A legal separation looks a lot like a divorce, but the couple remains married. One purpose of a legal separation in the state of Oklahoma, as well as in other states, is to allow the parties time to decide whether to try to make their marriage work or to end it once and for all. Anyone considering terminating a marriage in Oklahoma will need to understand the difference between a legal separation and a divorce, and learn the steps to take if they opt for a solution short of divorce. The laws about these issues are found in Oklahoma Statutes Title 43.
What Is a Separation?
When a married couple have problems serious enough to cause them to contemplate divorce, the first step is usually separation. That means that the parties move into separate residences, living apart. This can be informal or formal, and can last for a few weeks or a longer period of time, even years.
The most common type of separation in Oklahoma and in most states is the informal one. A couple may argue and decide to split up or simply decide they no longer wish to live together. One moves out. That is all it takes for an informal separation, which usually happens when a couple is contemplating divorce. If there are minor children involved, the matter is more complicated since arrangements must be made for financial support and child custody and visitation.
However, it is also possible, and sometimes more advantageous, to file for a legal separation in Oklahoma. This is a legal status overseen by a court, and the procedure looks more like a divorce. Issues such as child custody, child support, spousal support and division of property are presented to the court, with each party making their arguments. Once a legal separation is granted, the couple is effectively divorced, but there is one big difference: They are still technically married. That means that although they live apart and have separate finances, neither is legally free to marry someone else.
Informal Separation vs. Legal Separation
Both informal and formal separation means that a married couple has decided to live apart. But with an informal separation, no legal filings or court papers are required. All that is necessary is that one party moves out and makes new living arrangements. Since a legal separation is a marital status granted by the court, court action is mandatory.
Under Oklahoma family law, the process of getting a legal separation looks a lot like the procedure for divorcing. It starts when one or both of the spouses file a petition for legal separation with the court. (There is a filing fee to pay.) Generally, it is best if the couple agrees on how to divide assets and debts, as well as child custody, visitation and family support matters. But failing that, the court will hear and determine these issues, just like in a divorce case. The more issues a couple can mutually resolve in advance, the easier, cheaper and faster they will be able to get a legal separation.
What happens if one party decides they want to remarry? Since a couple remains technically married after obtaining a legal separation, remarriage is not possible. The parties would have to first convert the legal separation to a divorce. In Oklahoma, there is an additional six-month waiting period before remarriage.
Reasons to Choose Legal Separation
In Oklahoma, as elsewhere, couples choose legal separation over divorce for a variety of reasons. While many people prefer to divorce, legal separation is a more acceptable solution for those who have religious reasons to object to divorce or feel that they or their children may be stigmatized by it. But that's not the only reason.
Some couples share family health insurance plans and may want the spouse without separate insurance to stay on the plan. Insurers often allow a separated couple to keep the same plan at the same cost, while this is not possible after a divorce.
In addition, in a legal separation, inheritance rights between the parties are preserved, as are the marital tax benefits. Perhaps most important, a legal separation gives the couple time to plan and prepare for a final divorce. It is seen as a sort of trial run, so the couple can see if they are happier living apart or not. This is especially important in Oklahoma since a Decree of Divorce is absolutely final in the state. That means that the couple cannot change the marital property division once the divorce case is complete. However, in Oklahoma, a couple can change the terms of a separation agreement at any point during the separation.
Procedure for Oklahoma Legal Separation
Oklahoma laws and procedures about legal separations piggyback on the laws and procedures for divorce. The two are handled in the same manner, with virtually identical forms, however, Oklahoma divorce laws impose a residency requirement for a divorce.
That is, in order to file a petition for a divorce, one of the spouses must have resided in Oklahoma for at least six months. Plus, one spouse must have lived for at least 30 days in the county in Oklahoma where the divorce is filed. In addition, the court cannot grant a divorce decree until at least 90 days after the filing of the petition. This is termed the waiting period. These restrictions do not apply to a legal separation, which can be filed the day after a couple arrives in the state and granted the same day it is filed.
