_MICHELLE K. SMITH
Attorney at Law, PLLC
4100 Perimeter Center Drive, Suite 230
Oklahoma City, Oklahoma 73112
Oklahoma Contested Divorce FAQ
FREQUENT ASKED OKLAHOMA CONTESTED DIVORCE QUESTIONS
Below are answers to questions frequently asked by men and women going through the divorce process in Oklahoma. Please remember the answers and the information contained on this web site are based on general facts and might not apply to specific factual situations. In addition, this information is based on Oklahoma law. The laws of other states may differ substantially. The information contained on this web site is not meant to be specific legal advice. Always consult a lawyer to apply the law to your specific facts and state.
1. Is there a waiting period between when a divorce is filed and when it is final?
Yes. In Oklahoma, if there are minor children you must wait 90 days from the time you file until your divorce is final, even if the divorce is uncontested. If you have minor children a law which went into effect on November 1, 2014 requires both parents to attend a court approved class about children and divorce before the divorce can be finalized. It is important to check with your attorney or with the court clerk in your county to make sure the parenting class you have selected is an approved class. If there are no minor children the waiting period is ten days. A judge may waive the waiting period for good cause.
2. How will our assets be divided?
Under Oklahoma law, marital assets are to be equitably (not necessarily equally) divided. In dividing property the judge may consider the projected future earnings of the parties, the amount of debt each party received and other criteria. The judge will also consider whether any property is the separate property of either party and whether that separate property has been co-mingled in such a way that it has become marital property. For example, money that a party inherits is usually separate property. However, if that inheritance is used to purchase an asset for the benefit of the marriage, it is possible that the asset may be considered marital.
3. What is an Automatic Temporary Injunction?
When a Petition for Divorce is filed in Oklahoma an Automatic Temporary Injunction goes into force immediately. The Automatic Temporary Injunction 'ATI' stops the parties from disposing of marital assets, hiding money, harassing each other or making significant changes to retirement accounts and insurance, among other things. You can click here to read the entire ATI statute.
4. What about alimony?
Many parties are worried about support alimony. Will I receive alimony or will I have to pay alimony? Whether alimony will be ordered depends on two things. First, does one party have a need for alimony? The judge will want to see a current or projected budget showing income less expenses. If there is a need for alimony the judge will then consider whether there is an ability to pay. Even if one party has a need for alimony, it will not be ordered if the other party does not have an ability to pay. If the judge determines that there is a need and an ability to pay, the final question is how much alimony will be ordered. Unfortunately there is no set formula for calculating alimony in Oklahoma. A judge may consider a myriad of facts and circumstances when deciding how much alimony and how long alimony will be ordered. The judge may consider the length of the marriage, the health of the parties, the earning abilities of each party and the age of the parties among other things. Alimony awards are very fact specific, so it is important to speak with an attorney if alimony will be an issue in your divorce. Click HERE for more information about alimony.
5. What are my chances of gaining custody of my children?
That depends on the facts of your case. Neither joint custody nor sole custody are preferred in Oklahoma. Instead the custody award is based on the best interests of the children. If both parents were involved with the children during the marriage and the parents are still able to communicate regarding the children, then joint custody is a possibility. There are many misconceptions about joint custody and it is important to understand the legal implications before making a decision.
6. Does joint custody mean each parent will have equal time with the children?
Not always. Joint custody means the sharing of parental rights and duties and not necessarily equal time.
7. What about child support?
Oklahoma law is clear that both parents have a duty to provide financial support for their children. Oklahoma uses a formula which combines the gross income of both parents, and then calculates child support amount based on the combined income. Several other factors are used in the child support calculation, including court ordered child support paid for prior born children, work or school related daycare and gross income for almost all sources. Child support payments often go back to the day of filing even if the judge didn't order child support until a month or more after filing. The Oklahoma Department of Human Services provides an online calculator to help you estimate child support. You can click here to use that child support calculator to estimate your child support.
8. If my spouse wants a divorce and I don't, how can I stop it?
Once a divorce is filed in Oklahoma and one party wants to go through with it, you can't stop it from happening in the court system. Your only hope is to convince your spouse to consider reconciliation.
9. What are Temporary Orders?
It is not uncommon for a period of six to twelve months to pass before a contested divorce goes to trial. This is due to many things, including the time needed to gather information and witnesses as well as the judge's trial schedule. Temporary Orders can be issued by a judge or agreed to by the parties while the divorce is pending. The Temporary Orders put rules into place that the parties will abide by while waiting for their divorce to be granted. The Temporary Orders typically deal with custody, visitation, child support, support alimony, who will live in the marital home and who will pay what debts during the period from the filing of the Petition to the date the divorce is granted.
10. What is the first step in the divorce process?
Once you've decided that divorce is the best thing for you, your attorney will file the divorce Petition. The Petition contains certain factual information about the parties, as well as the grounds for the divorce. Because Oklahoma is a no-fault state, the reason for the divorce is usually listed as incompatibility. This means the parties have different interests and have grown apart and your relationship is irreconcilable. The divorce Petition will be served on your spouse and the process will begin.
11. Is mediation required in most Oklahoma divorces?
It depends. Some Oklahoma courts require mediation while in others the parties can attempt mediation but it is not mandatory. Mediation is available through professional mediators as well as through the Oklahoma Early Settlement program. Private mediators are typically attorneys and retired judges who mediate for a fee. Mediators with the Early Settlement program have received mediation training but they may not be attorneys. The Early Settlement Mediation is free to anyone who has filed a case in Oklahoma Courts. Click here for information regarding Oklahoma's Early Settlement Mediation program.
12. Will I have to pay my spouse's attorney fees?
Attorney fee awards in Oklahoma divorce cases are not based on winning or losing. There are two common scenarios under which attorney fees are awarded. The first scenario occurs when one spouse has a much larger income than the other spouse. The second scenario occurs when one party has behaved in a manner which caused unreasonable delay and/or increased costs during the litigation. Recently the legislature enacted 43 O.S. 112.6, a statute which allows a judge to order attorney fees when one party has been the victim of domestic violence.
13. Can one attorney represent both parties in a divorce?
An attorney can draft the documents in a divorce for both parties to sign, however an attorney can't ethically advise more than one of the parties on how to proceed in the divorce.
14. Are there any alternatives to a trial?
Yes, in fact most divorces are ultimately settled out of court by mediation or simply attorney-to-attorney settlement. Settlement can happen at any point, including right before a trial is scheduled. If the parties are unable to settle all matters, then a trial is the only way to end the process.
Michelle K. Smith
Attorney at Law, PLLC
4100 Perimeter Center Drive, Suite 230
Oklahoma City, OK 73112
one: (405) 759-2333