F.A.Q.
One of the first lessons in a divorce is that you make your own decisions. Get advice, but do not let anyone make your decisions for you. Judges will often people in the courtroom something such as, "You each care about how this ends because it's your life. You care much more than I do, so when you can negotiate and settle, you have control. If it comes to me and I have to decide, it is likely both of you will dislike my decision, so go work on settling your differences."
A lawyer should tell you 3 things:
- What you have to do because the law says you have to.
- What you can do because the law allows you to.
- What the judge is likely to do based upon the lawyer's experience.
Whatever you choose to do, make sure you understand the consequences of your decisions. This is your life and no one but you has to be okay with the decisions you make. Be informed and then go make the decisions that are best for you.
We have numerous videos that go into depth explaining the pros and cons of going to trial for the judge to decide your case. These videos are included with the Gold and Platinum packages.
The Petition must have been on file for at least 10 days when no minor children are involved and for 90 days when minor children are involved. When children are involved, both parents must take a 4-hour co-parenting class. If you find one online that promises that Okahoma courts accept their classes or your money back, make sure you confirm your county will accept the course before paying. Those mone-back guarantees don't mean anything.
- The number of children.
- Gross income (pre-tax, deductions, etc) from both parties.
- The number of overnight visitations to the non-custodial party.
- Which parent pays for health insurance or SoonerCare.
- Childcare expenses.
- Visitation-related transportation expenses.
- Ongoing medical costs (out-of-pocket costs not covered by any insurance)
- Court-ordered support alimony paid in a prior case.
- Court-ordered monthly adjustment for marital debt.
- Court-ordered monthly child support actually paid for qualified out-of-home children. (i.e., children from a prior marriage/relationship)
- SSA Title II benefits or VA Benefits paid to the children, not SSI benefits.
Simple Answer: Any retirement account, pension, 401(k), annuity, etc. created and funded during the marriage is a marital asset and should be divided by the court.
We use retirement account to refer to all the different possible retirement investment options available such as 401(k), pension, IRA, Rother IRA, annuity, etc.
When it comes to retirement accounts there are often multiple accounts to consider.- Did the retirement account exist only during the marriage?
- If the retirement account existed before the marriage, what was the value of the account(s) on the date of the marriage?
- When did the parties separate and what was the value of the account on the date of separation?
Even if there is only one account per person, the courts are not going to split them both. The court will determine what is needed to make the values in each even.
For example, if husband’s account has $100,000 and wife’s retirement account has $80,000, then together the total is $180,000. To make these accounts even, each person needs $90,000. The judge could order $10,000 from the husband’s account be moved to the wife so that each now has $90,000.00.
READ MOREWhen there are many retirement accounts, the Courts will usually add up the value of all accounts for each person and determine what the difference is in value. Then by determining one-half of this difference and transferring that amount to the spouse with a less retirement account value to make the accounts even.
Where a retirement account existed before marriage, the value of that retirement account on the date of marriage will need to be determined because the portion of the retirement account that existed before the marriage is not marital property and cannot be divided.
In situations where an account existed before marriage, there are additional issues to consider.
Dave started working for OG&E on March 3, 2002. He started his 401(k) on his first day of work. On December 5, 2010, Dave marries Helen. As of December 5, 2010, Dave has $10,000.00 in his 401(k). Dave and Helen have a fight on their 10th anniversary and Dave moves out. Helen files for divorce on January 18, 2020. As of December 5, 2010, Dave’s 401(k) is valued at $25,000.00.
Dave has never done anything to manage the 401(k) and had the 401(k) administrator invest the 401(k) assets for him. It might seem obvious that the marital portion of Dave’s 401(k) is $15,000, by subtracting the value of $25,000.00 on the date of separation, December 5, 2020, from the value at the time of the marriage 10 years earlier, which was $10,000, leaving $15,000 as marital property.
But even if you stop investing in a 401(k) it will continue to earn a return on the assets already there. So if Dave had stopped investing in the 401(k) when he married Helen, the 401(k) would be worth more 10 years later without doing anything. Logically, if the $10,000 that Dave has in the account when he got married grows, then the growth should belong to Dave separately too. It was not co-mingled.
