Divorce Proceedings: UPDATED ON July 29th 2010.
Oklahoma is a
"no-fault" divorce state, meaning it is no longer necessary to prove that the other party did something wrong in order to be granted a divorce. In fact, Oklahoma was the first state to enact the no-fault system. Generally speaking, a party cannot seek an
annulment unless that party can prove that the marriage was invalid for a reason such as fraud. Parties can seek a
legal separation that essentially acts like a
temporary order of the court but keeps the marriage intact (usually because the parties are attempting to work the situation out).
By and large, most divorce cases are commenced with the filing of a
petition for dissolution of marriage. This petition will lay out issues like jurisdiction of the courts, the presence or non-presence of minor children and will include a prayer that the
petitioner be granted a dissolution of marriage based on
incompatibility. Although there are other grounds for divorce such as adultery, courts will rarely grant a divorce for any other reason than on the bases of incompatibility. The courts are becoming increasingly hostile to allowing a party to plead and offer evidence of adultery. The petition normally only contains general allegations and does not state every claim with specificity. The petitioner must include the names and adresses of the minor children going back five years.
The person filing the petition for dissolution of marriage is the
petitioner. The Person responding to the petition for dissolution is the respondent. There is no real tactical advantage to being either the petitioner or respondent. A petition can be served on the respondent by sending it to the respondent's attorney (if they have one and the attorney agrees to accept service), by certified u.s. mail or by process server. There are other ways, but these are the most commonly used. The petition may include an application for temporary order and by law the filing and service of a divorce petition creates what is known as an
automatic temporary injunction. This means, once a dissolution action has commenced neither party can engage in conduct detrimental to the other party. Click
on this link to know what you can and cannot do once you have been served with the petition for dissolution of marriage.
An
application for temporary order may or may not accompany the petition. As a matter of practice, our firm almost always files this with the petition. This document generally request that custody be granted to our client, that child support be ordered and that our client be awarded temporary support and temporary attorney fees. This is not to be confused with an application for emergency temporary order or an application for temporary restraining order. These are not common to be filed and should only be filed where one party has been acting poorly and is a threat to either the other party or the children and sometimes both. If you feel like there is a real threat to you or your children, it may be appropriate to file one of these documents.
Upon service of a petition the respondent will file his
response and
counter-petition for dissolution of marriage. If the respondent has been served an application for temporary order, the respondent is wise to file his own application. Often times, the party filing the application for temporary order will set the application for hearing in front of the judge to hash out what orders will be in place during the pendency of the action. It is at this stage where most lawyers make their biggest mistake. A properly prepared and executed
temporary order hearing can be the key to achieving client goals in a divorce case. Too often, lawyers fail to seize on this opportunity to advocate for their clients.
At this hearing, the court will decide who will pay what bills, who will live in the marital home (if there is one) and who will have temporary custody of the children. There is a laundry list of things that can happen at a temporary order hearing, but these are the most common. Temporary order hearings can run the gamut from highly formal proceeding with a court reporter to
ad hoc discussions in the judge's chambers. It all depends on the judge in your case. It is key to know your judge. If child support is going to be at issue, you must have proof of income at the temporary order hearing.
The court may appoint an attorney to represent the minor children. Such attorney is known as a
Guardian ad Litem. The appointment of a GAL is for the benefit of the minor child and the attorney is ordered to prepare a report and make recommendations on custody and visitation. As a matter of personal opinion, I am not particularly fond of the GAL system and a bad GAL can be an enormous headache for the lawyer and the client. It is important to make a good impression with the GAL. Often, the GAL will interview the children if they are of an age where that would be useful and they may make home visits. Judges tend to give their recommendation great weight and having a GAL on your side is always a plus.
