Authored By: Legal Aid Services of Oklahoma, Inc.
- Read this in:
- Spanish / Español
If you are thinking of ending a relationship, the first question you should consider is, "Am I married?" You can be married either in a ceremony or by "common law." If you are married, you can only end the relationship by getting a divorce.
How do you know if you are married by common law? You are married by common law if you and your spouse are eligible to be married (you are over 18 and not married to anyone else) and you have held yourselves out as married. To decide whether you have held yourselves out as married, a judge will look at how you have acted, such as whether you have used the same last names, had a child together, told people you were married, leased an apartment as husband and wife, or filed joint income tax returns.
Grounds for divorce
To get a divorce, you must show that there are grounds for divorce. The most common ground is incompatibility. You and your spouse are incompatible if at least one of you is willing to testify that you cannot get along and that you want a divorce. Other common grounds include abandonment for one year and adultery.
You must live in Oklahoma for 6 months before you can file for divorce. You must file your case in the county in which your spouse lives, or in which you have lived at least 30 days.
The court will decide who gets custody of any children born to you and your spouse, even if the children were born before your marriage. If you cannot reach an agreement on custody, the court will hold a trial and decide what is in the best interests of the children. Some judges will require you to go to mediation, where a neutral third person tries to help you agree. Sometimes, couples agree to joint custody, which means they both will decide together all major decisions affecting the children.
Usually, the parent who does not get custody of the children gets visitation rights. Visitation often provides contact with the children every other weekend, every other major holiday, and an extended time in the summer but visitation orders vary. If the parent without custody is considered dangerous to the children, the judge may restrict visitation, or require that it be supervised. Grounds for restricting visitation include drug use, abuse of the children, abuse of the other parent, and alcohol problems.
Child Support, Medical, Insurance and Day-care Costs
The parent who does not have custody is usually required to pay child support. The amount of support is based on the income of the parents. The court will also order the other parent to pay a part of the children's medical expenses, health insurance, and day-care costs.
Property and Debts
The court can divide most of the property that you and your spouse acquired during the marriage, regardless of whose name it is in. If you and your spouse are not able to agree on how to divide your savings, furniture, cars, house, and other property, the court will make that decision. The court can also return any separate property to its owner. Separate property is property either of you owned before you got married, or that you received during the marriage by gift or inheritance. The court will also divide the various debts of the marriage.
Alimony is money that one spouse is ordered to pay to the other for support. Alimony depends on the length of the marriage, the need and income of the parties, and other factors. There are no clear guidelines on when a judge will order alimony, or how much the judge will order. The best way to find out about alimony is to ask an attorney for an opinion.
In a divorce, a woman can ask the judge to change her last name back to her maiden name or any other former name. The judge cannot change the names of the children.
To start a divorce, you must file papers with the court. You then must have copies of the papers delivered to your spouse. If you cannot locate your spouse, you can publish notice in a local newspaper.
If you have children, there is a 90-day waiting period before you can get a divorce. In some counties you will be required to attend a class on the effects of divorce on children.
As soon as you file a petition for dircorce and serve notice to your spouse, an Automatic Temporary Injuction goes in to effect. Neither of you can sell or give property away, damage property, take money from bank accounts or transfer money. You can use money you would normally use to take care of the household expenses and children.
Some counties require you to attend a parenting plan conference to work out details about the children during the divorce process. At the parenting plan conference the parents will sign a temporary order agreeing on child care, visitation, budgets, expenses, and property. If you cannot agree, you will have to go to mediation or even have a court hearing. You can also request a Temporary Order for child support, living expenses, who pays the debts and who keeps which car or other property, until the final divorce decree.
The temporary order stays in effect until the court enters a final divorce decree.
To file a divorce, you must pay a filing fee. Serving the papers costs more. The amount depends on the method you use. If you cannot afford court costs, you can file a pauper's affidavit. A pauper's affidavit is a form that summarizes your financial situation. If the judge decides that you cannot afford to pay court costs, he or she will let you file your case for free.
The best way to obtain a divorce is to hire an attorney. Most attorneys charge a retainer, or deposit, at the start of the case. The attorney then charges an hourly rate against the deposit.
If you cannot afford an attorney, you can contact Legal Aid Services of Oklahoma, Inc. We represent low-income people in divorce cases, but do not have enough attorneys to take on every case.
Many people do their own divorces. Even if you do your own divorce, it is a good idea to get the advice of an attorney, if possible.