PREPARING FOR A DIVORCE
Making the decision to get a divorce is a very emotional and difficult experience whether you are deciding you will be the one to initiate it, or the decision is hastened or even foisted upon you by your spouse. Divorce is not only difficult emotionally, the laws and court procedures can be confusing and complicated, the financial implications can be huge, and if children are involved, their well-being will be of paramount concern. People have many questions. Hopefully you will find some answers here. This is general information and not legal advice for anyone’s specific situation. Call or contact us to get a free consultation and real legal advice from an experienced divorce lawyer.
1. On What Grounds May I Be Entitled to a Divorce?
Oklahoma recognizes twelve (12) grounds for divorce, or “Dissolution of Marriage” as it is now called in Oklahoma. These include such things as adultery, extreme cruelty, and habitual drunkenness, but far and away the most common grounds is incompatibility. All this means is that one of the parties – and it only takes one of the parties – believes the marriage is broken down beyond repair. Some people may call this “no fault’ divorce. In fact, no matter what the grounds, it will still be a “no fault” divorce because the grounds for the divorce have no bearing on any of the other matters that are addressed in a divorce case. The court is required to make a fair and equitable division of marital property, and to make the same division without regard to either party’s fault for the failure of the marriage. The court is to determine whether spousal support alimony is due, and considerations of fault have no place in the decision. The same is true of custody and other matters relating to children. The children’s best interests drive the decisions, not the fault of the parties. In fact case law holds that once the trial judge has heard evidence that one of the parties believes there has been an irretrievable break down of the marriage, the judge has no obligation to even admit into evidence any other grounds.
2. Will “Fault” Play Any Role in the Outcome of My Divorce?
As mentioned above, even if the divorce is granted on grounds other than incompatibility, the fault of one party in causing the breakdown of the marriage will not affect the outcome. There are two types of “fault” that definitely can affect the outcomes. First, if minor children are exposed to any inappropriate relationships by either party with another person, it may strongly impact the outcome of the custody and visitation determinations. The fact of having an affair won’t affect property division or even spousal support alimony, but if the children are exposed to that affair, that exposure will impact issues of custody and visitation. Second, if one party is at “fault” for dissipating marital assets, that may impact the property division. For example, if one spouse has spent marital money to pay for gifts or vacations for that spouse’s paramour, the other spouse will most likely be entitled to property of equal value before the fair and equitable division of the remaining property begins. If one spouse has been hard working and frugal, and the other spouse has been lazy, indolent and a spendthrift, the thrifty spouse may well be rewarded with a larger share of the remaining marital assets, or the spendthrift spouse awarded a larger share of the marital debt.
3. Where Will My Divorce Take Place?
To get a divorce in Oklahoma, one of the parties must reside here for at least six months before the case is filed. The case can be filed in any county in which either of the parties resided for at least thirty days before the case is filed.
4. Should I Move from the Marital Residence?
Whether to move out of the marital residence is a question you should discuss with your attorney during the initial meeting or soon after. Deciding when and how to move out of the home you have been living in with your spouse is up to you, but there are important factors you must consider prior to making your decision. As a general rule, never leave anything behind that you are wanting the court to award to you in the end, and this applies to children as well as property. If you hope to gain ownership of the house in the divorce property division or hope to live there when your divorce is final, don’t leave it. Remember actions speak louder than words. If you didn’t care enough about living in the house that you were able to decide to let the other spouse stay there while you left, the Judge is likely to conclude that the arrangement is working fine and should be made the final outcome. The same is true of child custody. If you want to eventually live in and receive ownership of the marital home, stay in the residence as long as possible (unless, of course, there is domestic violence). If you want custody of your children, don’t leave them in the custody of your spouse. At the end of your divorce, the judge may not want to rearrange everyone’s lives—especially if children are involved. Your goal should be to set up the life situation you hope to maintain after the divorce. If you want the house, continue to live there. If you want child custody, within reason, remain living with your children.
5. Should I File for Divorce or Legal Separation?
In Oklahoma, an action for Legal Separation is available to parties that want to live separately, but not dissolve their marital bonds. This procedure is also referred to as one for Separate Maintenance or Alimony Without Divorce. Religious opposition to divorce is one of the main reasons for the action for Legal Separation. Another reason people choose not to divorce, even though they can’t tolerate living together, is to keep in force insurance or other benefits. Since Oklahoma law does not have residency requirement prior to filing as divorce does, an action for Legal Separation can also be a vehicle for newcomers to the state who want to live separately and need temporary orders for support or maintenance. In such cases the action can be amended to one for divorce after the six month residency requirement is fulfilled. Finally, the case law speaks frequently of the purpose of an action for Legal Separation being to provide for the present needs of the parties pending reconciliation or divorce.
