Posted by DivorceLine in Oklahoma Divorce Procedures
Complete overview of Oklahoma divorce laws for people considering a Oklahoma divorce or filing a Oklahoma divorce with issues to be resolved about child custody, child support, visitation and alimony.
Oklahoma Divorce Residency Requirements
In order to file your Petition for Divorce in Oklahoma, you must make sure the District Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Oklahoma residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:
Either the plaintiff or the defendant in an action for divorce must have been an actual resident, in good faith, of the state, for six (6) months next preceding the filing of the petition.
Provided, 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 next preceding the filing of the petition, may bring action for divorce or may be sued for divorce.
The divorce is typically filed with in county in which the filing spouse resides. (Oklahoma Statutes – Title 43 – Sections: 102 and 103).
Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Oklahoma. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Oklahoma residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.
Oklahoma Grounds for Divorce
The Petition for Divorce is the initial document filed with the Oklahoma court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.
The district court may grant a divorce for any of the following causes:
No-Fault Based Grounds:
1. Incompatibility.
Fault Based Grounds:
1. Abandonment for at least 1 year. 2. Adultery. 3. Impotence. 4. Wife pregnant with another man’s baby without the husband knowing it at the time of the marriage. 5. Extreme cruelty. 6. Fraud. 7. Habitual drunkenness. 8. Gross neglect of duty. 9. Imprisonment and Felony Conviction. 10. Insanity for a period of at least 5 years. (Oklahoma Statutes – Title 43 – Sections: 101).
Every divorce case that is filed in the state of Oklahoma must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.
Oklahoma Uncontested Divorce
This information is an overview of the uncontested Oklahoma divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Oklahoma.
To file for a divorce in Oklahoma, either spouse must be a resident of the state for six months before filing. The action may be filed in a county where the Petitioner has lived for 30 days, or it may be filed in a county where the Respondent lives.
No-Fault grounds are incompatibility. General grounds are 1) impotence, 2) adultery, 3) abandonment for a year, 4) imprisonment, 5) confinement for incurable insanity for five years, 6) cruel and inhuman treatment, 7) fraud, 8) habitual intemperance, (9) wife pregnant by another man at the time of marriage, 10) gross neglect and 11) a foreign divorce not recognized in Oklahoma.
Actions are filed in the District Court of the county. The filing spouse is called the Petitioner; the responding spouse is called the Respondent.
All of the general grounds for divorce, plus incompatibility and except a foreign divorce, are grounds for a legal separation.
Here are some of the forms that are required to file a divorce in Oklahoma:
a) a Domestic Relations Cover Sheet for both the Petitioner and the Respondent, which profiles the parties in the action;
b) a Petition for Divorce, which identifies the parties and the relief sought;
c) an Automatic Temporary Injunction Notice, if applicable, which enjoins the parties from harassing each other or dissipating marital assets and prohibits them from removing minor children from the state;
d) a Verification, which authenticates the Petition;
e) a Marital Settlement Agreement, which spells out the terms and condition of the division and distribution of marital property;
f) Financial Affidavits for both the Petitioner and the Respondent, which profile the finances of both parties;
g) a Child Support Schedule, which deals with child support, if applicable;
h) a Child Support Worksheet, which shows the calculation of support based on state guidelines, if applicable;
i) an Entry of Appearance and Waiver of Service, which is filed when the Respondent agrees to waive service of process;
j) a Notice of Final Hearing, which is given to the Respondent when a hearing is scheduled.
k) a Decree of Divorce, which when signed by the court ends the marriage.
Oklahoma Simplified Divorce Procedures
Separation agreements are specifically authorized by statute. [Oklahoma Statutes Annotated; Title 43, Section 205].
Each state has its own unique filing procedure. When filing for divorce in Oklahoma, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Oklahoma Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Oklahoma Laws and the filing requirements.
Oklahoma Property Division Factors
In Oklahoma, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the District Court within the Decree of Divorce.
Oklahoma is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the District Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the District Court to be fair.
A decree ordred by the court will confirm for each spouse the property owned by him or her before marriage and the undisposed-of property acquired after marriage by him or her in his or her own right.
Whether real or personal, which has been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall, subject to a valid antenuptial contract in writing, make such division between the parties as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to be paid such sum as may be just and proper to effect a fair and just division thereof. The court may set apart a portion of the separate estate of a spouse to the other spouse for the support of the children of the marriage where custody resides with that spouse. (Oklahoma Statutes – Title 43 – Sections: 121).
Since Oklahoma is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.
