Oklahoma is a divorce “fault” state. There are 12 statutory grounds for divorce:

• abandonment for one year;
• adultery;
• impotency;
• when the wife at the time of her marriage was pregnant by another than her husband;
• extreme cruelty;
• fraudulent contract;
• incompatibility;
• habitual drunkenness;
• gross neglect of duty;
• imprisonment of the other party in a state or federal penal institution under sentence thereto for the commission of a felony at the time the petition is filed;
• the procurement of a final divorce decree outside the State of Oklahoma by a husband or wife, which does not in the State of Oklahoma release the other party from the obligations of the marriage;
• insanity for a period of five years – the insane person having been:
1. an inmate of a state institution for the insane in the State of Oklahoma for such period; or
2. an inmate of a state institution for the insane in some other state for such period; or
3. an in-patient in a private sanitarium; and
4. affected with a type of insanity with a poor prognosis for recovery.

The most common, least controversial ground for divorce is incompatibility. Incompatibility has been determined by Oklahoma’s appellate courts to be a “mutual” fault concept that describes the state of relations between both spouses.

To obtain a divorce, a court proceeding must be commenced by petition, setting forth the statutory grounds and reason for the divorce. In cases where there are no minor children involved and there is a complete agreement memorialised in a divorce decree, there is no minimum separation period. The divorce may be granted promptly once the petition has been filed. In cases involving minor children, there is a waiting period of 90 days. Courts have the power to waive the 90-day waiting period in special circumstances, but such a waiver is unusual.

Divorce proceedings must be served in the same manner as other civil lawsuits. The divorce petition must be accompanied by a summons and a notice of the automatic temporary injunction and served upon the respondent by certified mail (with return receipt requested and delivery restricted to the addressee), by commercial courier, by a sheriff, or by personal service using a licensed process server who serves the papers upon the respondent or a person residing with the respondent who is over 15 years old. Service may be made by publication if the petitioner first demonstrates that, with due diligence, service could not be made by any other method. Service of process must be made within 180 days after the filing of the petition.

Generally, each person must be at least 18 years old to marry. However, courts have the authority to permit minors to marry in certain circumstances, including in the event of pregnancy or with parental consent. Oklahoma recognises common law marriage, which – broadly defined – means that both parties are competent to marry and agree to be married to one another. There is no ceremonial or licence requirement for common law marriage. While common law marriage relies on the mutual intent of competent parties to be married, courts scrutinise objective factors such as cohabitation, joint financial acts, and holding themselves out to the public as spouses, to determine if that intent existed. The party asserting the existence of the marriage bears the heavy burden of proving these elements by clear and convincing evidence. Divorce is viewed as part of the authority of the state government and may be granted even when one spouse objects to a divorce on religious or moral grounds.

The residency requirement for divorce also applies to actions for annulment. There is no residency requirement for legal separation. The law applicable to legal separation is the same as in divorce; however, unlike divorce, in an action for legal separation, the marriage is not dissolved. Likewise, in the case of an annulment where the court determines that the marriage was void, the court retains the authority to make an equitable division of property jointly accumulated during the period of time that the parties lived as husband and wife, as well as to determine child custody matters.

To commence a divorce or annulment proceeding in Oklahoma, at least one spouse must have been “an actual resident, in good faith, of the State of Oklahoma” for the six months immediately preceding the filing of the petition. If neither spouse meets this requirement, an Oklahoma court will not have jurisdiction to grant a divorce. In cases where there is a dispute about jurisdiction, the analysis becomes extremely fact-sensitive.

Appellate law addressing the residency requirement tends to use the terms “residence” and “domicile” interchangeably, even though the words may have legally significant, independent definitions for other purposes. By itself, nationality is not a factor for determining residency; however, in the event of a robust inquiry following a jurisdictional challenge, nationality could be relevant, depending on the circumstances.

Domicile has been described by an appellate court as “the inherent element upon which the jurisdiction must rest”. As the question of jurisdiction is fundamental in every matter, jurisdiction may be challenged by either party or by the court. When a jurisdictional challenge is made while a divorce proceeding is pending in a foreign jurisdiction, a stay of Oklahoma proceedings may be requested. When a stay has been requested, the court must consider:

• whether there is an alternate forum (such as a court in a foreign jurisdiction) where the case may be tried;
• whether the alternate forum provides an adequate remedy;
• whether maintaining the case would cause a substantial injustice to the party requesting a stay;
• whether the alternate forum can exercise jurisdiction over the parties;
• whether the balance between the private interests of the parties and the public interest of the State predominates in favour of the action being brought in the alternate forum; and
• whether the stay would prevent unreasonable duplication or proliferation of litigation.

