Divorce in Oklahoma: The Legal Process, Your Rights, and What to Expect

by Mark Antinoro

Overview

Providing accurate and objective information to help make the right decisions during a divorce in Oklahoma, this guide provides answers to more than 350 queries such as How quickly can one get a divorce? Is it possible to get divorced if one spouse does not want a divorce? What does it mean for Oklahoma to be a community property state? Who decides who gets the cars, the pets, and the house? What factors might influence child custody? and How are bills divided and paid during the divorce? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

Product Details

ISBN-13:	9781943886074
Publisher:	Addicus Books
Publication date:	01/30/2017
Series:	Divorce In Series
Pages:	250
Product dimensions:	5.40(w) x 8.40(h) x 0.50(d)

About the Author

Mark Antinoro is a member of the Oklahoma and Rogers and Mayes County Bar Associations. He has been admitted to practice before the United States District Court for the Northern, Eastern and Western Districts of Oklahoma, and the Tenth Circuit. He earned his Baccalaureate Degree from Albertus Magnus College in New Haven, Connecticut and his Juris Doctorate from the University of Tulsa College of Law. Mark is an AV-rated lawyer, which is the highest rating that a lawyer can receive. He is a Commissioner on the Judicial Nominating Commission and was elected by his fellow lawyers to represent seventeen (17) counties in Northeastern Oklahoma. He has been named a rising star by Super Lawyers of Oklahoma, one of only about forty in Oklahoma. Mark currently serves as the City Prosecutor for several municipalities. His areas of concentration include criminal defense, condemnation, domestic relations, and personal injury. He primarily practices in the following Northeastern Oklahoma counties: Mayes, Rogers, Tulsa, Craig, Wagoner and Delaware. He has been involved in a wide variety of litigation from representing a plaintiff in a lawsuit filed against Big Tobacco in federal court to protecting his clients rights in small claims actions. He works hard and that diligence has produced successful jury verdicts for his clients in both criminal and civil cases. He is a certified mediator and the perspective allows him to better evaluate his client's own cases.

Read an Excerpt

Divorce in Oklahoma

The Legal Process, Your Rights, and What to Expect

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By Mark Antinoro

Addicus Books, Inc.

Copyright © 2017 Mark Antinoro
All rights reserved.
ISBN: 978-1-943886-56-2

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CHAPTER 1

Understanding the Divorce Process

At a time when your life can feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, driving up your fear and anxiety.

Develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about "depositions" or "going to trial" and you feel your heart start pounding in fear. Understanding the divorce process can reduce your frustration about the length of the process because you understand why each step is needed. Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn't prefer that?

1.1 Must I have an attorney to get a divorce in Oklahoma?

You are not required to have an attorney to obtain a divorce in Oklahoma. However, if your case involves children, alimony, significant property, or debts I would strongly urge you to hire an attorney.

If your divorce doesn't involve any of the items listed above, there are kits that you can buy on the Internet to complete a divorce, but be advised that these kits have limitations and the author is not recommending them. Of the three law schools in Oklahoma, two have legal clinics that may provide some aid in a divorce: the University of Oklahoma law school and the Oklahoma City University School of Law. Legal Aid of Oklahoma is a nonprofit organization that will help women indivorces if there are issues of domestic violence, but otherwise they are not available for divorce assistance.

If you are considering proceeding without an attorney, at a minimum have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations about which you are unaware. Meeting with a lawyer can help you decide whether to proceed on your own.

1.2 What is my first step?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation.

Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.

Ask what documents you should bring to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.

1.3 Is Oklahoma a no-fault state or do I need grounds for a divorce?

Oklahoma, like most states, is a no-fault divorce state. This means that neither you nor your spouse is required to prove that the other is "at fault" in order to be granted a divorce. Oklahoma provides twelve separate grounds for divorce, which include adultery, extreme cruelty, or abandonment. Alleging these grounds and actually being awarded a divorce based on these grounds is quite rare. However, it may benefit you to request a divorce based upon one of these specific grounds. Discuss this possibility with your lawyer. Keep in mind, a divorce and the documents associated with it are matters of public record. Although you might be very angry with your spouse right now, consider the long-term implications. For example, your small children may one day read that you requested the divorce because your spouse cheated on you.

The overwhelming number of divorces in Oklahoma are granted on grounds of irreconcilable incompatibility. In otherwords, you cannot get along. The court for the most part is not interested in why you are divorcing unless, for example, the reason may have some impact on the children.

The testimony by you or your spouse is likely to be sufficient evidence for the court to rule that the marriage should be dissolved. This testimony, usually given by the spouse who filed for the divorce, will state that efforts at reconciliation were made, that those efforts were not successful, that further attempts would not be beneficial, and that the marriage is irretrievably broken.

1.4 Do I have to get divorced in the same state I married in?

No. Regardless of where you were married, you may seek a divorce in Oklahoma if the jurisdictional requirements of residency are met.