It would be great if retirement accounts were simple, but they’re really not. While maybe a relatively short marriage of 10 years would not see a significant difference when accounting for the growth of Dave’s separate portion of his retirement account, when you get into the growth of a retirement account over 25-30 or more years, the growth of that initial, separate portion can be tens of thousands of dollars.
Often one party will say, “Let’s just each keep our retirement accounts.” While that is okay, you may not realize how much is in the other person’s retirement account. Courts want to make sure that all decisions by the parties are made based upon having all of the information about the assets and debts of the marriage. Even if you are okay with not separating retirement accounts, it is a good idea to get statements for every retirement account so that you both know how much you each have. You might be surprised to find out just how much is in each account and how much you are giving up by not splitting them fairly.
Yes, so long as you were married to the military servicemember while the servicemember was in the military.
This may be obvious, but if your spouse served in the military but did not serve 20 years, then there will be no retired pay. Also, when a servicemember gets a disability rating, sometimes the servicemember must waive their right to a portion of their retirement in order to get the disability payment.
The traditional scenario is this: Couple marries young, one spouse goes into military service, serves 20 years, then retires. Some years into the future, the couple divorces and the retired pay should be divided between the parties. In this case, it’s pretty simple because after 20 years of service, the non-serving spouse is going to get 50% of the entire retired military pay.
THE CONFUSING 10-10 RULE
The 10-10 rule for military retirement might be one of the most misunderstood rules in all of family law.
Often people believe the 10-10 rules means that the non-serving spouse has to be married to the servicemember for 10 years or more before they are eligible to receive any portion of the retirement. This sounds pretty good to a servicemember who has been married for 9 years of service and is now going through a divorce, but this is incorrect.
The 10-10 rule does not determine who is and is not eligible for retirement. The 10-10 Rule determines how the non-serving spouse gets paid. The Defense Finance and Account Service, DFAS, processes military retired pay. State law determines the division of assets, including military retired pay, in a divorce.
The 10-10 Rule is a DFAS rule and DFAS says that states are generally free to divide up military retired pay as a marital asset as the state law requires; however, DFAS will only process the payments to the non-serving spouse if the marriage was longer than 10 years and was during 10 years of active military service by the servicemember.
A 12-year marriage during years 13-20 of the servicemember’s career does not meet the 10-10 rule. The state court is still able to calculate 8 years out of 20 as a marital asset and determine how much of the military retired pay should be paid to the non-serving spouse, but DFAS will not process the payment. The servicemember will have to pay the amount every month out of the money received, or set up an allotment with DFAS. The allotment may have to be adjusted annually if cost of living adjustments (COLA) are included.
Literally, entire books, long books, have been written about military retired pay. If your divorce involves military retired pay, please contact us for a consultation. We provide a free 15-minute consultation to discuss military retired pay issues.
Many people misunderstand custody, not realizing that the term custody used for both physical custody, such as parenting time, visitation, etc. It is also used with legal custody, which is decision making. The court will make separate determinations for each of these types of custody.
Legal Custody
The Court will decide legal custody based upon the best interests of the children. Many factors are considered when it comes to the best interests of the child or children. Courts want parents to get along and co-parent with joint custody. Even with joint custody, one parent is very likely to be named the final decision-maker. Which parent is named as the final decision-maker depends a lot on which parent is going to facilitate co-parenting. Additionally, if one parent has traditionally been the primary caretaker of the children, that parent is likely to be named the final decision-maker.
In joint custody, the parents are supposed to discuss decisions that need to be made. If no agreement can be reached, the final decision-making parent has to make the decision. If the parent without decision-making authority believes the decisions made are routinely not in the best interest of the child, that parent can file a motion to modify asking the court to become the final decision-maker and/or, if warranted, end joint custody completely.
Other considerations for the best interest of the child:
Judges want parents to focus on the best interests of the children. If there are reasons for the court to make a decision one way or the other, the parent alleging the other parent is not acting in the bests interests should be prepared to offer reliable evidence for the judge to make their decision.
Be very careful about getting advice from people regarding this type of question. Everyone answers according to their own view and experience. The advice the person gives might be good for them if they were in your situation but could be bad for you.
If you are in danger of violence, leave. If you need a Victim’s Protective Order, start one (here). The first priority is your physical safety and mental health. If your spouse is mentally or physically abusive, manipulative, then it’s probably best to find a safer place to stay for awhile.
