much as feasible.
Under Oklahoma law, a custodial parent has physical custody of a child more than one hundred eighty-two (182) days a year, which is more than half of a calendar year.
Under Oklahoma law, a non-custodial parent has physical custody of a child one hundred eighty-two (182) days a year or less, which is less than half of a calendar year.
Grandparents may be granted visitation rights, if the District Court finds it is in the best interest of the child for grandparents to exercise visitation and there is a showing of parental unfitness or the grandparent can show a parent is not acting in the best interest of the child and would suffer harm without the grandparent being able to exercise visitation pursuant to OKLA. STAT. tit. 43 § 109.4.
The Oklahoma Child Support Guidelines are used in every child support case to determine the correct amount of child support. Further, the District Court in every divorce or custody case has an obligation and duty to determine child support.
There is a rebuttable presumption that the results of applying the Schedule of Basic Child Support Guidelines to the facts and circumstances in every child support case is the correct amount.
Gross income includes earned and passive income from any source, but does not include Temporary Assistance for Needy Families (“TANF”); Supplemental Security Income (“SSI”); Food Stamps; or General Assistance.
Earned income for child support purposes includes: salaries, wages, tips, commissions, bonuses, severance pay, military pay, hostile fire/imminent danger pay, combat pay, and other forms of income from the military.
Passive income is a catch-all outside of earned income. It specifically includes, but is not limited to the following: dividends, pensions, rent, interest income, trust income, support from another action, annuities, social security benefits, workers’ compensation, unemployment insurance benefits, disability insurance benefits, prize money, gambling winnings, lottery winnings, and royalties.
Minimum wage paid for a forty-hour work week or income for the previous three (3) years will be imputed, whichever amount is most equitable will be used for child support calculations pursuant to OKLA. STAT. tit. 43 § 118B(4).
The base child support obligation is the support displayed in the schedule of Basic Child Support Obligations after combining the Adjusted Gross Income “AGI” of both parents and the children for whom support is calculated.
Yes, the Court is required to exclude from gross income child support made or received from other child support orders pursuant to OKLA. STAT. tit. 43 §§ 118E(2) and 188E(5).
Shared parenting time, as defined at OKLA. STAT. tit. 43 § 118E(10), sets a formula outside the standard Child Support Calculation when both parents have physical custody of the child for at least 120 overnights a year.
The Obligor in child support is the parent or person required to make child support payments.
An overnight for child support calculation purposes occurs when the child is in the physical custody of a parent for twelve (12) hours or more and the parent has incurred reasonable expenses for the care of the child.
Yes, you may seek a modification to child support, if there has been a substantial change in your income or the income of the other party in your support action or if a dependent child is no longer supported under the support order.
Yes, the Oklahoma Supreme Court’s decision of Gibbons in 1968 set the standard for modification of child custody in Oklahoma, which still remains the law. There must be a “permanent and material change in circumstances warranting a change of custody.” Gibbons v. Gibbons, 442 P.2d 482.
The Oklahoma Supreme Court held in Daniel v. Daniel, 2001 OK 117, 42 P.3d 863 that joint custody is to be terminated the court must treat its decision as if making the first determination of custody in a case in accordance with the best interest of the child. Specifically, the Court held “In a divorce action, the trial court is vested with discretion in awarding custody and visitation. Nevertheless, the best interests of the child must be a paramount consideration of the trial court when determining custody and visitation.”
Any of the terms of a custody plan can be modified by showing the change is in the best interest of the child pursuant to OKLA. STAT. tit. 43 § 109(F). Additionally, the Oklahoma Court of Civil Appeals in Coget v. Coget, 966 P.2d 816, a case concerning one parent seeking to change physical custody, the Court held “because § 109(F) controls, it was error for the trial court to apply the ‘change in circumstances’ test rather than determining the children’s best interests.” Id. at ¶12.
In order to change a custody order based on a change of circumstances the following three elements must be established: 1) a permanent, substantial and material change in circumstances; 2) the change must adversely affect the best interests of the child; and 3) the change would benefit the temporal, moral and mental welfare of the child. See Daniel v. Daniel, 42 P.3d 863.
The parent seeking to transfer a sole custody order has the burden of proof to show a “substantial change in conditions since the entry of the last custody order”. Further, the change must be detrimental to the child or adversely affect the child in order to warrant a change to the physical custody of the child.
No, a military deployment cannot be used as evidence of the “substantial, material and permanent change of circumstances” that indicates cause for a permanent modification to child custody.
Yes, the court may consider the preference of any child that Court believes to be of sufficient age to form an “intelligent preference”; however the court is not bound by the preference of the child and must decide child custody based on the best interest of the child.
