FAQ  |  DIVORCE & CHILD CUSTODY

Frequently Asked Questions

My ex-spouse is refusing to allow me visitation with our child because I have not paid him/her child support.

In Oklahoma, one parent cannot prohibit the other parent from seeing the child due to the lack of child support.  Child support and child custody are not related.  Therefore, even if one parent is behind on child support, she/he is still entitled to their court-ordered visitation. 

My ex-spouse has threatened to move away with the children. Could he/she actually move away without my knowing?

Oklahoma child custody laws require that a custodial parent who is planning to move must always give a 60 day written notice to the noncustodial parent.  This notice must state the parent’s intent to relocate, the new location, the date of relocation, and a statement stating the other party may oppose within 30 days.  If the noncustodial parent opposes the relocation, then the court will look at several factors such as the motive of relocating, whether the move will enhance the quality of the life of the child, and the age and needs of the child.  The relocating parent must show that the move is in good faith.  This helps prevent a parent that wants to move just to spite the noncustodial parent.  In this case, they will not be able to show the move is in the best interest of the child.  However, if the relocation is legitimately for work-related reasons, the moving parent would most likely not have a problem with the move.

I don’t get to see my child as much as I would like. How can I get more time with him/her?

Typically, in Oklahoma a motion to modify child custody only requires there be a change in circumstances and that this change is in the best interest of the child.  The change in circumstances can be several different things. For example, it could be a parent got a new job and this job allows more time to be spent with the child.  After the change in circumstances requirement is met, the moving party must show that the change in custody is in the best interest of the child.  However, if the moving party is trying to modify full custody, then the test requires there to be a permeant, substantial and material change in conditions, which directly affects the best interest of the child, and as a result, the child would be substantially better off with respect to temporal, mental, and moral welfare if the requested change in custody is ordered.  This requirement is much harder to satisfy than the general change in circumstances requirement. 

“My ex-spouse lives with someone convicted of child abuse. I am concerned he/she will get custody.”

There are a few Oklahoma statutory presumptions for the best interest of the child test.  Oklahoma has statutes in place to help the best interest of the child test in these circumstances. There are several issues that can create the presumption that one parent will not pass the best interest of the child test.  If a parent is living with someone who is a registered sex offender, has been convicted of child abuse, an alcoholic or drug dependent, has inflicted serious bodily harm to themselves or another, or has been convicted of domestic abuse within the past 5 years, then there is a rebuttable presumption that the best interest of the child would not be with that parent. 

I am getting a divorce, but I do not know how my child custody will be determined.

The test for determining child custody in Oklahoma is called “the best interest of the child test.”  This test looks at several different factors relating to the child’s relationship with each parent and determines which type of custody arrangement is in the best interest of the child.  Factors the court may consider may include if any risk or harm to the child exists, which parent is more likely to allow visitation, if any drug or alcohol abuse exists, and whether or not the parents have the ability to work with each other.

What are the different types of child custody in Oklahoma?

The three different types of child custody in Oklahoma are full custody, joint custody, and joint custody with a primary parent.  First, full custody is when one parent has complete control over all aspects of the children. However, this does not mean the other parent would not have visitation rights.  Second, joint custody is when the parents share the children and all major decisions regarding the children.  Major decisions are defined as schooling, religion, healthcare, and extracurricular activities.  Lastly, joint custody with a primary parent allows for the parents to share the child, but the ultimate decision making power for major decisions would lie with only one parent, the primary parent.  The primary parent would still have to consult with the non-primary parent, but in the event they disagreed, the primary parent would have the final say.

My spouse has been ordered to pay child support, but she/he is not paying. Is there anything I can do?

There are several different was you can enforce child support obligations in Oklahoma.  For example, one route is to file a contempt citation.  This would show that the paying parent has been ordered to pay child support and she/he is not currently doing so.  If the paying parent continues to not pay, then they may be held in contempt.  However, this route is extreme and does not necessarily get the parent the funds needed.  The most effective option is to use Child Support Services.  Child Support Services will employ such actions as wage garnishments or even revoking the paying parent’s licenses. 

The child support, calculated by the child support guidelines, is not high enough to support my child’s accustomed standard of living. Does the district court of Oklahoma have to follow the guidelines?

“The child support, calculated by the child support guidelines, is not high enough to support my child’s accustomed standard of living.  Does the district court of Oklahoma have to follow the guidelines?”  The Oklahoma child support guidelines are typically followed by the district court, but in certain situations, the Oklahoma court will order a deviation in the guidelines.  This means the child support ordered is different than what the child support guidelines state.  Usually, this will happen when the gross monthly income of the parties is over $15,000.00 because the child support will not take into account the accustomed standard of living of the child.  When a deviation is requested, the court will look to see the child’s needs, the parent’s ability to pay, and the child’s prior standard of living.