1.5 How long do I have to have lived in Oklahoma to get a divorce in the state?

Either you or your spouse must have been a resident of Oklahoma for at least six months to meet the residency requirement for a divorce in Oklahoma. If neither party meets the residency requirement, other legal options are available for your protection. If you do not meet the residency requirement, talk to your attorney about options such as a legal separation, a petition for a custody and support order, or a protection order.

1.6 My spouse has told me she will never "give me" a divorce. Can I get one in Oklahoma anyway?

Yes. Oklahoma does not require that your spouse "agree to" a divorce. If your spouse threatens to "not give you a divorce," know that in Oklahoma this will not stop the divorce from going forward.

Under Oklahoma law, to obtain a divorce you must be able to prove that what exists between the two of you is irreconcilable incompatibility. Evidence of this will be your testimony on the witness stand.

The Divorce Process

The divorce process in Oklahoma typically involves the following steps.

If you are initiating the divorce:

• Obtain a referral for a lawyer.

• Schedule an appointment with an attorney.

• Prepare questions and gather necessary documents for an initial consultation.

• Meet for an initial consultation with an attorney.

• Pay the attorney a retainer and sign a retainer agreement.

• Provide requested information and documents to your attorney.

• Take other actions as advised by your attorney, such as opening or closing financial accounts.

• Attorney prepares the summons and notice of automatic temporary injunction and petition for dissolution for your review and signature.

• Attorney files the summons and petition with the clerk of the court.

• Attorney has process server serve summons and petition on the respondent.

• If you need more immediate help in areas such as temporary child support, spousal support, or attorney fees, your attorney prepares an application for temporary orders for your review and signature, files with the court, obtains court date, and serves pleadings on respondent.

If you have been served with divorce papers:

• Obtain a referral for a lawyer.

• Schedule an appointment with an attorney.

• Prepare questions and gather necessary documents for an initial consultation.

• Meet for an initial consultation with an attorney.

• Pay the attorney a retainer and sign a retainer agreement.

• Provide requested information and documents to your attorney.

• Take other actions as advised by your attorney.

• Attorney prepares a response to the summons and petition for your review and signature.

• Attorney files your response and counterclaim with the clerk of the court within twenty days of service of the petition and summons on you.

• You may file your own application for temporary orders.

• If you are served with requests for a temporary order, attorney prepares your response to these papers.

After the divorce process has been started and the response has been filed:

• One or both of the attorneys often will send out discovery, questions and requests for certain documents that you and your attorney will work on producing.

• Negotiations begin regarding temporary custody and visitation, child and spousal support, payment of debts, and attorney fees.

• If there are minor children, both parties are required prior to the divorce being finalized to attend a Parents Helping Children Cope with Divorce Seminar and in some counties you may also have to attend a presentation by a judge who urges you and your spouse to get along for the sake of your children.

• Court holds hearing(s) on requests for temporary relief.

• Either the parties reach an agreement or the court issues temporary orders.

• Temporary order is prepared by one attorney, approved as to form by the other attorney, and submitted to the judge for signature.

• If discovery has not been sent out, it likely will be, with both sides sending their questions to the other and possibly sending subpoenas to people or companies who are not part of the divorce to obtain additional information.

• You confer with your attorney to review facts, identify issues, assess strengths and weaknesses the of case, review strategy, and develop a settlement proposal.

• Spouses, with the support of their attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other forms of negotiation.

If you reach an agreement on all issues, then:

• One attorney prepares marital settlement agreement and necessary judgment paperwork.

• Both parties and their attorneys sign agreement and all necessary paperwork.

• Judgment paperwork is filed with the court.

• Either the parties waive the court date or the court holds a brief, final hearing.

• A decree of dissolution of marriage is entered and you will be divorced.

• Your attorney completes necessary orders and supervises the property transfer until all agreed terms are satisfied.

If you are unable to reach an agreement on all issues, then:

• Your attorney completes all necessary discovery in order to bring the case to its trial-ready point.

• Your attorney files a request to have an application for a pretrial conference and typically the attorneys speak to the judge about the merits of the case and a trial date is usually given. (Some judges will order you to attend mediation sessions at this point before giving you a trial date.)

• If agreement has been reached on any issues, your attorney prepares a stipulation on those issues. All other issues are set for trial.

• You work with your attorney to prepare your case for trial.

• Your attorney prepares witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial briefs, direct and cross-examination of witnesses, opening statements, witness subpoenas, and your closing argument.

• You meet with your attorney for final trial preparation.

• Trial is held.

• Some judges will issue a decision at that time, but in many cases the judge will take the matter under advisement. Typically, a judge will render his or her written decision that he sends to the parties' attorney within two weeks. However, by statute a judge is required to render a decision within sixty days of taking a matter under advisement.