Oklahoma Spousal Support/Maintenance/Alimony Factors
In Oklahoma the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the District Court will order support from one spouse to the other on a case-by-case basis as follows:
A spouse may be awarded alimony out of real and personal property of the other if the court feels it is appropriate. The court will have regard to the value of such property at the time of the divorce. Alimony may be allowed from real or personal property, or both, or in the form of a monetary award, payable the spouse in a lump sum amount or in periodic installments, as the court may deem fair.
Payments of support will be made through the county clerk, then if requested, it shall be the duty of the court to transmit such payments to the payee by first class United States mail. (Oklahoma Statutes – Title 43 – Sections: 121 and 136).
Oklahoma Child Custody Factors
In Oklahoma, the court will explore all possibilities for a custody arrangement that is best for the children. Custody shall be awarded in a way which assures the frequent and continuing contact of the child with both parents. When awarding custody to either parent, the court:
a. shall consider, among other facts, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and
b. shall not prefer a parent as a custodian of the child because of the gender of that parent. (Oklahoma Statutes – Title 43 – Sections: 109 and 112 and Title 10 – Sections: 21.1).
In Oklahoma, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.
Oklahoma Child Support Factors
The parent awarded custody of the child must provide for the education and support of the child to the best of his or her ability. If such support is inadequate, the non-custodial parent must assist in the support to the best of his or her ability. A portion of the non-custodial parent’s property may be set aside for the custodial parent’s use in supporting the child. The only factors for consideration set out in the statute are: (1) the income and means of the parents and (2) the property and assets of the parents. There are official child support guidelines and compilation forms in the statute and forms are provided by the Oklahoma Department of Human Services and are available from any court clerk. The amount of support as shown by the guidelines is presumed to be correct unless it is shown to be unjust, unreasonable, inappropriate, or inequitable under the particular circumstances of a case. Child support computation forms are available from the clerk of the court. Child support payments may be required to be paid through the clerk of the court. Security or bond may be required for the payments and income withholding may be used to guarantee the payments. [Oklahoma Statutes Annotated; Title 43, Sections 110, 112, 118, 119, 121, and 136 and Title 56, Sections 235+].
Oklahoma child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Oklahoma child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Oklahoma child support deviation factors that may be applicable to the situation.
Oklahoma Grandparent’s Rights
Grandparent Rights to Visitation: Visitation may be granted if in the best interest of the child. If child born out of wedlock, father must have been legally determined to be the father for paternal grandparents to obtain visitation. If the child born out of wedlock and parental rights of the father have been terminated, paternal grandparents may get visitation if fatherhasbeen legally determined tobe the father, there was a previous relationship between the child and the grandparents, and visitation would be in the child’s best interest. Same true for maternal grandparents if child born out of wedlock and parental rights of mother were terminated. Title 10, Section 5 (10 O.S.A. § 5).
When Adoption Occurs: Visitation may not be granted subsequent to an adoption. Existing court-ordered visitation does not terminate upon adoption unless the court orders the termination after an opportunity to be heard and a finding that the termination of the visitation is in the best interest of the child.
Child Custody Statutes: Factors: (1) physical, mental and moral welfare of child, and (2) child’s preference. It is presumed against child’s best interest for party guilty of domestic violence to have custody. 43 O.S.A. §112 et seq.
Parents May Choose: Yes
Oklahoma Military Divorce Laws
An Oklahoma military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection From Oklahoma Divorce Proceedings
There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Oklahoma court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for an Oklahoma court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
Residency and Filing Requirements
The typical military divorce filing requirements are as follows:
a) You or your spouse must reside in Oklahoma
b) You or your spouse must be stationed in Oklahoma
Grounds for Oklahoma Military Divorce
The grounds for a military divorce in Oklahoma are the same as a civilian divorce.
Dividing the Property
Along with the normal Oklahoma property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
Child Support and Spousal Support
In Oklahoma, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Oklahoma child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.
Oklahoma Child Support Guidelines
The Oklahoma child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Oklahoma child support order.
Oklahoma Child Support Guidelines
Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: YES
Secondary Education Support: NO
UIFSA: YES
* The Income Shares Model: Oklahoma child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Oklahoma child support worksheet and the estimated incomes are typically substantiated by past pay stubs or W-2s.
For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.
As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.
For example: It is not common for a custodial parent to be paying support to a non-custodial parent.
