Types of Divorce and Alternatives
Alternative Dispute Resolution (ADR)
Oklahoma Child Custody
Child Support in Oklahoma
Asset and Debt Division
- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: No
- Property Distribution: Equitable
Grounds For Divorce
Oklahoma has both fault and no-fault divorce, making the process to end a marriage more complicated than in other states. For a fault divorce, certain grounds need to be proven to the court before a decree is granted. It is more uncommon in Oklahoma for couples to take the route of a fault divorce because of the burden of proof involved as well as the additional time required to reach a conclusion.
A couple can pursue a no-fault divorce citing incompatibility. The grounds for an Oklahoma fault divorce are:
- Cruel treatment
- Habitual drunkenness
- Imprisonment in a state or federal institution
- Impregnation of a wife by a person other than her husband
- Incurable insanity
- Gross neglect
- Fraudulent actions
Divorce Waiting Period
Couples filing for divorce in Oklahoma must have been a resident of the state for six months and have lived in a given county for 30 days. When children have resulted from a marriage, the courts in Oklahoma will enforce a divorce waiting period of 90 days. In uncontested situations not involving children, it’s possible to finalize a divorce within 10 days.
The person asking for the divorce is called the petitioner and the other spouse is the respondent. There are two types of divorce – contested and uncontested.
- Uncontested dissolution of marriage, in which the petitioner and respondent have come to an agreement on all divorce issues such as visitation and property division
- Contested dissolution of marriage, in which the parties disagree with one or more portions of the divorce factors
A contested divorce will take longer to finalize and often requires a court trial. Spouses that are close to reaching a settlement with one another may be able to use mediation to avoid a trial and work through differences. Some of the common reasons a divorce may be contested include:
- The parties disagree on child custody or property allocation
- The respondent doesn’t want a divorce
- The parties disagree on the grounds for divorce
A legal separation can be regarded as one step toward divorce. Filing for legal separation, rather than divorce, can give spouses time to work on the marriage. In Oklahoma, spouses are not bound by the residency and waiting period restrictions that pertain to filing for divorce. A legal separation can be modified at any point as to be a final divorce if either spouse feels that the marriage is past the point of repair.
Like in divorce, spouses come to agreement on all issues, such as child custody, visitation, property division and support payments. In a legal separation, however, the marriage is not terminated and couples are not free to remarry.
An annulment treats a marriage as though it never happened. The court views an annulled marriage as invalid. Oklahoma courts recognize several reasons to invalidate a marriage, such as:
- Underage (not yet 18 and lacking parental consent)
- Fraudulent actions (marrying for a green card)
- Close family relation (incest)
- Already legally married (bigamy)
- Lacking mental capacity (due to drugs, alcohol or mental disability)
There is a time limit on filing for annulment for certain grounds; therefore, consulting with an attorney is a wise decision. Additional reasons to annul a marriage may exist beyond the aforementioned list.
Alternative Dispute Resolution is an effective method to resolve disagreements and arrive at settlements. The goal in ADR is to avoid a costly trial by working with a neutral third party to reach resolutions. Depending on the type of ADR that is chosen, the outcome can be legally binding or nonbinding. In the case of nonbinding ADR, spouses are given recommendations to resolve issues but are not obligated to take the advice given by the mediator.
The benefits to ADR are:
- Issues are resolved in an informal environment.
- The process saves money and time.
- The approach preserves spousal relationships.
- Couples maintain control over the decisions.
Child Custody Determinations
The Oklahoma court system will always rule on what visitation arrangement is in the best interests of the children. The position of the court is that children will benefit from the presence of both parents; therefore, joint custody is preferred. However, some behaviors – such as illegal drug use by a parent or other unlawful activities – will force the court to deny custody. There are four child custody arrangements in Oklahoma, including:
- Sole legal custody
- Sole physical custody
- Joint legal custody
- Joint physical custody
Legal custody gives one or both parents the ability to make important decisions on behalf of the children, such as those concerning religious affiliation or medical care. Physical custody refers to where the children live. Some of the primary factors the court uses when determining custody are:
- The parent and child relationship
- The mental and physical health of each parent
- The lifestyle of each parent
- The ability of each parent to provide for the children
- The preference of the children
- The proximity of the children to their school and community surroundings
When one parent becomes the custodial parent in a joint physical custody arrangement, the other spouse is likely to be awarded visitation. Visitation refers to parenting time with the children and usually occurs on a schedule. When parents can agree on a visitation schedule, the adjustment period can be smoother for the children.