Grounds for Legal Separation
Oklahoma laws allow both divorce and legal separation to proceed on a no-fault basis. This is by far easier than a fault-based legal separation where one spouse must plead and prove one of the permissible grounds, which might include anything from incompatibility to adultery, abandonment for a year to impotency, pregnancy by another person, domestic violence or extreme cruelty, habitual drunkenness, fraud, insanity for five years or neglect.
Given the availability of the simpler procedure, most couples filing for legal separation go the no-fault route. This means that neither party has to specify any reason for the breakup to get a legal separation.
Oklahoma Legal Separation Agreement
When a couple decides to proceed by legal separation in Oklahoma, they must prepare and file a separate paper called a Separation Agreement with the court. In this document, they set out the terms of the separation. This should include child custody and visitation schedules, property division including which spouse gets which assets, and who is responsible for debts. It should also set any spousal support payments and any other rules or restrictions.
These are sometimes difficult matters to resolve. It is best for both spouses to work on, and agree to, the terms of the Separation Agreement together, often with the help of separate attorneys representing their interests. It is possible also to prepare the agreement without the assistance of an attorney by downloading a template that is valid in Oklahoma.
A mutual agreement as to the terms of the separation means a quicker resolution, less stress and fewer arguments. If both spouses sign and notarize the legal separation agreement, the court will tell the clerk to enter it into the court records. A joint separation agreement that looks to be fair and reasonable will usually be approved quickly by the judge, and the court clerk will issue an order for legal separation.
Filing for Separation if Issues Are Unresolved
What happens if the spouses cannot agree on these issues? It is still possible to file for a legal separation when only one spouse prepares and files the legal separation agreement. However, as with an Oklahoma divorce, the judge will hear the arguments on each side of each issue before rendering a decision. If the spouses cannot agree, the issues will be litigated, making the process longer and more expensive if attorneys are involved.
Process of Legal Separation Trial
If the parties do not agree to the terms of separation, the matter is deemed contested. In order for the court to resolve the outstanding issues, the case will proceed like every other contested case in Oklahoma. The parties will have to undertake discovery, the process of exchanging information. One of the primary issues for discovery will be financial matters, and the parties will be asked to exchange records like paycheck stubs, bank records, tax returns, credit card statements and business records in order for the court to have all assets and debts before them.
The discovery exchange may also include matters about the children and their requirements. The court will want to know how each party plans to be able to meet the needs of the children and to understand the quality of each spouse's relationship with each child.
In the end, the judge will determine the property division in accordance with Oklahoma law. It will determine custody, visitation and alimony or support issues by seeking a solution that is in the best interests of the children. In some Oklahoma counties, the court requires a couple who cannot agree on legal separation issues to participate in mediation sessions. In this process, both parties speak with a neutral third party who is knowledgeable as to Oklahoma divorce law and helps the parties to understand what will happen if the matter is litigated.
Separation Orders Impact a Dissolution of Marriage
While the terms of an informal separation agreement do not impact a divorce, the terms of a legal separation order may influence divorce terms later. That is because a judge considers the same factors for both a legal separation and a divorce in Oklahoma. Financial issues and spousal support are similar in both procedures, since the court considers each spouse's earning potential, work history, financial needs and ability to pay family support before making a determination. Absent a dramatic change of circumstances, a court granting an Oklahoma divorce after an order for legal separation is not likely to disturb the earlier orders.
A legal separation has the most impact on divorce issues of child custody, since the best interests of the children are at the heart of both decisions. The court must evaluate the best interests of the children in a disputed separation proceeding, considering all factors including each parent's relationship with the child, the child's needs, each parent's ability to meet those needs, the child's adjustment to school and community, and the child's relationship with siblings and extended family. These same issues and the same supporting evidence are relevant to child custody in a divorce. Of course, when children do well during a separation period, a court is likely to keep the same custody arrangement in a divorce.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.