James V. Murray is based in Stillwater Oklahoma and serves in areas around Stillwater. If you are looking for an Attorney to handle your Divorce in Payne County, Logan County, Lincoln County, Noble County, Pawnee County, Creek County or any other nearby county James V. Murray will give you the assistance you need. Call or email us today for a FREE consultation.
This list of frequently asked questions and answers on issues of separation and divorce has been developed by JAMES V. MURRAY & ASSOCIATES in conjunction with our professional members in response to the numerous requests for information we have received from our site visitors.
The answers to the questions provided in this section are general in nature and are not intended to create an attorney-client relationship or to replace specific legal advice.
What are valid grounds for divorce in Oklahoma?
Oklahoma is now a "no fault" state, meaning that a person desiring a divorce does not have to prove that his or her spouse is at fault in the marriage. The most common grounds for divorce is irreconcilable differences. However, there are several other possible "fault" grounds for divorce which a person may use, including adultery, cruelty, conviction of a felony, abandonment, living apart, and confinement in a mental hospital. Sometimes a client will want to file for divorce and use a fault, such as adultery. I always try to talk them out of it. Well over 99% of all divorces are settled by agreement, and it's just harder to reach an agreement with someone when you have called them names in public.
What is the legal definition of marriage?
Most states define marriage as a civil contract between a man and a woman to become husband and wife. The traditional way to marry is to get a marriage license from a state-authorized official, then participate in a formal civil or religious wedding ceremony.
File joint income tax returns with the IRS and state taxing authorities
Create a "family partnership" under federal tax laws, which allows you to divide business income among family members (this will often lower the total tax on the income)
Create a marital life estate trust
Receive spouse's and dependents' Social Security, disability, unemployment, veterans', pension and public assistance benefits
Receive a share of your deceased spouse's estate under intestate succession laws
Claim an estate tax marital deduction
Sue a third person for wrongful death of your spouse and loss of consortium
Sue a third person for offenses that interfere with the success of your marriage, such as alienation of affection
Receive family rates for insurance
Avoid the deportation of a non-citizen spouse
Enter hospital intensive care units, jails and other places where visitors are restricted to immediate family
What is an agreed divorce?
An agreed divorce happens when the married couple can agree on every aspect of the divorce, including who gets what property and possessions and what the custody and visitation schedule for the children will be. They get together and decide all of this and then get a lawyer to draft an agreed decree. The husband and wife both sign it. The lawyer and the client go to court one morning and prove up the divorce. The client and lawyer go before a family court judge and the lawyer asks the client a standard list of questions regarding the marriage, custody and visitation of the children and the agreed decree. If all is in order, which it should be, the judge will sign the decree granting the divorce right then and there.
What is a legal divorce?
A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, a divorce will give each person the legal right to marry someone else. It will also legally divide the couple’s assets and debts and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state does have some type of "no-fault" divorce laws that can significantly simplify the divorce process.
What is a no-fault divorce?
Traditionally, divorce was granted on the basis of some marital misconduct, such as adultery or physical abuse. In these cases, the "guilty" spouse was punished by getting a smaller share of the couple’s property or being denied custody of their children while the "innocent" spouse was rewarded for being faithful to the vows of marriage. In a no-fault divorce, however, both parties agree that there is no "fault" involved in the grounds for divorce. In fact, any misconduct is basically irrelevant to the divorce proceedings. A marriage can be terminated simply because the couple agrees that it is no longer salvageable.
What is a fault-based divorce?
A "fault" divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for fault can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease.
How long does it take to get divorced?
There is a thirty to ninety day waiting period from the date the divorce suit is filed with the court clerk until a court will grant the divorce. Of course, if the parties are not in agreement on the terms of the divorce, it probably will take longer to get the divorce accomplished.
Can I get the Court to require my spouse to pay my legal fees?
Not usually. In agreed divorces, most couples agree that each will pay their own attorney. The courts also seem prone to require the parties to pay their own attorney’s fees. Of course, you can sometimes get the Court to dip into the community property to pay the fees to your attorney during the pendency of the divorce. But the Court may also equalize the fees between the attorneys so that your spouse will also be able to draw out community funds to pay his or her attorney.
Is it okay to date during the time between filing for divorce and the rendering of the divorce (that is, during the pendency of the divorce)?
No. Don’t do it. It will complicate the divorce and may anger your spouse so much that he or she will not be as easy to deal with as they might have been prior to your dating. In addition, the spouse may assert that you are committing adultery and may bring that up in your divorce case. That could lessen the amount of money and assets you recover in the divorce. Besides, it is very confusing for the children for you to start dating that soon after separating.
Is a name change easier and cheaper in a divorce?
In divorce, the name change is properly called a "restoration of former name." If the name change is not done at the time of divorce, or is not to a former name, other rules apply and a separate lawsuit is required, with additional fees and costs. The restoration of former name can be done by simply adding a paragraph to the proposed divorce decree, and supported by brief sworn testimony at the time the divorce is "proved up" that (1) this is a change to a previous name; (2) the name change is not sought to avoid criminal prosecution; and (3) the name change is not sought to avoid creditors. There is usually no additional charge for this type of name change, and can be easily accommodated if you just notify your attorney while you are drafting the decree.
Is there legal separation in Oklahoma?
Yes. Usually this comes up in the context of protecting oneself from debts incurred by the other spouse while a divorce is contemplated. While Oklahoma is a community property state, there is no such thing as community debt. However, debts incurred during marriage may be satisfied by taking away community property under the control of the other spouse, such as a paycheck. If you are concerned about a spouse running up bills, your best solution is a divorce as quickly as possible.
