What is Legal Separation in Oklahoma?
Legally speaking, legal separation (or "separate maintenance") in Oklahoma is essentially a divorce that does not legally "divorce" the parties. That is it keeps the status quo of the parties’ marriage still in effect while also dealing with the division of property and potentially support issues. The statutory definition of separate maintenance in Oklahoma is as follows: Whenever it shall be made to appear to the district court of this state that any husband or wife refuses or fails to provide for the support of his or her wife or husband and either the wife or husband is a proper and suitable person to receive an allowance for the maintenance of himself or herself and the minor children of such parties, the court may make an order requiring the husband or wife so in default to pay such allowance out of his or her estate and income, in such manner as the court shall direct, for the support, education and maintenance of such wife or husband, and may also make all other orders for the disposition of the homestead and all other property, and for the custody and education of such minor children, and may require the husband or wife in default to give bond with sufficient surety to secure the payment of the allowance and the conveyance of the property and the performance of such duties in relation to the children as shall be ordered . 15 O.S. 2001, Sections 127-128. In other states there are specific processes for legal separation. In Oklahoma, however, the law does not spell out a process that must be followed. So long as a Court has jurisdiction over both parties to the marriage, a legal separation can be obtained via a motion pursuant to the statute noted above.
The Process of Legal Separation
The process of obtaining a legal separation in Oklahoma is very similar to that of a divorce, with the filing of a Petition in District Court. The major difference is that a legal separation does not terminate the parties’ marriage and does not allow either party to remarry. Instead, a legal separation provides for the division of assets, alimony, child custody, child support and other issues that a Judgment of Divorce does.
There are not any specific forms required by the Court to be filed in order to pursue a legal separation. However, many attorneys use the same forms that they use in a divorce. Those forms can be found in the Oklahoma State Courts Network in the Divorce Forms page.
In essence, the procedure is normally as follows:
- File Petition and pay filing fee with court clerk;
- Prepare and file Summons;
- Arrange for service of the Summons and copy of the Petition upon the opposing party;
- If service is made upon the opposing party, the opposing party is given a specific number of days in which to file an Answer with the Court and was served with a copy of the Petition;
- If no Answer is filed, the Petitioner could file a Motion for Default Judgment (unless children and/or real property are involved);
- If an Answer is filed, additional paperwork may have to be filed if the parties want to have the Court default the non-responsive Defendant;
- Any additional pleadings necessary (i.e. Temporary Orders, discovery, etc.);
- Eventually, proceed to final hearing on contested or uncontested issues or submit the legal separation as an uncontested filing to the Court and obtain the Judge’s signature.
Advantages of a Legal Separation
Although not a frequent choice, some couples may find that the benefits of legal separation outweigh the negatives. Once a legal separation agreement is drafted, negotiated and signed, the couple has a legally binding contract governing the outcome of matters relating to children and property.
Some Reasons for Legal Separation
Financial: In Oklahoma, you are able to divide retirement assets and other pensions exclusively without the concern that such action would be unfair or inequitable. Additionally, you are able to remain on your spouse’s health insurance since a divorce would terminate such coverage, which may leave you with thousands of dollars per year in out of pocket insurance costs.
Tax: Perhaps one spouse has greater tax-exempt income. By remaining married, all of the tax-exempt income can pass on without taxation to the other spouse.
Other Personal Reasons: A legal separation allows couples to begin the process of splitting up but allows them to stay married for personal reasons. For example, you may want to remain married so you can file joint tax returns. You may have financial investments you do not want to put at risk in a divorce. You may have religious reasons for a legal separation rather than a divorce.
Legal Separation v. Divorce: The Differences
Divorce differs from legal separation in several important aspects. A legal separation does not involve ending the marriage; rather it allows those who have grown apart to live apart while remaining married and potentially setting the stage for a future divorce. The parties remain legally married with all the rights and responsibilities that confer.
Property division is one of the most significant differences between legal separation and divorce. When a court decrees a divorce, property division occurs as part of the property settlement and distributed between the parties. The legal framework is the same for legal separation, except that no property division occurs at the time of separation. Instead, the spouses agree to how property will be handled pending the divorce or how the property will be distributed at a future date if a divorce doesn’t happen.
Child custody, visitation and support are also contentious issues in divorce and legal separation. Under Oklahoma law, the rights regarding custody, visitation and child support are the same in a divorce as they are in a legal separation. In either situation, the best interests of the children involved must be protected and enforced. Child support provisions must meet the Oklahoma child support guidelines. Frequently, parents who intend to get divorced reach an agreement regarding these issues. Sometimes, this can help them avoid the costs associated with a full-blown divorce process.
Another difference between legal separation and divorce is the affect each has on health insurance and other retirement benefits. With a legal separation, these benefits remain intact, while with a divorce they are subject to division. Sometimes, the parties’ employer will terminate coverage upon separation. This is something needs to be worked out between the parties and their employer.
In addition, in the city of Oklahoma City, the parties must be separated at the time of filing for divorce or legal separation. As a practical matter, a person cannot file for a divorce or legal separation until they have been separated for some period of time. Specific information regarding the necessary time frame is available from the local court clerk’s office. However, in most cases, the parties are separated prior to filing through an informal open-ended schedule of living apart.
Property Division in Legal Separation
In the context of legal separation, property division works much in the same way as in divorce. The difference is that, in a divorce, a court orders the division once and it’s final. A legal separation’s order is temporary until "the parties resolve all issues by a motion for divorce," according to Oklahoma’s Courts Network.