Oklahoma case law says: “The question of jurisdiction is primary and fundamental in every case and cannot be conferred by the consent of the parties, waived by the parties, or overlooked by the Court.” Domicile in the state where a divorce is sought is an inherent element in and prerequisite for jurisdiction for divorce.

Oklahoma has adopted the Uniform Interstate Family Support Act, which was created with the principle that there should only be one court order for child support at a time. The definition of “support” in the Uniform Interstate Family Support Act includes orders for spousal support. In a proceeding to establish or enforce a support order, a court may exercise jurisdiction over a non-resident person if:

• the individual is personally served with summons within the state;
• the individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
• the individual resided with the child in this state;
• the individual resided in this state and provided prenatal expenses or support for the child;
• the child resides in this state as a result of the acts or directives of the individual;
• the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
• the individual asserted parentage of a child in the putative father registry maintained in this state by the Oklahoma Department of Human Services; or
• there is any other basis consistent with the constitutions of this state and the USA for the exercise of personal jurisdiction.

In the event of simultaneous proceedings in multiple jurisdictions, a contesting party may request a stay if there is a pending challenge to the exercise of jurisdiction. Factors considered for a stay request include the timeliness of the jurisdictional challenge together with the facts pertaining to jurisdiction, including which state is the home state of the child in a child support case.

Oklahoma courts may hear financial claims after a foreign divorce; however, Oklahoma does not have the ability to modify a spousal support order issued by a foreign court so long as the foreign court has continuing, exclusive jurisdiction over the order under that jurisdiction’s laws. Oklahoma may modify foreign child support orders in certain circumstances in accordance with the Uniform Interstate Family Support Act.

Service in financial proceedings must be made in the same manner as other civil lawsuits: a petition and summons must be served by certified mail (with return receipt requested and delivery restricted to the addressee), by commercial courier, by a sheriff, or by personal service using a licensed process server. There is no statutory timeframe or waiting period for a financial proceeding, so each case must be prosecuted and defended like any civil lawsuit.

In a divorce or annulment proceeding, the court has a statutory duty to determine what is each party’s separate, non-marital property and to make a just and reasonable division of all property acquired by the parties jointly during the marriage. The “just and reasonable” standard is also characterised as fair and equitable, and it does not necessarily mean an equal, 50/50 division. The sole exception to the just and reasonable standard is where there is a valid prenuptial agreement that provides for an alternative method of division of jointly acquired property.

Appellate case law says that trial courts should also divide any enhancement in value of otherwise separate property if the value increase was the result of efforts, funds or skills of either spouse during the marriage. Spousal contributions are distinguished from economic factors or market forces unrelated to efforts of labour. The burden of proof is on the non-owning spouse claiming a share of an in-marriage increase in separate property value to show the value of the property at the time of the marriage, the value at the time of trial, and that the enhancement was the result of effort by either spouse as opposed to economic conditions or circumstances beyond the parties’ control.

Courts have broad discretion to divide and allocate marital assets and funds. Property may be divided in kind or require payments necessary to effect a fair division. Even when property has been determined to be one spouse’s separate, non-marital property, the court may invade that separate property for alimony or child support payments. Under Oklahoma law, pets are classified as personal property, meaning courts apply standard property division principles to determine ownership.

While there are some disclosure obligations early in a divorce or annulment case, the disclosure requirements generally pertain to income and debt. Each spouse is entitled to engage in the full range of discovery permitted by the rules of civil procedure, including written discovery requests to the other party, depositions of witnesses, and subpoenas. The court can enforce discovery requests and subpoenas, but it will rarely involve itself in the discovery process in the absence of a request by one of the parties.

Divorce courts recognise the concept of trusts. Oklahoma statutes provide that provisions in favour of a spouse in an express trust are revoked in the event of a divorce.

Courts have broad authority to award spousal support (alimony) in divorce proceedings. Oklahoma does not have a fixed mathematical formula for calculating spousal support. Broadly, alimony may be awarded on a temporary or final basis when one spouse demonstrates both a financial need for support and that the other spouse has the ability to pay the needed support. Spousal support claims are highly fact-sensitive. Appellate courts have recognised the following factors:

• demonstrated need during the post-matrimonial economic readjustment period;
• the parties’ station in life;
• the length of the marriage and the ages of the parties;
• the earning capacity of each spouse;
• the parties’ physical condition and financial means;
• the mode of living to which each spouse has become accustomed during the marriage; and
• evidence of a spouse’s own income-producing capacity and the time necessary to make the transition for self-support.