Do I qualify for an annulment?
Oklahoma law does provide some basis for an annulment instead of a divorce, but cases in which the facts fit the law are extremely rare, so these cases almost always wind up as divorces. Annulment statutes are based on some sort of trick or deception at the time of marriage, and also require that the parties have not lived together since the trick or deception was discovered.
Can I use an attorney anywhere in Oklahoma?
A divorce must be filed in a county where one or both of the parties have lived for at least 60 days. While an attorney licensed to practice in Oklahoma may practice in any county, for practical reasons, you will need to hire an attorney who has an office in that county. In a state as big as Oklahoma, it’s simply not cost-effective for most people to hire an attorney in one part of the state when the divorce must be filed in another part. A brief appearance with travel time in the lawyer’s home county may take only one billable hour (at $100 to $250 and up per hour), while the same appearance in an adjacent county would take 3 billable hours, or as much as 16 billable hours in a remote part of the state, plus travel expenses to be billed to the client.
What is mediation?
Mediation is a settlement conference which is run by a person whose only job is to help the parties reach an agreement. The mediator cannot simply announce the terms of divorce, as an arbitrator could. The mediator cannot force anyone to do anything, and all proceedings are confidential.
Because judges view mediation as a "good thing," and because cases that settle do not clog up the court dockets with trials, you should expect your case to be ordered to mediation. If you reach an agreement before the mediation date, you will not have to pay for the mediator or for my fees attending mediation. But you cannot get to trial without at least trying mediation first. And it always surprises me how often parties that I thought were heading for trial were able to reach an agreement at mediation.
When parents can’t reach an agreement on custody, what standards do courts use to decide with whom the children should live?
When parents cannot reach an agreement regarding child custody, most courts try to decide custody based upon an analysis of what arrangement is in the best interests of the child. While statutes and standards differ from state to state, a best interests determination is usually reached by reviewing parental wishes, the mental and physical health of the parents, any history of domestic abuse, review of the child’s age and attachment to the parent that has been the primary caretaker, and the child’s wishes depending upon the age of the child and the motivation for the preference.
Can I get child support if I never married my child’s father?
Yes. Both of a child’s biological parents owe that child a duty of financial support. You can work with an experienced family law attorney and/or your state’s Child Support Enforcement office to obtain a support order. Don’t be surprised if the person you name as the father initially contests paternity and asks for a DNA test. Once paternity has been established a support order will be entered.
Are bonuses included in gross income when child support is calculated?
Yes. Money the obligor receives from any source, including bonuses and dividends from investments, is included as income. Even if one received a bonus last year and may not receive it this year, the court will often use the prior year's W-2 and Federal Income Tax Return to determine the child support amount.
If I am paying child support on two children and the first child graduates from high schools and is 18, will my child support decrease?
If your order establishing child support states that your obligation decreases when one child reaches 18, and states the stepped-down amount for the child support, then your child support will decrease to the stated amount. That decrease must also be stated in your wage withholding order which is issued at the time the child support order is put in place. Be sure that your order is written to include the step-down at the time of the divorce or the order being put in place.
Does the person paying the support have any say in how the money gets spent?
No. The person receiving the support has no obligation to account to the person paying regarding how the money gets spent. It may be used for any purpose.
May a person who is behind on child support still visit with the children?
Yes. The two issues, child support and visitation, are entirely separate according to the law. A parent may not withhold the children because the child support is not being paid. Likewise, a parent may not withhold child support because visitation is not being allowed.
If the paying person’s salary increases, does the child support increase?
No. Child support amounts do not increase or decrease automatically. The amount of child support only changes when a court modifies the order. If one would like to have the amount increased, the only way to do that is by filing a motion to modify with the court. The modification will only be granted if the new income amount is proven.
If the paying party loses his or her job, does the child support decrease?
No. See answer to "If the paying person’s salary increases, does the child support increase?, which applies in this circumstance as well. The key point to remember is that if you want the child support amount to change, you must do that through the courts.
Can I terminate visitation if I am not being paid the support I am owed?
No. Tempting as it may be to tie visitation to child support payments, they are separate considerations. Though lack of support can be financially devastating, it really is not in your child's best interests to make time with their other parent contingent on payment and doing so may subject you to legal difficulties if there is a court ordered visitation plan. Similarly, you may not stop paying child support if visitation is denied. If your child support is seriously behind, you should contact an experienced family law attorney or your state or county’s child support and enforcement office.
What is an income assignment?
In any proceeding in which child support payments are ordered, the court must order that income be withheld from the disposable earnings (out of the paycheck) of the person who is obliged to pay child support. That means that the employer of the person who pays is ordered to withhold the amount necessary to pay the monthly child support from each paycheck or whatever paycheck and withholding schedule is set up. The parties can agree not to file the order with the employer, and can file it later if the person who is obliged to pay stops paying.
How is property divided?
This is an extremely complex and detailed issue, and you should consult an attorney for a better answer. However, there are some guiding principles and guidelines that may be helpful. In an agreed divorce, which is most divorces, the property is divided according to whatever terms are agreed upon by the parties. However, the parties will agree based upon what they think is likely to happen if they go to trial and ask the court to divide the property.
The divorce court is supposed to make an "equitable" division of the marital property. This does not mean 50/50, although that is where most courts start before they begin hearing evidence.
In making a just and right division of property, the Court may consider a number of factors, including fault in breakup of the marriage, relative earning capacity of each spouse, the needs of any children, and other factors.
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