Divorce is a significant step and sometimes spouses like to take it slowly. Not all states recognize legal separation, however, a judicial process that governs your responsibilities and obligations until you're ready to end your marriage entirely. Oklahoma does and the process can pave the way for divorce or your decree of legal separation can last indefinitely. Separation is not a prerequisite for terminating your marriage by divorce.
In Oklahoma, legally separating is a process much like asking the court for a divorce. You must file a petition to initiate the proceedings; the court then resolves your marital issues unless you and your spouse can reach an agreement on your own. You're still legally married after you receive a decree of legal separation. Therefore, there may be property division implications. However, since your separation decree isn't final like a divorce decree is, you can modify any property division terms when you ultimately divorce.
Read More: What Are the Benefits of Legal Separation Vs. Divorce?
Rules for Divorce
If you decide to divorce rather than legally separate, you or your spouse must live in Oklahoma for at least six months before you file. Oklahoma recognizes both fault and no-fault grounds. The court can resolve issues for you at trial, or you and your spouse can reach your own agreement. If you have children, the state imposes a waiting period for divorce of 90 days from the date you file your petition, even if you resolve your marital issues in the meantime. If you don't have children, this period is shortened to 10 days. In either case, the court can waive the requirement for good cause. An ATI, or automatic temporary injunction, remains in place throughout the waiting period or, if your divorce is contested and takes longer, until it is final. The ATI prohibits you or your spouse from doing such things as dissipating marital assets or making changes to insurance policies or retirement plans.
Whether you separate or divorce, Oklahoma courts resolve property issues according to the principles of equitable distribution if you can't reach an agreement on your own. This means the court may award either you or your spouse more than half of your marital property or more than half of your marital debt. In accordance with equitable distribution standards, the judge will divide marital property and debts in a way that is fair based on the circumstances. Your spouse has no claim to your separate property – that which you brought into the marriage or received through an inheritance or as a gift. An exception exists if you muddied the waters of your separate ownership, such as if you titled a particular asset in joint names or deposited your separate money into a joint marital account.
Oklahoma law recognizes alimony, but one spouse must genuinely require it to make ends meet and the other must have the ability to provide it without seriously compromising his own lifestyle. The idea is that neither spouse should live in poverty while the other lives well. The state does not have a mathematical formula for calculating the amount of alimony – it's up to the discretion of your judge. Courts can order alimony during a separation or as part of divorce proceedings.
A child support order can be part of a divorce decree or a decree for legal separation and Oklahoma's statutes include a formula for calculating the amount. The state uses the income shares model. This model adds both parents' incomes together then sets aside a portion of the total for the benefit of their children. The court can adjust this number for things such as work-related daycare or because children from other relationships also require their parents' support.
A separation decree doesn't allow you to remarry because it doesn't legally terminate your marriage. Your divorce decree doesn't allow you to immediately remarry either. Oklahoma law states that you must wait six months after your divorce is final, unless you remarry your spouse. You can marry in another state, but if you do and then return to Oklahoma to live with your new spouse during the six-month waiting period, you're technically guilty of felony adultery. Your divorce isn't recognized for remarriage purposes until the waiting period expires, so your second marriage is temporarily illegal.
- Michelle K. Smith: Oklahoma Contested Divorce FAQ
- Kania Law Office: Divorce Under Oklahoma Law
- Atkins & Markoff: Oklahoma Legal Separation Versus Divorce
- National Conference of State Legislatures: Child Support Guideline Models by State
- HG.org: U.S. Divorce Law Center – Legal Separation
- Kania Law Office: Separations Oklahoma
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.