When substantial marital property is awarded, the accompanying claim for spousal support must be supported by proof of excess monetary need to cushion the economic impact of transition and readjustment to gainful employment. Oklahoma has a “fixed sum” rule, meaning that the court must determine the total amount of spousal support awarded, and there is no indefinite or permanent spousal support. Owing to the variety of factors involved in and the vague nature of both “need” and “ability to pay”, spousal support awards are sometimes viewed as products of the subjective whims and philosophies of the individual trial judge.

Either spouse may apply for temporary spousal support when a legal separation or dissolution of marriage proceeding is underway. The factors to be considered by the court may be truncated at an interlocutory hearing simply owing to the limitations of time at such a hearing and because discovery may be incomplete.

Prenuptial agreements are briefly referred to in Oklahoma’s statutes as “valid antenuptial contract[s] in writing”. That reference has led to a body of case law upholding prenuptial agreements in a variety of circumstances. Antenuptial agreements are characterised as “favoured by the law” by Oklahoma’s appellate courts. To be enforceable, an antenuptial agreement must be fair and reasonable, or the challenging spouse must have had a full and fair disclosure of the other’s assets before execution. While independent counsel is not strictly required, the absence of independent legal advice is a significant factor courts weigh when determining whether the agreement was entered into voluntarily and with full knowledge. Antenuptial agreements remain the most effective way to deviate from the subjective nature of spousal support awards and the uncertainty of the “just and equitable” property division standard.

Oklahoma law is not clear concerning the validity of postnuptial agreements, as there is a split in authority. Appellate courts have confirmed that spouses may contract with one another, transfer property to one another, and even modify a prenuptial agreement after the marriage. However, at least one appellate decision has held that there is no legal basis for a postnuptial agreement.

Unmarried couples with assets must look to property law and contract law to determine and enforce their rights. An unmarried individual does not acquire a legal or equitable interest in the property of their romantic partner or significant other simply by virtue of cohabitation. Unmarried cohabitants do not acquire any property rights simply by virtue of length of cohabitation, shared children or otherwise.

Compliance with a financial order for child or spousal support may be enforced through the applicable provisions of the Uniform Interstate Family Support Act. The Act specifically recognises the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and the Hague Conference on Private International Law. It also provides for the registration and enforcement of foreign orders, including support orders issued by international courts.

Except for cases heard by an arbitrator, divorce proceedings are open to the public. As a result, the media may be present in the courtroom. Local newspapers routinely publish the names of parties when marriage licences are issued and when divorces are granted. The scope of media reporting may be limited for sensitive matters, including the identity of minor children, domestic violence victims, and the presentation of medical records.

There are a few ways to remove matters from the public eye. Most courts permit the use of abbreviating first names to limit public searches. Venue may be waived by agreement, so filing a proceeding in a remote venue by agreement may be a strategy. Following a settlement, the decree may incorporate a settlement agreement by reference that is not filed in the publicly accessible court file. Properly done, unfiled settlement agreements may remove most of the details of a settlement from the public record, while retaining all the enforceability and weight of a court order.

Oklahoma’s civil statutes include a Dispute Resolution Act and a Uniform Arbitration Act. Parties to a dispute, including a divorce, may agree for their matter to be heard by an arbitrator. The rules governing arbitration include the right to counsel and the right to conduct discovery. Arbitration can be a powerful tool to ensure privacy and to provide scheduling flexibility and controls to both sides and their counsel. In many cases, an arbitrator may hear and decide a contested matter months before a public judicial officer would be able to hear it. Once an arbitration decision is issued, either party may apply for a court to confirm the award and make it an enforceable order of the court. Parties to an arbitration also have the right to appeal.

Oklahoma family law statutes give family courts the ability to require parties to attend mediation. Penalties for non-compliance could range from financial sanctions, to an award of attorney fees to the compliant party, or even contempt of court.

Agreements reached by parties privately, whether through mediation or simply between themselves, are enforceable. Appellate courts have developed the law and provided trial courts with guidance and an analysis for determining the propriety of enforcing a settlement agreement when one side wishes to renege after making the deal. A settlement agreement should not be approved unless it is fair, just and reasonable. In considering whether a divorce settlement agreement is fair and reasonable, the trial court must look beyond the terms of the agreement and consider the relationship between the parties at the time of trial, their ages, health, financial conditions, opportunities, and contribution of each to the joint estate.