Generally speaking, after a temporary order hearing is held, the
discovery process is commenced. Its purpose is indicated by it's name; it is intended to allow the parties to discover information about the other side's case. Parties are free to conduct
depositions where the deposed party must answer questions under oath in front of a court reported. Depositions can sometimes get very emotional. We prefer to do depositions in every divorce case but in cases where the client either cannot afford it or it is deemed unnecessary, we do not. During discovery, your attorney should always send over
interrogatories,
requests for production and
requests for admission. These are documents used to gather information. Interrogatories are questions the other party must answer under oath. Requests for production are requests for documentary and other tangible evidence like: bank statements, credit reports and titles. Requests for admission are attempts by one party to get stipulations from the other party. At the very least, in a
contested divorce action, your attorney should request this information. It is often very helpful to settling a case or exposing bad behavior of the other party. Recently, in an effort to get information quicker, our firm has begun to issue
subpoenas to either the opposing party or some third party like a bank or school.
Once all that is completed, a case is ready for a
hearing on the merits or
trial. Often times, judges mandate that divorcing parties attend
mediation. Mediation can be very useful to settling a case and can sometimes save the client considerable money in attorney fees and costs. Sometimes, it is utterly useless if the parties are too far apart to reach a settlement. At some point in the proceedings, one or both of the parties will offer some type of settlement to avoid trial. Again, if the parties are reasonable people and the offer to settle is made in good faith, it is possible to avoid trial. Often times, however, emotions run too high to make settlement a possibility. In those cases, a trial is necessary.
In Oklahoma, divorce cases are tried by a judge-no jury. Each party can call their witnesses and each party can be called as a witness. Failure to properly prepare for trial is inexcusable. Often times, during trial preparation, the client and lawyer will spend considerable time organizing exhibits and going over trial testimony. The judge can decide the matter at the conclusion of testimony or take the matter under advisement and issue a
memorandum opinion. The court has jurisdiction over nearly all issues raised in a divorce action. The court can decide property issues, child custody and visitation, alimony, possession of the marital home and virtually every other dispute raised at trial.
After the trial, a party that feels that the judge has incorrectly decided an issue may appeal to the Supreme Court of Oklahoma. A party can also petition the trial court for reconsideration on an issue. The issue of attorney fees and whether one party should be forced to pay the other party's attorney fees must also be raised in a post-trial motion. This is important because being compelled to pay another party's attorney fees can be very costly depending on the case.
For
property settlement, the court must make an equitable division of the estate though it need not be exactly equal.
For
alimony, the court must find that one party has a need and the other party has the ability to pay. Factors like length of the marriage, financial condition of the parties, lifestyle are considered along with other factors when deciding this question.
For
child custody, the court must act in the best interests of the child. If the child is 12 years of age or older, their opinion on who they would like to live with must be heard by the judge and if the judge rules against the wished of the child, there must be a clear reason why. Parents can do
shared parenting which usually splits the time between the two parents or a party can be awarded standard visitation which is a minimum amount of time a parent can have custody of the minor child. There are countless other ways to structure child custody and visitation, but only in rare cases will a court not allow, at least, standard visitation.
For
child support, this is relatively simple. Oklahoma uses
child support guidelines to compute how much one party must pay another. Child support is not dischargerable in bankruptcy. Also, failure to pay child support can have wide-ranging reprocussions including garnishment, loss of driving privileges, loss of hunting licenses and inability to get a passport. A party can also get cited for contempt for failure to pay and could conceivably be put in jail for up to six months (although courts are reluctant to do this because a party in jail cannot pay child support).
Possession of personal property will be divided up by the court, generally based on the value of that property and most courts deal property settlement by trying to assess the value of things and using a balance sheet to create an equitable distribution. The court can also order alimony in lieu of property which is a cash award to one party in lieu of possession of property. This is usually used when a piece of property is not divisible.
Every domestic case is different but they are also similar in many ways and a strong, creative and consistent litigation strategy is essential to achieve the client's objectives. Please contact our office at once to schedule your free consultation.
Daniel R. Bays
New Clients call (405) 310-2142 and ask for Daniel.