When there is a divorce or a death in the family, the time that grandparents routinely spend with their grandchildren can be altered or eliminated. Each case should be reviewed with an experienced attorney to see what rights are appropriate for the situation. In order for grandparents to seek guardianship or become adoptive parents, it is necessary to prove that parents are unfit. All court rulings are made based upon the best interests of the children.
Parents are responsible to provide for the needs of their children after a divorce. In some instances, one parent might make a much larger portion of the combined marital income. In those cases, it’s likely the parent with more resources will contribute a larger amount of money to the financial needs of the children. To determine an appropriate child support obligation, the court uses:
- The gross income of each parent
- The amount of parenting time that has been granted to each spouse
- The number of children
- Child-related expenses
The amount a parent pays for social security benefits and taxes, among other expenses, is often considered when calculating child support.
Child Support Enforcement
When a parent falls behind on child support or stops paying entirely, he or she may face both state and federal consequences. Some of the measures a court could enforce include:
- Contempt of court
- Income withholding
- Increasing income withholding
- Suspending a driver’s license
- Revoking a professional license
- Intercepting tax returns
- Placing a lien on real estate
- Credit reporting
It’s important to know that contempt of court can result in a 30- to 90-day jail sentence. In severely delinquent child support cases, an Oklahoma judge can sentence a parent to up to four years behind bars.
The only way for a father to have legal rights regarding his children is to establish paternity. Once paternity is determined, a father can petition the court for certain rights and responsibilities that pertain to the general welfare of the children. The benefits to establishing paternity are:
- Children receive emotional support
- A father can contribution financially to the needs of the children
- Children gain the medical knowledge of the father’s side of the family
- Life insurance and social security benefits become available to children
- Children become eligible for inheritance rights
Division Of Property
Property allocation is often a tense process between couples. In equitable property states like Oklahoma, the court has a fair amount of discretion when dividing items between parties. All property and debt accumulated in the marriage belongs to both spouses. Some factors the court will use in equitable division include:
- The earning potential of each spouse
- Which parent will be the custodial parent
- The debts of each spouse
- Any conduct that increased or decreased marital property
The task of dividing property starts with classifying it into one of two categories – marital or separate. When spouses can agree on dispersing property, the court may approve the agreement as it was designed, keeping the process simple. Because of equitable property division laws, items are awarded based on what is just and reasonable. This means property is typically not portioned out between spouses in equal halves.
There are instances when property is not allocated between each spouse. Some examples include:
- If the property was owned before the marriage
- If a prenuptial agreement protects property
- If the item was a gift or inheritance
Alimony, spousal support and maintenance are all terms for giving financial assistance to a partner in a divorce. The Oklahoma court system makes alimony decisions based upon the individual circumstances of each case. Spousal support can take several forms, including:
- Temporary. This type of alimony is often awarded to a spouse while the divorce is being finalized.
- Short-term assistance. When a party needs time to attend classes to increase his or her earning potential, short-term alimony may be granted.
- Long-term assistance. This type of support continues until death or remarriage of a spouse.
Prenuptial And Postnuptial Agreements
A prenuptial or postnuptial agreement can be a useful planning tool for families in the event of a death or divorce. A prenuptial or postnuptial agreement can:
- Protect intended beneficiaries
- Give spouses confidence over money and property arrangements
- Shield you from debt a spouse carries
- Ensure property included in agreement is protected
- Protect a family business
Once a divorce is final, spouses are obligated to honor the agreements made within the proceeding. Sometimes an unexpected situation can change the course of life, affecting an individual financially or physically. New circumstances can impact spousal support arrangements, visitation and child custody agreements. Some of the challenges that could warrant a modification to a divorce settlement include:
- A debilitating injury
- A job loss
- Job relocation