Paternity is legal fatherhood and a paternity suit is the process to establish the legal father to a minor child. In a marriage, the husband is legally presumed to be a child’s father born to his wife during the marriage. However, paternity must be established by an Acknowledgement of Paternity through DHS or by establishing paternity through a court action.
The mother of a child born out of wedlock has custody of the child until a Court determination of paternity.
Under Oklahoma law, fathers do not have legal rights concerning a child until a Court ordered custody determination. Meaning, signing the birth certificate and an admission of paternity is not enough to exercise your rights as a father.
You can file a petitioner for paternity in the appropriate court and bring the mother of the child to court in order to seek court ordered assistance in exercising rights. The entry of a paternity order will also result in a specific schedule of child support, which will allow you to know the amount of support you must provide each month.
There are multiple reasons to establish a guardianship in Oklahoma, including: enrolling a child in school; ensuring proper care for a child: day care, medical care, medical treatment, and/or support of the child; receiving state benefits for the child and ensuring the child is supported.
There are two primary types of guardianship in Oklahoma: guardianship of a child and guardianship of a vulnerable adult.
In order to be appointed a guardian in Oklahoma you or your family law attorney must file the proper paperwork in District Court, set a hearing before the assigned family law judge; and at the hearing request your appointment as guardian for the minor child. Additionally, you must follow the statutory protocol for maintaining a guardianship.
A verified guardianship petition which states the necessary information for the family law judge to consider your guardianship and if appropriate an application for emergency guardianship.
In an emergency ex parte order is sought; the Court will hold a hearing on the same day without the respondent being present and will issue an emergency ex parte order, if the Court finds it necessary to protect the victim from immediate danger of domestic abuse, stalking, or harassment.
The Court may assess attorney fees and court costs against the petitioner that sought a protective order against you, if the Court makes specific findings that the petition was sought frivolously and no victim exists pursuant to OKLA. STAT. tit. 22 § 60.2(C)(2).
Oklahoma Statutes title 12 section 2011.1 defines a frivolous claim as knowingly being asserted in bad faith or without any rational argument based in law or facts to support the petitioner’s claim.
Yes, you may seek a protective order against the party seeking a protective order against you, if you qualify as a victim of domestic abuse, stalking, harassment, or rape and the petition is sought frivolously.
You should file a petition for protective order, if you qualify, prior to the hearing on a protective order sought against you.
Generally, the Judge assigned to hear the protective order in your case will transfer the protective order to the judge hearing your custody, divorce, or other family law case. Additionally, if you have a protective order case pending in one county and a family law, divorce, or custody matter pending in another county, the court should transfer the action pursuant OKLA. STAT. tit. 22 § 60.3(D).
You have due process rights in a protective order proceeding similar to a criminal case. Your chosen family law attorney can assist you in deciding whether or not to testify or remain silent, you may call witnesses and present evidence, you may cross examine witnesses or the petitioner, and you may raises defenses to whether or not the petitioner is a victim or qualifies for one of the grounds for a protective order: domestic abuse, harassment, stalking, or rape.
Violation of a protective order is a criminal offense in Oklahoma. You should hire an experienced criminal defense attorney, if you have been accused, arrested, or charged with violation of a protective order. The punishment for a first time violation is a misdemeanor and carries up to a year in jail and up to a $1,000 fine. Second or subsequent allegations of violating a protective order are felonies and carry up to three years in prison.
Among other things the Court may transfer custody of minor children to the petitioner during the pending protective order. The judge may require you to forfeit possession of your firearms, and your employment may be affected.
There are two types of contempt of court, both occur in family law proceedings: direct contempt and indirect contempt. Direct contempt is disorderly or insolent behavior during court session. Indirect contempt is willful disobedience of court process or any lawful order by the court.
A number of defenses exists to contempt of court in family law, divorce, or custody proceedings, including, but not limited to the following: the violation was not willful, i.e. the child support or alimony payment was not made, because the party is unable to make the payment; the alleged contemptuous act is not in violation of a court order, i.e. the conduct violated an agreement between the parties, but is not part of the divorce decree, custody plan, or a temporary order of the court; the contempt may be purged by correcting the act in contempt of court, i.e. paying back child support or support alimony or returning the property agreed in a divorce decree or temporary order; the defendant is not at fault for the contempt, i.e. defendant’s inability to comply due to factors outside defendant’s control, such as a third party possessing the property that the divorce court’s temporary order required be turned over to the other party; statute of limitations has run on the act in the divorce action, which was contemptuous; or you did not receive proper notice of the contempt in your family law matter or divorce.
The court should not consider issues outside the petition or amended petition for contempt, unless the parties agree to those issues being decided at one time. The Court does not have authority to render judgment in a contempt case, even in a divorce or child custody proceeding without proper notice being provided to the defendant of a contempt action.