FAQ

The term “legal separation,” also called an action for “separate maintenance,” generally refers to one of two things. In lay terms, it refers to the “date of separation,” meaning the date on which the parties ceased living together as husband and wife. The term also refers to a type of marital dissolution proceeding that begins by filing a petition for legal separation rather than a petition for marital dissolution (i.e., divorce). With two exceptions, a judgment for marital dissolution and a judgment for legal separation have the same result.

Both judgments determine custody and visitation rights, child and spousal support rights, and divide joint and separate property. Both judgments result in the parties’ filing their income tax returns as single taxpayers.

The only differences are that (1) if you have a judgment for legal separation, you cannot remarry, and (2) the parties may still remain on the same insurance plan(s). Legal separation judgments are rare and are often only obtained when the spouses, for religious reasons, do not wish to terminate their marital status or when one of the spouses wants to continue carrying his or her former spouse on his or her group medical insurance.

Unfortunately, there is no way to know or to predict what a divorce will cost. In the final analysis, family law lawyers are highly paid plumbers. What they charge depends on how much of their time is required to resolve your case.

The amount of time a lawyer or a member of his or her legal team spends on your case depends on the complexity of the issues involved, what needs to be done to protect your rights, and, most importantly, the willingness of the parties to reasonably settle their case without having to go to court. Even if you have to go to court, your willingness to settle smaller issues without court involvement can save thousands of dollars.

In Oklahoma, when there are no minor children, there is a minimum ten (10) days’ time period between the date on which a Petition for marital dissolution is filed and the date on which marital status can be terminated (i.e., the decree is filed).

When there are minor children, that time period is expanded to ninety (90) days. Having said that, a termination of marital status at the end of ten (10) or ninety (90) days does not automatically happen, and marital dissolution cases generally take longer than that to resolve. Obviously, marital dissolution cases can take significantly longer if the issues are complex and the parties cannot settle the issues without going to court.

Moreover, depending on what the assigned judge’s docket looks like, there may be delays in getting matters resolved simply as a result of waiting for your case to be heard.

Often, though, if the parties have been separated for some time (even if a petition has not been on file for that entire period) and the parties have resolved all of their issues by agreement, the court may entertain a joint motion to waive the ninety (90) day waiting period, which can be granted for “good cause shown” or if the parties voluntarily participate in marital or family counseling and the court finds that reconciliation is unlikely. It is our goal to move your case along as quickly and as amicably as possible, keeping in mind that we will do whatever is necessary to protect your rights.

The court can base its decision on several factors, the two most important of which are the payor’s ability to pay and the recipient’s demonstrated need. These are essentially threshold questions the court must consider to establish an award for spousal support. (The adage “You can’t squeeze blood from a turnip” rings true here: if one party is broke and the other party can show a need, it does not necessarily matter; there is nothing to be distributed. By the same token, if one party is wealthy, but the other party is equally wealthy or just cannot demonstrate a “need” to the satisfaction of the court, spousal support may not be awarded.)

There are other factors the court may consider, such as length of the marriage, contributions to the marital estate, lifestyle, earning potential, health considerations, educational or vocational training needed to be gainfully employed, etc.

Regardless of what amount, if any, that a court awards, in Oklahoma, spousal support is never “permanent”; it will terminate upon a certain date (or amount paid), as well as upon the recipient’s remarriage, cohabitation with a paramour, or his / her death, or the death of the payor, if any of those events occurs before the termination date set by the court in the decree.

In Oklahoma, attorney fees can be awarded in the interim of a case (“interim suit monies”) if it is necessary for one spouse to adequately litigate their case and the other party has sufficient funds / sources available and / or if the other party has had some sort of wrongdoing which requires, e.g., the retaining of an expert. More often than not, attorney fees are required to be requested after the case is completed and a decree is on file.

It requires the filing of an Application for Attorney Fees, a memorandum brief, and an affidavit by the attorney as to why an attorney fee award is appropriate in this matter. This request must be filed within thirty (30) days of the finalizing of the divorce, though, or it is considered “waived.”

If the parties filed in different counties or states, there may be other jurisdictional considerations regarding which court has jurisdiction over both the type of case (“subject matter jurisdiction”) and the people involved (“in personam / personal jurisdiction”). Obviously, having to attend court and litigate your case in another county or state could be costly and a substantial disadvantage, so if there is a likely chance that the other party may file and he or she lives in another county or state, it may be strategic to file first to keep the case local.

For example, the answer to the question changes dramatically if one spouse added the other spouse’s name to the title of his or her separate property. Similarly, a different result may occur if a spouse’s separate property was sold, spent, or hopelessly commingled with joint property during marriage. Separate property can become partially joint property if it increased in value during marriage due to the effort or genius of one of the spouses. Whether you actually get back your separate property depends on the specific facts in your case.

These cases are difficult because, if support is properly calculated, there are potential income tax implications. In this situation, both spouses need to listen very carefully to an experienced family law practitioner, who will undoubtedly recommend that a qualified forensic accountant be hired. In order for the court to set a proper level of support, evidence must be presented establishing what the paying spouse’s true income would have been had he or she kept proper financial records.

Moreover, for purposes of child support, Oklahoma statutes permit the court to average a party’s last three (3) years’ income so that he or she is not being unfairly caught on their best or worst year.