Don Pope & Associates

Divorce FAQ

Questions

Answers

Can I get a divorce in Oklahoma?

Typically, you can be divorced in Oklahoma if you have been a resident of Oklahoma for at least 6 consecutive months prior to filing a petition for divorce with the district Court.

Where will my divorce case be heard?

In the District Court of the county where you have resided for at least 30 consecutive days prior to filing your divorce petition. Our firm has represented clients in Oklahoma, Cleveland, McClain, Garvin, Grady and Pottawatomie Counties.

How do I commence divorce proceedings?

A verified Petition for Divorce must be filed in the district Court in the county where you and/or your spouse have resided for at least 30 consecutive days prior to filing your divorce petition. While there are “do it yourself” kits available, unless your issues are very basic and you fully understand how to proceed, we highly recommend using an attorney to file your case. Failure to file and pursue your case correctly could result in your divorce not being valid. We have dealt with a few post “do it yourself” experiences where we determined a party was not validly divorced. At the very least an attorney can properly advise you of your rights under the divorce laws.

What is a retainer fee?

A retainer fee is a prepayment of attorney fees prior to an attorney commencing work on your case. Our firm typically bills hourly against the retainer fee paid by the client and submits invoices on a regular (ie: monthly) basis to the client itemizing the hours spent on the client's case, the retainer received by the firm, and the amount paid from the retainer to cover the attorney's fees incurred. It is typical for most attorneys to also seek an advance on expenses, such as court filing fees, deposition costs and other related out of pocket expenses.

Will the retainer fee cover my entire attorney fee?

In contested matters, it is difficult to estimate the time that will be spent on a client's case and the retainer may be exhausted prior to the conclusion of a client's case. In such instances, the client will be responsible for paying any balances owed for services rendered based upon the agreement between the client and attorney, which is usually billed at the attorney's hourly rate.

How long does it take to get a divorce in Oklahoma?

In an uncontested divorce, if the divorcing parties have minor children, there is a statutory 90 day waiting period between the time a divorce can be granted by the Court and the filing date of the petition. This waiting period may be waived with consent of both parties and approval of the court. Divorces that do not involve minor children can be finalized after a 10 day waiting period from the date of filing the petition for divorce. If your case is contested, the divorce will usually take longer to complete than the 90 day and 10 day waiting periods due to the discovery process and dockets of the Court.

What is the legal divorce process like?

Although some divorces are very simple and can be handled with a minimum amount of red tape and delay, such as when there is no significant property involved and the couple has no children, most divorces are far more difficult and can take many different courses. The following, however, is a basic outline of the divorce process.

One spouse contacts a lawyer, who assists in the preparation of a complaint, the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought.

The complaint is filed with the court and served on the other spouse, together with a summons that requires that spouse's response.

The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must set forth the relief that the answering spouse requests.

Usually at the time the complaint is filed an application for temporary order is also filed and served. A temporary order is designed to handle issues, such as temporary custody of a child, payment of child support, payment of spousal support (if necessary) payment of debts, temporary possession of marital property such as the home and vehicles until the final divorce decree can be filed. A hearing on this Application will be held within a few weeks of service and remains in effect until the decree is issued.

The parties, through their attorneys, engage in "discovery," during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, debt division, spousal support, child support, etc.

The parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.

If a settlement is reached, the agreement encompassing the terms of the settlement is submitted to the court.

If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, then the parties may try to revise their agreement and resubmit it to the court. If there has been no agreement, the case will go to trial.

At trial, the attorneys present the evidence and arguments for both sides, and the judge decides the unresolved issues, including child custody and visitation, child and spousal support, debt division and property division, and grants the divorce.

Either or both parties can appeal the judge's decision to a higher court.

The entire process can take from as little as a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.

Am I required to go through all of the above proceedings?

No. If you and your spouse have reached an agreement as to all issues you may hire an attorney to pursue an uncontested proceeding on your behalf. In such cases the attorney will draft all necessary documents to include documents for the non represented spouse and accompany you to court for approval of your divorce.

If I pursue this uncontested proceeding does my spouse also need an attorney?

One attorney may draft all documents and present them to the spouse for approval. These documents typically include a waiver which allows the filing party to go to the court without the spouse having to appear to get the divorce approved. That attorney only represents the party who hired him to file the divorce and cannot offer advice to the spouse. The spouse is at liberty to hire another attorney to review any of the documents prepared and or to advise him/her of their rights, however, this is not required.

How does a court decide which parent will get custody of a child?

When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child's best interests. To make that determination, the court considers:

The child's age;

The child's gender;

The child's physical and mental health;

The parents' physical and mental health;

The parents' lifestyles;

Any history of abuse;

The emotional bonds between the parent and the child;

The parent's ability to give the child guidance;

The parent's ability to provide the basic necessities, such as food, shelter, clothing, and medical care;

The child's routines, including home, school, community, and religious;

The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent; and

If the child is above a certain age, the child's preference.

In many cases, a consideration of these factors results in awarding custody to the parent who has been the child's primary caretaker. Although this is often the child's mother, any preference for the mother strictly on a gender basis is outmoded.