Oklahoma Child Support Definitions
Child Support Guidelines
1. Except in those cases where parties represented by counsel have agreed to a different disposition, there shall be a rebuttable presumption in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the following guidelines is the correct amount of child support to be awarded. The district or administrative court may deviate from the level of child support suggested by these guidelines where the amount of support so indicated is unjust, inequitable, unreasonable, or inappropriate under the circumstances, or not in the best interests of any child involved.
2. The court shall not take into account any stepchildren of such parent in making the determination, but in making such determination, the court may take into account the reasonable support obligations of either parent as to only natural, legal, or legally adopted minor children in the custody of the parent.
3. If the district or administrative court deviates from the amount of support indicated by these guidelines, it shall make specific findings of fact supporting such action.
4. For purposes of this section and in determining child support, the noncustodial parent shall be designated the obligor and the
custodial parent shall be designated the obligee.
The child support guidelines are as follows:
1. All child support shall be computed as a percentage of the combined gross income of both parents. The Child Support Guideline Schedule shall be used for such computation. The child support obligations of each parent shall be computed. The obligor’s share shall be paid monthly to the obligee and shall be due on a specific date;
2. Gross income includes income from any source, except as excluded in this section and includes, but is not limited to, income from:
(1) salaries,
(2) wages,
(3) commissions,
(4) bonuses,
(5) dividends,
(6) severance pay,
(7) pensions,
(8) rent,
(9) interest income,
(10) trust income,
(11) annuities,
(12) social security benefits,
(13) workers’ compensation benefits,
(14) unemployment insurance benefits,
(15) disability insurance benefits,
(16) gifts, and
(17) prizes.
Specifically excluded from gross income are:
(1) actual child support received for children not before the court, and
(2) benefits received from means-tested public assistance programs including, but not limited to:
(a) Temporary Assistance for Needy Families (TANF),
(b) Supplemental Security Income (SSI),
(c) Food Stamps, and
(d) General Assistance and State Supplemental Payments for Aged, Blind and the Disabled;
3. a. For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, “gross income” is defined as gross receipts minus ordinary and necessary expenses required for self-employment or business operations.
b. Specifically excluded from ordinary and necessary expenses for purposes of this paragraph are amounts determined by the district or administrative court to be inappropriate for determining gross income for purposes of calculating child support.
c. The district or administrative court shall carefully review income and expenses from self-employment or operation of a business to determine an appropriate level of gross income available to the parent to satisfy a child support obligation.
d. The district or administrative court shall deduct from self-employment gross income an amount equal to the employer contribution for F.I.C.A. tax which an employer would withhold from an employee’s earnings on an equivalent gross income amount. A determination of business income for tax purposes shall not control for purposes of determining a child support obligation.
e. Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal living expenses. Such payments may include but are not limited to a company car, free housing, or reimbursed meals;
4. a. For purposes of computing gross income of the parents, the district or administrative court shall include for each parent, whichever is most equitable, either:
(1) the actual monthly income,
(2) if a parent has both principal and secondary employment, the greater of:
(a) the actual monthly income derived from the principal employment, or
(b) the combined actual monthly income derived from both the principal and the secondary employment, but not to exceed the parent’s actual monthly income for more than forty-four hours per week,
(3) the average of the gross monthly income for the time actually employed during the previous three (3) years, or (4) the minimum wage paid for a forty-hour week.
b. If equitable, the district or administrative court may instead impute as gross monthly income for either parent the amount a person with comparable education, training and experience could reasonably expect to earn.
c. If a parent is permanently physically or mentally incapacitated, the child support obligation shall be computed on the basis of actual monthly gross income.
d. In order to provide a self-support reserve for an obligor and to offset the effect of the Internal Revenue Service Earned Income Tax Credit, when the gross monthly income of the obligor is below One Thousand Dollars ($1,000.00) for one child, One Thousand One Hundred Dollars ($1,100.00) for two children, One Thousand Two Hundred Dollars ($1,200.00) for three children, or One Thousand Two Hundred Fifty Dollars ($1,250.00) for four or more children, and the obligee is entitled to the Earned Income Tax Credit for the children due support, in calculating the monthly child support obligation, the gross monthly income of the obligor shall be used as the combined gross monthly income of the parties. If the monthly child support obligation is higher than the amount calculated by using the combined monthly income of the two parents, the obligor shall pay the lessor of the two results.
e. After the monthly base child support obligation is determined from the Child Support Guideline Schedule, based solely on the income of the obligor, all other calculations shall be based on the proportionate share of both parents’ actual monthly combined income;
5. The amount of any preexisting district or administrative court order for current child support for children not before the court or for support alimony arising in a prior case shall be deducted from gross income to the extent payment is actually made under the order;
6. The amount of reasonable expenses of the parties attributable to debt service for preexisting, jointly acquired debt of the parents may be deducted from gross income to the extent payment of the debt is actually made. In any case where deduction for debt service is made, the district or administrative court may provide for prospective upward adjustments of support made possible by the reasonably anticipated reduction or elimination of any debt service;
Additional Adjustment to Support Obligation.