Property: Marital v. Separate
If one spouse owned property and brought that property into the marriage, then the property remains separate property under most circumstances. This includes real estate and personal property. If separate property is co-mingled, then the property is no longer separate and is considered marital and will be part of all of the property divided by the judge.
Co-mingled property means that the character of the property has changed. One of the best examples would be a house. If one spouse owns a house at the time of marriage and then together the parties renovate the house using marital funds to buy the supplies and they both put their blood, sweat and tears into the doing the work themselves, it could be likely that a judge will determine that the house has now been co-mingled with the funds spent on the remodel along with the work both parties contributed.
Some assets are marital, but are clearly enjoyed and used more by one person than the other. Each spouse may have hobbies and the couple may have spent a lot of money on buying things for that hobby. An equitable division would likely include giving the supplies and tools for the hobby to the person who participates in that hobby.
The assets will be valued and then counted for each person on a balance sheet. Be reasonable in your valuation. Stories persist of a divorce where both spouses had a list of items and valued each item. Then they took turns selecting items from the list they wanted to keep. The husband insisted that his wife’s sewing machine was worth thousands of dollars. His motivation was to be able to “pick” thousands of dollars worth of assets from the list. Instead, the husband found himself the owner of a sewing machine he alleged was worth thousands of dollars and the wife was then allowed to select items totaling the “value” of the sewing machine. Remember that this might be your first and only divorce. Some judges have seen thousands of divorces before yours. Whatever judge decides your case has likely seen every trick you can think of.
Generally
Asset division in an Oklahoma divorce is equitable. Equitable does not require property division to be 50/50, but must be based upon some reason for the division. Assets that are acquired during the marriage are most often going to be marital assets. Inheritance and items purchased with inheritance will keep their status of being separate property so long as they are not comingled with marital assets or funds.
People often wonder what happens with items bought after they separate. Oklahoma cuts off marital ownership of assets when joint industry between the parties. This means that the parties are not longer jointly working towards the same ends or financial goals. Physical separation is one factor, but parties that don’t have the money for one to move out and get a separate place can still have ended joint industry. When one person starts saving and planning to move out can be an indication that joint industry between the parties is over. There is no set rule as to when joint industry is over. Looking at the actions of the parties and why they do what they do can help a judge see when the parties were financially separated and joint industry was over.
The law assumes that a child of 12 or older has the maturity to explain what they prefer and why. Some courts will speak directly to the kids and others will use a guardian ad litem to be the attorney for the children and speak to the court on behalf of the kids. Including a guardian ad litem in the case can be expensive because it means the cost of another attorney, usually paid 50/50 between the parties.
Kids can state a preference and explain to the Court, directly or through the G.A.L., what their preference is. The court is not bound by the preference of the child as the court still has to act in the best interests of the children.
Imagine one household where the parent lets the child do nearly anything the child wants with no rules. Many kids will be in favor of living at that house, yet such a lack of structure is rarely the right environment for children. A judge is not going to follow the preference of the child to go against evidence that the child will be unsupervised and such environment is not in the children’s best interest.
There is no clear rule or formula to determine a reasonable amount of alimony. If you’ve read an article online that says a spouse is entitled to get 1 year of alimony for every 3 years of marriage, I’m sorry to tell you, that might work somewhere, but that somewhere is not Oklahoma.
The “rule” is that the party seeking alimony must show the court that the party has a demonstrated need for alimony. For example, if one spouse has a job that makes $3,000 per month and their monthly bills when separated will be $4,000, then the spouse has demonstrated a need of $1,000 per month in alimony. The second half of the “rule” is that the party who would be ordered to pay has to have the money to be able to pay it. In this situation, if the party who would be paying if ordered to only makes $4,000 and has $200 per month left over after paying their bills, then there isn’t enough money available to order payment of $1,000 per month in alimony.
Alimony is Temporary/Transitional
The goal of alimony in Oklahoma is to help one party transition from a married life to being able to support themselves on their own. Often this can be done by going back to school or getting certifications. The length of time needed for schooling or certifications to increase earning potential will often guide the court in determining how long alimony should last, if the factors of need and ability to pay are met. Absent an agreement, courts will require a significant reason for awarding lengthy alimony.
No. Student loans are considered separate property as the education and increased earning ability is specific to the person who got the education. There are cases where a judge could order one party to pay the other’s student loans or a portion of them, but those situations are very rare.