Aside from the residency requirement and slight variations in the venue rules, the procedure for a legal separation is identical to that for a divorce. The Court may clearly make provision for child custody and visitation, child support, and spousal support. Whether the court can divide marital property in an action for Legal Separation has been a confusing and complicated question. The most recent pronouncement by our appellate courts on the topics held that the court can make a division of property in the following cases:
1. In an action initiated and concluded as a divorce case, including an action where one party counter-petitions for a divorce;
2. In an action initiated as a divorce case, but concluded as a Legal Separation decree;
3. In an action initiated as a Legal Separation action and concluded as such where:
a. One or both parties ask for a property division; and
b. The grounds for a divorce are established although a divorce is not granted, and the likelihood of reconciliation is remote.
If the sole reason for filing Legal separation is to provide for the present needs of the parties pending reconciliation or divorce, the same thing can be accomplished by filing the action for divorce and requesting a temporary order. This can save the expense of proceedings to amend the action later from Legal Separation to divorce if reconciliation is unsuccessful. If reconciliation is achieved, the case can be dismissed.
6. What Temporary Orders Can the Court Make While My Case Is Pending?
In Oklahoma the very act of filing for divorce triggers an Automatic Temporary Injunction (ATI). This Injunction is effective against the spouse that filed immediately upon filing. It is binding on the other spouse once he or she is served or voluntarily enters an appearance. The effect of the ATI is to freeze the status quo in effect at the time of filing. For example, it prohibits selling, disposing or hiding assets, changing insurance coverage or beneficiaries, and changing children’s school or day care. The full list of provisions is much longer than this. Be sure to discuss the ATI with your attorney and become familiar with all the details before filing. There are certain actions you may want to take before filing to secure your financial security during the divorce that must be done before the automatic injunction goes into effect. After the injunction is in place these actions could be in violation of the injunction, and violating it may be treated as a contempt of court.
After the case is initiated, on request of either party, the Court may enter additional temporary orders. The additional temporary order may cover child custody, support, or visitation; spousal maintenance (temporary support alimony); which party will be responsible for payment of which debt; awarding temporary exclusive use and possession of property (such as the marital home, vehicles, or even a business); awarding temporary attorney fees, and even grant further injunctive relief.
7. When Should I Discuss My Plans for a Divorce with My Spouse?
Talk to a divorce lawyer before talking to your spouse about divorce. We offer a free consultation. We can provide valuable information that will help you prepare. You can decide if we are a good fit to work together. If you have decided you want to live as an individual an no longer as a couple, then you must begin to think as an individual, and do what is necessary to protect yourself first. No doubt, your emotions concerning your spouse will be very mixed. You may still have deep feelings for your spouse, complicated by anger, love, guilt, depression, or confusion. However, divorce will transform your identify from a “couple” to being one of two separate identities. A divorce is an individual process and your lawyer can represent only you and your interests. Your spouse will get a lawyer to represent his or her own interests. Do not be naïve and believe your spouse and his or her lawyer will be looking out for your best interest when it comes time to discuss the division of property and money and child custody. Divorce can be an adversarial process; therefore, if you prepare documents and financial affidavits before you approach your spouse about getting a divorce, keep these documents in a place where you are sure your spouse will not find them. Be absolutely sure! You may wish to purchase a new safe deposit box (not the one you share but he or she never goes into—there’s always a first time). You may store the papers with a trusted relative or friend, someone you feel confident will keep your plans a secret. Get a new, safe, private e-mail account with a safe password and secret questions your spouse will not easily guess. Discuss your situation with your lawyer who may have additional advice concerning locking down existing joint bank accounts so funds can’t disappear, opening new separate accounts, or closing credit card accounts, so balances can’t be run up. These are things that can’t be done once the ATI is in effect. You should gather and preserve evidence before discussing divorce with your spouse. Photograph assets. Make copies of financial records. Record serial numbers, VINs, and other important information. If you have not been the one primarily responsible for the finances, learn everything y9ou can while you have access to the records. Remember that once you reveal your intentions to someone, even your mother or oldest school friend, the secret is shared. Even a loving parent firmly on your side may slip up and talk about your impending divorce with others. Keep in mind also that the date of filing may impact what assets will be divided or the value to ascribed to them. Leaking the news of your intentions could result in your spouse filing first and disrupting your timing. Be prepared to have your spouse discover your intentions before you are ready to confront him or her with them. If you want to maintain complete secrecy for a while, tell nobody, except your lawyer and perhaps a therapist whom you do not share with your spouse and who must maintain your confidence —until you are ready to file for divorce and serve your spouse with divorce papers. Your family and friends will understand that divorce is a sensitive matter and one of the most personal decisions anyone can make.