Who pays child support in a divorce case?

Child support is paid by the non-custodial parent.

How is the amount of child support calculated?

In Oklahoma child support is determined by a statutory formula that takes into account the gross monthly income of each party and expenses related to the children. These guidelines allow for some deviation if the Judge finds good cause. The guidelines also allow for an offset if the parents have a shared parenting plan which provides for visitation in excess of the statutory number of overnight visits. The child support guidelines also take into consideration the health insurance premiums and employment related child care expenses paid by one party for the minor children. See link to Oklahoma Child Support Guidelines in the Online Resources portion of this site.

Once a court issues a child support order, can the amount of support that is paid be changed?

The amount of child support is modifiable if there can be demonstrated a material change in circumstances after the initial order of the court. This is usually done by filing of a Motion to Modify with the court. If the parents agree to a change, an agreed motion may be filed, but the court must approve even an agreed-upon change in order for it to be enforceable. A mere agreement between the parties is not enforceable.

Example: If the payer parent loses his job and asks the custodial parent if he can go a few months without paying support until he has a new job, the custodial parent may voluntarily agree to this modification. If, however, she later decides that she wants to collect the amount of support that went unpaid during that temporary period, the court might support her if it never formally approved the change.

When there is no voluntary agreement, the party seeking the change, after the filing of a motion, must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been some significant change in circumstances that justifies the change, such as a significant increase or decrease in either parent's income through job change or a substantial change in the needs of the child. Changes in the child support laws, too, may also justify a change in previously issued orders. Other reasons for a change may include a reduction upon the emancipation of each child.

What kinds of assets are divided in a divorce?

In contested divorce actions, property and debt are divided by the Court according to what the Court decides to be an equitable division of property and debt between the parties. Much is left to the discretion of the Court in property division cases that are contested. An equitable division does not necessarily mean an equal (50/50 split between the parties) division.

The parties in a divorce can agree to the division of, or the judge will divide, all marital property owned by the parties. Generally speaking, this includes most of the property the couple acquired during the marriage, including the marital home; a second or vacation home; home furnishings and appliances; artwork; vehicles, including cars, boats, etc.; money; stocks, bonds, and other investments; pensions; and privately owned businesses.

The value of other, more intangible property is also often divided. Examples of divisible intangible property include the value of a patent, the value of the celebrity status of a spouse's name and the goodwill value of a business owned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly, such as by supporting the spouse to whom the asset is more directly attributable.

It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. This is where the parties' lawyers can help. Through the legal process known as discovery, the parties' attorneys exchange documents that reveal each party's income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account statements, brokerage house records, real estate records, loan applications, and business records usually give a clear indication of each party's financial situation. In addition, each spouse may be deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income.

If necessary, additional parties may be deposed, such as employers, bankers, or business partners. If these additional witnesses do not come forth willingly, their presence can be compelled through the issuance of a subpoena, which is an official legal document that commands their participation.

What happens to the property that each spouse owned before the marriage?

In Oklahoma, the property that each spouse owned before the marriage, as well as property given to or inherited by one spouse during the marriage, usually remains that spouse's separate property. It may, however, be considered as part of the total circumstances in determining a fair allocation of the marital property.

In addition, if non-marital property is not kept separate from marital property, it may lose its separate characterization and become subject to division.

Example: If one spouse had a bank account containing $5,000 before the marriage, but during the marriage the spouses both made deposits and withdrawals from the same account, the amount in the account at the time of divorce or separation will probably be deemed marital property, to be divided between the husband and wife. If, on the other hand, the spouse with the $5,000 account deposits only other non-marital money, such as inheritances to him or her alone, in the account throughout the marriage, all the money in the account will probably remain with that spouse upon divorce.

A house owned by one spouse prior to marriage presents unique issues, because often both spouses contribute to the home's maintenance and mortgage payments during their marriage. This commingling of marital and non-marital assets may convert some or all of the value of the home to marital property.

Under what circumstances will the court award alimony or spousal support?

The obligation of spouses to support each other does not necessarily terminate when they divorce. The Court can order temporary alimony, alimony to continue for a period of time following the entrance of the decree, or both.

In general spousal support is based on one spouse’s need for support and the other spouse’s ability to pay. If this base criteria is met there are a number of cases where the court may be inclined to order support. For example, it is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony is termed “rehabilitative” and is usually for a particular length of time needed to accomplish an educational goal. This temporary, or rehabilitative, spousal support enables the spouse receiving it to further his or her education, reestablish himself or herself in a former career, or complete child rearing responsibilities, after which time he or she can be self-sufficient. Such alimony is generally a taxed as income to the recipient and is a tax deduction for the payor.

What is alimony in lieu of property division?

Alimony in lieu of property division is separate and distinct from support alimony. Often the division of marital property can be difficult when dealing with marital assets such as a family owned business. The party responsible for paying alimony in lieu of property division is typically awarded an asset, and ordered to pay the opposing party alimony in lieu of property division for the other party's share of the value of the marital asset awarded to the payor. The advantage of having alimony characterized as being in lieu of property division as opposed to support alimony is that such alimony is not taxable.