1. a. The actual medical and dental insurance premium for the child shall be allocated between the parents in the same proportion as their adjusted gross income and shall be added to the base child support obligation. If the insurance policy covers a person other than the child before the court, only that portion of the premium attributed to the child before the court shall be allocated and added to the base child support obligation.
b. If the obligor pays the medical insurance premium, the obligor shall receive credit against the base child support obligation for the obligee’s allocated share of the medical insurance premium
c. If the obligee pays the medical insurance premium , the obligor shall pay the obligor’s allocated share of the medical insurance premium to the obligee as part of the base child support obligation;
2. In cases of split custody, where each parent is awarded custody of at least one of their natural or legally adopted children, the child support obligation for each parent shall be calculated by application of the child support guidelines for each custodial arrangement. The parent with the larger child support obligation shall pay the difference between the two amounts to the parent with the smaller child support obligation.
3. a. Child care expenses shall be added to the base child support obligation. Child care expenses are actual costs incurred on behalf of a child to allow a custodial parent to:
I) be employed,
II) seek employment, or
III) attend school or training to enhance employment income.
b. In cases in which child care expenses will be incurred by agreement of the parties or by order of the district or administrative court, expenses shall be determined by calculating the amount paid annually for child care expenses, which shall be determined by the actual reasonable expenses, not to exceed the expense required to provide high quality care for children from a licensed provider.
4. By order of the court or by agreement of the parties monthly contributions for medical, transportation, or other costs may be added to the base monthly child support obligation.
a. Medical, dental, orthodontic, optometric, psychological, or any other physical or mental health expenses of the child incurred by either parent and not reimbursed by insurance may be allocated in the same proportion as the parents’ adjusted gross income as separate items that are not added to the base child support obligation. If reimbursement is required, the parent who incurs the expense shall be reimbursed by the other parent within thirty (30) days of receipt of documentation of the expense.
b. Transportation expenses of a child between the homes of the parents may be divided between the parents in proportion to their adjusted gross income as separate items that are not added to the base child support obligation.
Special Notice:
1. If combined gross monthly income exceeds Fifteen Thousand Dollars ($15,000.00), the child support shall be that amount computed for a monthly income of Fifteen Thousand Dollars ($15,000.00) and an additional amount determined by the court.
2. If there are more than six children, the child support shall be that amount computed for six children and an additional amount determined by the court.
Oklahoma Divorce Definitions
This collection of definitions will help clarify some unique characteristics to the Oklahoma Divorce laws, process and paperwork which is filed with the court.
Filing Party Title:
Petitioner
The spouse who will initiate the Divorce by filing the required paperwork with the court.
Non-Filing Party Title:
Respondent
The spouse who does not initiate the Divorce with the court.
Court Name:
State of Oklahoma, In the District Court, ___________ County
The proper name of the court in which a Divorce is filed in the state of Oklahoma. Each jurisdictional court typically has a domestic relations or a family law department or division.
The state run office devoted to enforcing existing child support orders and collecting any past due child support.
Document Introduction:
In re the Marriage of:
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.
Initial Divorce Document:
Petition for Divorce
The title and name of the legal document that will initiate the Oklahoma Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.
Final Divorce Document:
Decree of Divorce
The title and name of the legal document that will finalize the Oklahoma Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.
Clerk’s Office Name:
District Clerk’s Office
The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
Legal Separation:
A spouse may sue the other spouse for separate maintenance without filing for divorce. The action may be brought in any county where either spouse resides. The grounds for requesting non-divorce-based alimony are: (1) impotence; (2) adultery; (3) abandonment for 1 year; (4) imprisonment; (5) confinement for incurable insanity for 5 years; (6) cruel and inhuman treatment; (7) fraud; (8) habitual intemperance (drunkenness); (9) the wife pregnant by another at the time of the marriage; (10) gross neglect; and (11) incompatibility. [Oklahoma Statutes Annotated; Title 43, Sections 101 and 129].
Property Distribution:
Equitable Distribution
The applicable Oklahoma law that will dictate how property and debt is to be divided upon Divorce.