How is Oklahoma Child Support determined?

“How is Oklahoma child support determined?”  The court uses the Oklahoma child support guidelines to determine the amount that is to be paid.  Child support is calculated by using an income sharing approach.  The guidelines look at several different factors such as, overnights with each parent, income of each parent, any insurance covering the children, and several other factors.  Each factor is entered into a spreadsheet that calculates financial responsibility.  After each field is entered, the guidelines determine the monthly child support obligation.  This calculation is used to guide the court in determining child support.

My spouse and I are getting a divorce, but I am worried she/he will not give me any money for our child once we get divorce.

“My spouse and I are getting a divorce, but I am worried she/he will not give me any money for our child once we get divorce.”  This problem is associated with child support.  What is Oklahoma child support?  Child support is a calculated amount of money, ordered by the court, for the noncustodial parent to give to the custodial parent on a monthly basis.  In other words, a court orders one parent to pay the other parent, a monthly sum, to help pay for the children’s expenses.  If one party is worried that the other party will not help raise the child, then they should request the court order child support.

I’m worried my spouse will get most of the property in the divorce. If he/she does get everything, will I be left with nothing? Can alimony in Lieu of Property help.

“I’m worried my spouse will get most of the property in the divorce.  If he/she does get everything, will I be left with nothing?”  Not necessarily.  Although, nothing can be done about the separate property the other party already owned, there is a type of alimony available to those who receive the “short end of the stick” on the Oklahoma divorce property distribution.  This is called “alimony in lieu of property.”  This means if the value of the property is uneven in the property distribution, then the party receiving the lesser value may be able to receive the difference in alimony.  This type of alimony has nothing to do with the need for support or the ability to pay for the support.  It merely evens the scales when one party receives more property than the other.

Retirement Funds: Does my spouse get half?

 have a retirement account from before I was married.  Can my spouse take half of my retirement in our Oklahoma divorce?  Retirement plans differ greatly and there are different rules for different types of retirement plans.  Most likely, Oklahoma divorce laws say that a spouse will not be able to take half of your retirement in this situation.  However, this does not mean your spouse cannot get any of the retirement.  For example, if one party has a defined contribution plan, then the value which would be considered marital property, and subject to property division, is the amount of the contribution during the marriage plus interest.  This means that in a divorce only the amount paid into the account plus interest would be subject to property division in a divorce.  Other retirement accounts have different rules for determining if any of the account is subject to property division.  Military retirements are protected by federal law.  Federal law precludes state law from dividing military plans.  Therefore, veterans’ benefits are considered separate property and not subject to property division.

“I inherited property from my parents. Will I have to split it with my spouse when I get divorced?

“I inherited property from my parents.  Will I have to split it with my spouse when I get divorced?”  No.  Inheritance is considered separate property.  Property that is left to someone is considered the sole property of that person.  In other words, anything that is left to you and you alone through inheritance is separate property.  This  means it would not be subject to property division in a divorce.  For example, if you inherited your mother’s jewelry through her will, then your spouse would not be able to obtain any of the jewelry in a subsequent divorce action. 

I gave my wife/husband a gift. Is it considered marital property?

“I gave my wife/husband a gift.  Is it considered marital property?”  Most likely the answer is no.  Any gift to one spouse is separate property, unless the property is being transferred into a joint title.  For example, jewelry that is given as a birthday present will be considered as separate property, but if the title of a car is transferred from sole ownership to joint ownership, then the gift is typically considered marital property. 

How will my Oklahoma property be divided in my divorce?

“How will my Oklahoma property be divided in my divorce?”  Property division in an Oklahoma divorce is determined by looking all the property both parties acquired before the marriage, during the marriage, and after the parties either filed or separated.  From there, the court will determine which property is separate and which property is marital.  Separate property is never subject to property division, unless the parties agree otherwise.  For example, if one party purchases a vehicle before the marriage  and the title to the vehicle has remained solely in that party’s name, then this would be considered separate property and would not be subject to property division.  Marital property, on the other hand, is split between the parties in a Oklahoma divorce.  Oklahoma Marital property is all the property that is acquired through the joint industry during the marriage, which basically means the property was acquired during the marriage with income earned by either party during the marriage. 

If you need further information continue browsing this site for additional legal information about your Oklahoma Legal Issue or contact one of our Oklahoma Divorce Lawyers.

“I just moved to Oklahoma. May I file for divorce here?

