Filing the Petition (OK STATUTE 43-105): The legal document that actually initiates a divorce is called a Petition, which is filed with the Court Clerk (COURTS AND CLERKS). The person filing the petition is called the Petitioner and the responding party is called the Respondent. You must live in Oklahoma for six (6) months before you can file for divorce. The petition may be filed in the county court in which your spouse currently lives or where you have lived for the last thirty (30) days. After the petition is filed with the court, copies of the Petition, along with a Summons, and an Automatic Temporary Injunction must be served to the Respondent. After service, the Respondent has the opportunity to admit, deny, and question statements made in the petition or add new statements of their own (OK STATUTE 43-106).
Summons and Automatic Temporary Injunction (OK STATUTE 43-110-A): The Summons is official notice that a court action has been filed against you. The Automatic Temporary Injunction goes into effect after successful service of the documents to the Respondent and restrains both parties from:
- selling, giving away, or damaging anything of value, including any property, text messages, social media posts, or financial records;
- withdrawing money from any retirement, pension, or IRA account;
- cashing out or in any way altering life, casualty, auto, or health insurance policies;
- opening the other party’s mail;
- taking the minor children out of school;
- hiding the children from the other spouse;
- taking the minor children across state lines; and
- negotiating or signing any financial documents for the other spouse.
Further, the Automatic Temporary Injunction requires the parties to exchange:
- tax documents;
- the last two months of pay stubs;
- the last six months of bank statements;
- health insurance information;
- all information related to child care expenses; and
- documents relating to all debts of the parties.
The injunction is waivable if both parties agree in writing to do so, but this is rarely done.
Temporary Orders (OK STATUTE TITLE 43-110-B): While the divorce is pending, either party may request the court to issue a Temporary Order. The Temporary Order governs the parties until a final resolution is reached in regards to:
- child custody, support, and visitation;
- the repayment of debt;
- possession of property;
- attorney’s fees; and
- other injunctive relief.
The parties are bound by the temporary orders and automatic temporary injunction until the divorce is finalized and a decree is issued.
What to Put in the Petition: The Petition is the document that informs the court of the Petitioner’s desire to end the marriage. After identifying the parties and stating the grounds for divorce, the petition contains Petitioner’s specific requests in regards to child custody, visitation, child support, property division, and alimony.
Grounds (OK STATUTE TITLE 43-101): The petition must state the grounds for divorce. The most common grounds are Incompatibility, Adultery, and Abandonment for one (1) year. If Incompatibility is the reason for divorce and children under eighteen (18) are involved, the adults will be required to attend an education program before the divorce will be granted (OK STATUTE TITLE 43-107.2).
Child Custody – The policy of the state of Oklahoma is to assure parents equal access to the child when the parents act in the best interest of the child and can raise the child responsibly (OK STATUTE 43-110.1). If equal access is not in the best interest of the child or the parties cannot agree on custody, the court will hold a hearing to determine what is the best interest of the child (OK STATUTE TITLE 43-112). The court may grant custody to either parent or to the parents jointly. In a joint custody arrangement, both parents decide together all major parenting decisions and an agreed custody plan is filed with the court. At either party’s request, the court will modify the plan if it is in the best interest of the child (OK STATUTE 43-109).
Child Visitation – As with child custody, the court prefers to allow the parents equal access to the children where possible. In most cases, the parent who does not get custody will have a right to visitation. Typical visitation schedules provide for visits with the non-custodial parent every other weekend, every other major holiday, and alternating periods during summer (OK STATUTE 43-111.1A). If the non-custodial parent is determined to be unfit due to abuse of the child, abuse of the other party, or drug and alcohol abuse, the court may restrict visitation or order supervised visitation (OK STATUTE 43-110.1a).
Child Support – The amount of child support is determined by law and is based on the following:
- income of the parents;
- needs of the child including food, clothing, health insurance, school and day care expenses; and
- number of overnights spent with each parent (OK STATUTE 43-118D)(DHS CHILD SUPPORT COMPUTATION FORM).
Property Division (OK STATUTE 43-121) – If the parties cannot agree on how property is to be divided, the court will decide for them. When determining what is fair, the court may consider: who uses the property, any debt associated with the property, sentimental attachment to the property, vindictiveness and cooperation of the parties, and the overall equitable allocation of property. Keep in mind that equitable means fair, not equal, and the court’s discretion usually results in disappointment on both sides.
The court will use three methods to divide property. “In kind” division means that each party gets one half of whatever the property is. For example, if there are two couches in the house, each party will get one. “Set-off” division means that one party gets the DVDs and the other party gets the PlayStation. “Alimony in lieu of property” is money for stuff. For example, the court will award one party the painting whose value has increased by $2,000 since the couple bought it on THAT vacation in Tuscany and the other party gets $1,200.
Big ticket items like the house, vehicles, and antiques will likely need to be appraised. It is best for the parties to agree beforehand how to divide smaller items because every dispute is going to cost exponentially more money than the item is worth when you factor in court costs, attorney’s fees, and time off work.
Alimony – Alimony is the money one party must pay the other for support. To determine the amount of support, the court will consider the length of the marriage, the needs of the parties, the ability of the receiving party to get and maintain employment, and the ability of one party to pay, among other factors. (OK STATUTE 43-134)
Decree – Once the parties have agreed on what they are going to agree on and the court has ruled on the rest, the attorneys draft an order memorializing the agreement and the court’s rulings. After a statutorily mandated six (6) month waiting period, the parties are free to marry again! (OK STATUTE 43-127)
The best way to ensure your divorce goes as smooth as possible is to get the advice of an attorney. Call Naidu Law to schedule a consultation today!