Oklahoma has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which applies to all matters involving minor children. The UCCJEA gives Oklahoma the authority to make an initial child custody determination only in specific circumstances, as follows:

• “[t]his state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state, but a parent or person acting as a parent continues to live in this state;
• [a] court of another state does not have jurisdiction under paragraph 1 of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 19 or 20 of this Act[,] and:
1. the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
2. substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
• [a]ll courts having jurisdiction under paragraph 1 or 2 of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 19 or 20 of this Act; or
• no court of any other state would have jurisdiction under the criteria specified in paragraph 1, 2, or 3 of this subsection”.

For a child under six months of age, the UCCJEA defines the “home state” as the state where the child has lived from birth, meaning a subsequent state of residence cannot acquire home state jurisdiction until the child has lived there for a full six months. This “birth state” priority prevents a new state from assuming jurisdiction over an infant based solely on recent physical presence or a change in residence.

As the UCCJEA has been adopted by 49 US states, the District of Columbia, Guam, Puerto Rico and the US Virgin Islands, it provides a consistent basis for courts to assess and determine whether jurisdiction over any minor is proper.

When jurisdiction over a minor child is in dispute, the concepts of domicile and residence may be relevant to a factual inquiry about what constitutes the child’s “home state” as defined by the UCCJEA and a federal law known as the Parental Kidnapping Prevention Act.

Each party has a right to ask the appropriate court to make decisions concerning custody and parenting time. If no prior proceeding exists, a request is made by petition; otherwise, either parent may file a motion for the court to address a child-related dispute or to modify a prior order concerning child custody. Parents in a divorce have equal rights to their minor children, pending a judicial decision, and unmarried parents may also have equal rights if the biological father has been appropriately recognised in legal documents. Courts have broad discretion to make decisions concerning the welfare of minor children – discretion and authority that continue even while an appeal of a contested decision is pending.

Child support is calculated as a percentage of the combined gross income of both parents pursuant to a formula. Although in most cases child support is determined by a statutory schedule that is presumptively the appropriate amount, courts have broad discretion in matters related to child support. The statutory child support schedule’s top income is USD15,000, which may be inadequate in cases where one or both parents are high net worth individuals. In matters where the parents’ combined incomes exceed the amounts anticipated by the child support guidelines, the court may consider other factors – including the child’s reasonable expenses and lifestyle – in setting child support.

A child is entitled to support by both parents until the child reaches the age of 18. The law provides for additional support until the age of 20, so long as the child is enrolled in and attending high school. There is no authority for child support beyond high school and the age of 20 years unless the child has a qualifying disability that would trigger the application of other laws for support.

Parents have some ability to deviate from the child support guidelines and may sometimes agree to a deviation from the presumptive child support guidelines. However, deviations draw scrutiny, particularly when one parent proposes paying less than the formula would require. Downward departures (reductions in the payor’s monthly obligation) require specific findings by a court for approval.

Courts have broad discretion over all child-related matters and may make orders addressing the full range of issues that arise concerning their upbringing. In high-conflict cases, courts may delegate decision-making authority to a custodial parent, entrusting them with the decision-making authority necessary to raise and parent the child. Courts may also appoint other professionals, including parenting co-ordinators, to assist parents with communication and decision-making. When parents cannot agree on specific issues, such as education or medical treatment, courts may defer to the opinion of professionals involved with the child.

Oklahoma law requires courts hearing child custody disputes to consider which parent will foster a relationship between the child and the other parent. Parental alienation findings by trial courts have been upheld as a basis for a child custody determination. Allegations of alienation are fact-sensitive inquiries concerning the behaviour of each parent, as it relates to encouraging or discouraging a relationship between a child and the other parent. Factors include:

• interference with court orders;
• denial of visitation;
• denial of communication; and
• statements made or information provided by a parent to a child to influence the child’s views of the other parent.

Children may give preference testimony and other information to a court. There are detailed procedures for judicial interviews of minor children set out both in a statute and in case law. Even with express procedures, judicial philosophies and attitudes towards interviewing children vary widely. Some judges will readily interview children in their office, whereas others will always require the appointment of a guardian ad litem or a counsellor for the child to relay the child preference information to the court.

See 2.9 ADR in Financial Matters.

See 2.8 Media Access and Transparency in Financial Proceedings.