“I just moved to Oklahoma. May I file for divorce?”  Unless the party has been living in Oklahoma for six months, they may not file for divorce in Oklahoma.  The jurisdictional requirements for a divorce in Oklahoma require the filing party to be a resident of Oklahoma for the past six months.  However, the durational requirement for Oklahoma legal separation is only one day.  Therefore, if someone has recently moved to Oklahoma, although they may not be able to obtain a divorce, they may be able to file for separation.

If you need further information continue browsing this site for additional legal information about your Oklahoma Legal Issue or contact one of our Oklahoma Divorce Lawyers.

“I don’t believe in divorce, but my spouse has left me. Is there anything I can do?”.

“I don’t believe in divorce, but my spouse has left me.  Is there anything I can do?”  In Oklahoma, Separation is the most peculiar dissolution option.  An Oklahoma legal Separation does not grant the dissolution of a marriage.  It is merely spousal support alimony without the divorce.  The couple remains married.  However, if one party files for separation, either with or without an Oklahoma Divorce Lawyer, and the other party files for divorce, then the divorce case will trump the separation case.  Separation is typically used when one party feels they may be able to salvage their marriage, but they don’t want to be left with anything to support themselves while they work on their marriage. If you need further information continue browsing this site for additional legal information about your Oklahoma Legal Issue or contact one of our Oklahoma Divorce Lawyers.

How do I get my marriage annulled in Oklahoma?

“Can I just get my marriage annulled?”  Unlike divorce, annulment of marriage in Oklahoma is only available to void or voidable marriages.  How can a marriage be void or voidable? A void marriage is created when one party does not satisfy the constitutional requirements for a marriage.  The constitutional requirements are the following: the parties are over the age of majority (18), the parties are unmarried or it is not within the first 6 months after a divorce, and the parties are unrelated.  In effect, an annulment declares a marriage invalid, rather than dissolves it.  Therefore, it acts as if the marriage never existed.  Oddly enough, other than the declaration of invalidity, the relief available for an annulment is very similar to a divorce. If you need further information continue browsing this site for additional legal information about your Oklahoma Legal Issue or contact one of our Oklahoma Divorce Lawyers.

I am not sure I want a divorce, what are my options?

“I am not sure I want a divorce, what are my options?”  The three different types of marriage dissolution in Oklahoma are divorce, annulment, and separation.  Divorce provides relief in several areas.  It provides for more than just the dissolution of a marriage.  It may also provide for child custody and child visitation, child support, property division, spousal support alimony, a name change, divorce attorney’s fees, and a restraining order.  In a divorce case, the petitioner must state the grounds for which the divorce should be granted.  There are many grounds for divorce in Oklahoma, including adultery. But, the most common grounds for divorce in Oklahoma is incompatibility.  Legally, this is defined as a conflict of personalities that destroys the legitimate ends of matrimony and the possibility of reconciliation.  In reality, this means neither party is at fault for the deterioration of the relationship.  The couple just cannot get along anymore, and the possibility of the couple renewing their marriage is highly unlikely.  If you need further information continue browsing this site for additional legal information about your Oklahoma Legal Issue or contact one of our Oklahoma Divorce Lawyers.

I have been living with my boyfriend/girlfriend for several years. Am I common law married?”

“I have been living with my boyfriend/girlfriend for several years. Am I common law married?”  Most likely, the answer is no.  Living together does not, in itself, create a common law marriage.  There is not a durational requirement for common law marriage in Oklahoma, meaning it doesn’t matter whether a couple has lived together for 24 hours or 24 years.  The fact that a couple lives together for a long time may be evidence there is a common law marriage, but this evidence by itself, will not prove anything.  Both parties must have the mutual consent to be married. 

What is the difference between ceremonial marriage and common law marriage?

“What is the difference between ceremonial marriage and common law marriage in Oklahoma?”  Legally speaking, the only difference is how a couple becomes married.  The main and obvious elements of a ceremonial marriage are a ceremony conducted by either a judge or clergy, two adult witnesses, and the officiant and witnesses sign the marriage certificate.  On the other hand, in Oklahoma, common law marriage  requires a mutual agreement between the parties to be married, a permanent and exclusive relationship, and the couple holds themselves out to the public in some manner as being married.  Often, the most difficult to prove is an agreement to be married.  Since there is, far too often, a party that claims he/she never agreed to being married to the other, there are elements in which one can prove such agreement.  Actions such as cohabitation, actions consistent with a spouse, recognition in the community as being married, and a clear declaration by the parties that they are husband and wife will prove there was an agreement between the parties. 

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