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Marriage is defined as a civil contract between two people of the opposite sex, capable of contracting. To be married, two people must be of opposite gender. "Capable of contracting" means that both persons must be of age, or have the consent of a parent, and must be unmarried and not divorced within the six months prior to entering the current marriage contract.
Oklahoma is one of 12 States and the District of Columbia that allow the creation of marriage by common law within their borders. A common-law marriage is one in which there is no ceremony or marriage license. First and foremost, the definition of the previous question still applies. Parties must be capable of contracting and of opposite gender. A common law marriage requires an actual agreement by the two people to act as husband and wife. The agreement may be by words or conduct.
There must also be a "holding out" of the marital status. This means that the parties must represent themselves as married to others, such as using the same name, calling each other "husband" or "wife", opening joint accounts or contracting joint debt, filing a joint tax return, etc.
If there is a disagreement as to whether or not the parties are married, the person alleging that a marriage exists must prove the marriage by clear and convincing evidence. If the relationship is not initially a common law marriage, because of a lack of contract capacity, the common law marriage may still be created if the couple continues the "marital" relationship after the contract defect is removed.
A growing number of people now believe that Common Law Marriage has been abolished in Oklahoma. This is a misconception. Abolition of the relationship will require an act of the State Legislature. As of now, that has not happened.
The Common Law marriage can be terminated in the same way a ceremonial marriage can be terminated--annulment, divorce or death. The only difference between a ceremonial marriage and a common law marriage is the method of creation of the marriage itself. Once created, there is no difference between the ceremonial marriage and the common law marriage whatsoever.
Remembering that marriage is a contract, an annulment is a method of voiding a marriage "ab initio" (from the beginning). If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted, however, if the marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect.
An annulment cannot be granted in a common-law marriage. Since the defect or fraud goes to the creation of the contract, if any of the annulment grounds exist, that ground would prevent the creation of the common-law marriage.
Separate Maintenance, sometimes called a "Legal Separation", is a legal status conferred by a court, where the parties remain married, but the court sets the rights and liabilities of the parties with respect to child custody, support, visitation, alimony, property and debts. A decree of separate maintenance cannot be "converted" to a divorce decree. If parties in a legal separation later desire a divorce, they must file a new divorce action.
A divorce is started by filing a petition in the District Court. To file for a divorce in a county, the person filing must have bee a resident of Oklahoma for the six months preceding the filing of the petition, and also must have been a resident of that county for at least 30 days or be filed in the county where the non-filing party resides
The first step in the process is to determine if a Temporary Order is desired. If the filing party needs support, or other relief while the divorce is pending, then the party should file an "Application for Temporary Order" at the same time the petition is filed. Copies of the filed Petition and Application are delivered to the Judge, who will set a date for the hearing on the Application. If there are minor children of the marriage, the application is not needed. The matter will automatically be set for a "parenting conference" and both parties must attend. At the parenting conference, a temporary order is set.
Upon the filing of the divorce petition, an automatic injunction is imposed by law. This injunction prohibits either party from disposing of any property unless authorized by the court or if both parties agree to waive the requirements of the injunction. The "Notice of Injunction" form contains signature lines where the parties can agree not to be bound by the injunction. If one of the parties refuses to sign the waiver, the other can apply for a waiver from the court.
If the non-filing party is aware of the filing, and does not need to be served, the non-filing party can sign a "Waiver of Service" acknowledging receipt of the Petition, and there is no need for a summons. If the non-filing party needs to be served, a summons must be issued at the time the Petition is filed, and it must be served along with the other documents. The divorce documents can be served by Certified Mail, or delivery by a Deputy Sheriff or a Private Process server.
If there are no minor children and the parties agree to the terms of the Temporary Order, there is no need to go to court on the day of the Temporary Order Hearing. An "Agreed Temporary Order" can be drafted and signed by the parties and filed with the case. The court should be notified of the agreement, so that the case can be taken off the Hearing Docket for the day of the Hearing.