At the time of the legal separation, the common property and debts are subject to equitable distribution laws. Neither spouse can dispose of property or give away money during the separation without the other spouse’s written consent. Not all property interests acquired during the marriage are marital properties. Under Oklahoma law, only assets considered marital are property items that you received during the marriage, like an inherited property, excluding your gifting of monetary value to a person outside of the marriage. In an Oklahoma couple’s divorce, the dividing of property is likely to be 50-50, our legal separation lawyers note. This same division occurs during legal separation as well.
Child Custody Issues and Child Support in Legal Separation
When considering a legal separation, it’s important to understand how custody and child support are determined in Oklahoma. Child custody and visitation, or parenting time, as it is often referred to, are decided by the Court. Custody is about decision-making, where parents can agree on how to parent. If parents cannot agree, there will be an evidentiary hearing before a judge or jury, where witnesses are allowed, and the court may have a guardian ad litem appointed for the children. In many ways, the hearing is similar to a divorce trial. Once a judge or jury hears the evidence, they will then determine who will be given custody. So, it’s important to prepare for this process if you are filing for legal separation.
Child support is calculated based on the support guidelines used in Oklahoma. Oklahoma has presumptive guidelines that help make child support amounts fair and consistent statewide. The guide is over 500 pages long, and each page has detailed instructions on how to complete the worksheet. Oklahoma also provides on-line calculators that are easy to use. Without going into too much detail, the basic formula for child support is as follows: Net Weekly Income X Percent = Child Support Obligation. Net income is your gross income minus taxes , social security, mandatory retirement plans and health insurance. Then, take the father’s net income, multiply it by the appropriate percentage for the number of children. Then take the mother’s net income, and multiply it MULTIPLY by the same percentage. Then, add each amount together for the basic amount of child support. Oklahoma law provides for additional support called sundries, which are health care premiums and work-related daycare. A basic worksheet would look like this: $1,250, + -0 = $1,250 $600 + -0 = $600 $1.250 + $600 = $1,850, per month. There is another worksheet when a parent has a significant amount of overnight visitation where the child spends more than 104 nights per year with the non-custodial parent. The calculations are similar, except the expense of the child is divided by the number of overnights. If making the decision of whether to file for legal separation or divorce, often the first question people ask is "What’s the difference between legal separation and divorce?" The answer is really that there is no difference. Legal separation is just a tool to help get the husband and the wife apart, so they can begin the emotionally difficult process of divorce.
Legal Separation Agreement in Oklahoma
Legal separation agreements in Oklahoma are legally binding contracts that spouses can enter into while they are either separated or divorce proceedings are pending. These agreements, which are sometimes referred to as marital separation agreements or martial separation agreements, are enforceable by order of the court.
These agreements must comply with all statutory requirements for various provisions in order to be enforceable in the future and some provisions are only enforceable if the agreement complies with specific standards. If the legal separation agreement does not comply with these requirements, the court may choose to not enforce one or more provisions or the legal separation agreement may be deemed completely invalid.
As a result, legal separation agreements are best drafted by an attorney. Although drafting a legal separation agreement is not required, it is a good idea because improper provisions may have serious consequences. For example, certain provisions regarding the custody and support of a child may be deemed invalid and unenforceable if certain requirements are not met.
For instance, the agreement must be in the best interest of the child. The agreement must be approved by the judge which will determine the best interest of the child. In addition, support of a child must be ordered in a specific amount and manner if the amount or manner is different than what statutes allow. Otherwise, the court may refuse to enforce the child support agreement.
The court analyzes every legal separation agreement to ensure it does not contain any illegal provisions. Typical provisions in a legal separation agreement include provisions covering:
Going from a Separation to a Divorce in 5 Steps
You can convert an Oklahoma legal separation to a divorce by filing a Petition to Dissolve the Marriage in the appropriate court. That is the required document to start a divorce proceeding. Your Petition will follow the same outline of your Separation. That means information as to children, property and debts, plus the request for relief. The case is given a divorce case number and docketed as a divorce. At that point, the rules of procedure relating to divorces apply. You are no longer bound by any restrictions in the divorce decree. For example, if your decree prohibits the children from going to private school, the restriction is no longer in effect. You can enroll the children in private school. A motion is required to change legal custodianship of the child. Oklahoma courts have set out various factors to determine if a major modification is appropriate. You will also be required to wait 90 days before the judge can sign your divorce decree. It is important for your lawyer to understand the new requirements under the new legislation which took effect November 1, 2018. Two court hearings are required in most cases. Until the judge has you sign the "Form 9" order, and the 90 day waiting period has expired, the terms of the Separation Agreement remain effective.
How to Find a Lawyer for Legal Separation
My advice on finding a lawyer to help you with your Legal Separation in Oklahoma is to go with an experienced Oklahoma family law attorney. I have seen what can happen to pro se litigants (people who do not hire a lawyer), and it’s not pretty. Even if your legal separation is uncontested, it is still very important for you to have a lawyer help you get your legal separation written up. The lawyer will give you the representation and guidance you need to make sure you file all the necessary documents and information with the Oklahoma Court . Having a lawyer can eliminate a lot of problems you would have to face if you tried to do it yourself.
The professionals at the King Law Firm are experienced in handling legal separations in Oklahoma and will work with you to understand your needs and concerns. Finding a legal separation lawyer willing to give you the personal attention you need is very important, especially with a sensitive matter like a legal separation.