• After the judge renders his or her decision, it is more formally written up by one of the attorneys, typically the attorney for the petitioner (the party who filed for divorce). The decree of dissolution must be signed by both attorneys.

• If the attorneys cannot agree on certain areas where the judge was not clear or if there is a disagreement, a motion to settle is filed and another court date is held where the judge resolves the areas that are in dispute.

• The judge signs the decree of dissolution of marriage.

Your posttrial rights are discussed in chapter 16.

1.7 Can I divorce my spouse in Oklahoma if he or she lives in another state?

Provided you have met the residency requirements for living in Oklahoma for six months, you can file for divorce here even if your spouse lives in another state. If both of you have lived in more than one state in the last six months and you have children, an issue can arise that involves the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). This is a national compact that most of the states have entered into, and you will need to discuss the UCCJEA with your attorney because it can be fairly complex.

1.8 How can I divorce my spouse when I don't know where this person lives now?

Oklahoma law allows you to proceed with a divorce even if you do not know the current address of your spouse. First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Utilize resources on the Internet that are designed to help locate people.

Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse's last known address, as well as any work address or other address where this person may be found. Once your attorney attempts to give notice to your spouse without success, it is possible to ask the court to proceed with the divorce by giving notice through publication in a newspaper.

Although your divorce may be granted following service of notice by publication in a newspaper, you may not be able to get other court orders, such as those for child support or alimony, without giving personal notice to your spouse. As a matter of caution, understand that a divorce that is finalized without ever formally serving your spouse with divorce papers is called a default divorce and it is subject to being vacated (undone) at a later point. If, for example, your spouse could show that you knew or should have known where to find him at the time the divorce was granted, the divorce could later be vacated. Talk to your lawyer about this issue.

1.9 I just moved to a different county. Do I have to file in the county where my spouse lives?

You may file your divorce petition either in the county where you reside or the county where your spouse resides. However, if a dispute develops over which county has jurisdiction it is likely the county where you and your spouse lived together will be the county for the divorce. If you have children the court will likely look to which county the children have had the most contacts within the last six months.

1.10 I immigrated to Oklahoma. Will my immigration status stop me from getting a divorce?

If you meet the residency requirements for divorce in Oklahoma, you can get a divorce here regardless of your immigration status. Talk to your immigration lawyer about the likelihood of a divorce leading to immigration challenges.

If you are a victim of domestic violence, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act.

1.11 I want to get divorced in my Indian tribal court. What do I need to know?

At this time, Oklahoma does not recognize tribal divorces, so you will still need to go through the divorce process at your local county courthouse.

1.12 Is there a waiting period for a divorce in Oklahoma?

Yes. Oklahoma has a mandatory ninety-day waiting period if you have minor children. The ninety-day period can be waived if both parties agree and the judge also agrees. If the parties do not have minor children and they agree to the divorce there is a ten-day waiting period. You cannot remarry for six months.

1.13 What is a divorce petition?

A divorce petition, also referred to as a pleading, is a legal document signed by the person filing for divorce and filed with the clerk of the court to initiate the divorce process. A petition will explain in very general terms what the plaintiff is asking the court to order. See the Sample Petition in the Appendix.

1.14 My spouse said she filed for divorce last week, but my lawyer says there's nothing on file at the courthouse. What does it mean to "file for divorce"?

When lawyers use the term "filing" they are usually referring to the physical act of taking legal documents to the courthouse, such as the petition for divorce. It is handed to the clerk of the court and the clerk affixes their stamp on it, proving that it has been filed. Sometimes a person who has hired a lawyer to begin a divorce action uses the phrase, "I've filed for divorce," although no actual papers have yet been taken to the court house to start the legal process. Until the filing fee has been paid and the clerk puts his or her stamp on the petition you haven't actually "filed."

1.15 If we both want a divorce, does in matter who files?

There is a common misperception that by filing first you gain some advantage. Unless you are requesting some type of emergency relief or a victim protective order (which will be discussed later), there is no advantage to filing first. In fact, by filing first you would pay the filing fee, which is approximately $210 and the service of process fee of usually $60 to $75.

(Continues...)

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Excerpted from Divorce in Oklahoma by Mark Antinoro. Copyright © 2017 Mark Antinoro. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Introduction vii

1 Understanding the Divorce Process 1

2 Coping with Stress during the Divorce Process 20

3 Working with an Attorney 29

4 Attorney Fees and Costs 39

5 The Discovery Process 51

6 Mediation and Negotiation 61

7 Domestic Violence and Victim Protective Orders 69

8 Child Custody 75

9 Child Support 95

10 Alimony 104

11 Division of Property 109

12 Benefits: Insurance, Retirement, and Pensions 123

13 Division of Debts 129

14 Taxes 135

15 Going to Court 141

16 The Appeals Process 150

Appendix 155

Resources 165

Glossary 169

Index 173

About the Author 185