If there are minor children of the marriage, each party will be required to attend a half-day seminar called "Helping Children Cope With Divorce". More information can be gained from Family and Children's Services, or from the Court Clerk. Cost of the seminar is about $40 per person. The parties do not have to attend together. Both parties should schedule their session early, as it sometimes takes a while to find an opening. Additionally, some Counties require the parties to attend a "Parenting Conference" within a few weeks of the filing of the Divorce action. Courts with this requirement will expect a Temporary Order to be put in place at the Conference.
If there are minor children, a court cannot grant a divorce for at least 90 days after the papers are filed. If the divorce decree specifically waives this requirement, and both parties sign the decree, the requirement need not be enforced.
Issues to be determined in the divorce decree include the following:
If all these issues are agreed by the parties, an Agreed Decree can be drafted and signed by the parties. At least one of the parties will need to appear before a Judge, be sworn, and give testimony. If the Judge is satisfied that the Grounds are legitimate and the Decree terms are equitable, the Judge will sign the decree.
If there is no agreement, most Courts will require the parties to attend a mediation session. Mediation costs between $100 and $200 per hour, with each party paying half. The mediator cannot make decisions. The role of the mediator is to attempt to assist the parties in communication toward an agreement.
The Divorce is final as soon as the decree is signed by the judge. It is a common misconception that the divorce is not final for 6 months. Parties to a divorce may not remarry anyone except each other for 6 months after the decree is granted.
A recent decision by the Oklahoma Supreme Court suggests that a party to an Oklahoma Divorce Decree that leaves the state and remarries in another state during the six months, will be considered validly married, if the marriage is valid in the state where the party married.
Child Support is based on a variety of factors. Initially, the combined gross monthly income of the parties is calculated. A table specifies what the child support amount is presumed to be for the income level of the parties and the number of children involved. The paying party pays the percentage of the total support amount that corresponds to the paying party's percentage of the combined income. For instance, suppose each party in the marriage earns $2,000 per month. The paying party would pay 50% of the total amount from the table, since the paying party contributes 50$ of the combined income. In instances where the calculation calls for one party to pay the other, there will be a reduction in the monthly amount if the paying party has the child(ren) more than 120 overnights in the course of the year. While not a sliding scale, beginning with 120 overnights, the more nights the child(ren are with the paying party, the greater the reduction in child support.
Additionally, the paying party is responsible for the same percentage of Health Insurance premiums for the child(ren), the uncovered medical expenses, and the employment related daycare.
A good online calculator for Oklahoma child support can be found at www.familiesintransition.com.
In 2002, the Oklahoma legislature passed some pretty major reforms in the area of divorce law in Oklahoma. One of the changes is to give children a limited say in the custody/visitation arrangement. Under the new law, a child may express a preference to the judge. If the child has sufficient capacity to choose, the judge must either adopt the child's wishes, or make specific findings of fact as to why the child's wishes are not being followed. The law also creates a presumption that a child of 12 years or older has sufficient capacity. If the child is under 12, the judge can make a determination that the particular child has sufficient capacity. If the child is 12 or older, the court can find that the child lacks sufficient capacity.
This is an area if great confusion. "Joint Custody" has nothing to do with the amount of time the child(ren) spends with either parent. True Joint Custody refers the ability of both parents to have somje input into the major life decisions of the child(ren). Issues related to religion, education, extracuriular activities, body piercings, and a host of other areas will often be included. Isues related to the amount of time the child(ren) spend with each parent are referred to as "shared parenting".
No. Only the incomes of the natural or adoptive parents are used to calculate child support.
Support Alimony is rapidly becoming a thing of the past. The determination of Alimony is based on the need of the receiving party, and the ability of the paying party to pay.
Alimony is still granted, however, in cases of long-term marriages, where one spouse has stayed out of the workforce to "tend the home", or where there is a tremendous disparity between the earning capacity of the two parties.
It's possible, but don't count on it. In addition to the reasons listed in the last answer regarding Alimony, Attorney's fees may be awarded if one party has shown bad faith in the divorce proceedings, or extreme fault in the marriage. Fees are awarded at the end of the divorce, so plan on paying your attorney initially, and being reimbursed from any award. It is critically important that you discuss this with your attorney from the beginning.
I love them.
Because I charge about $2,500 each to undo the messes that they create.
If the question is related to Marriage or Divorce Law in Oklahoma, you can e-mail me with the question, or call me at (918) 258-2711.
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