If you are getting divorced in Oklahoma, do you know what property you get to keep and what you have to split with your spouse? Who will be responsible for your marital debts?
Oklahoma is an equitable distribution state, meaning that the marital property will be split between spouses in a way that is just and reasonable. The court decides what’s just and reasonable based on the complete picture of how each of you contributed to the marriage and what each spouse will need to move forward after divorce. The division does not have to be equal, but it must be fair.
The court’s involvement in the division assumes that you could not work together with your spouse to resolve your property disputes. Throughout the divorce process, the spouses will have opportunities to decide how they want to split their property between themselves. The court will usually accept a written separation agreement that details this distribution of property, as approved by both spouses. It is only where you could not reach a compromise with your spouse that the court will step in and divide your property for you.
Only Marital Property Will be Divided
Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to the spouses separately, and how much there is of each. Generally, marital property is all property acquired or earned during the marriage, regardless of what title says. Separate property is property you owned before marriage. It also includes gifts and inheritances that you receive during marriage. There are circumstances, however, when an increase in the value of your separate property will be characterized as marital property.
For example, if you had a cabin before marriage that both spouses updated and remodeled during marriage, then the increase in the cabin’s value is marital property because it comes from joint efforts during marriage. On the other hand, if you bought an investment property in an up-and-coming neighborhood before marriage and it improves in value during the marriage simply because the rest of homes in the area do the same, then that increase in value remains your separate property.
At divorce, the court will divide the marital property. Any separate property will remain in the hands of the spouse who owned it before or during marriage, with some exceptions. If you had children during marriage and your spouse has custody, then the court could give your spouse some of your separate property to help support the children. Also, the court could include your separate property if you have a significant amount of it, there is little marital property, and your spouse has limited income potential.
Factors Considered in Dividing Property
Rather than rely on a rigid set of rules when splitting property between spouses, the court has discretion to consider a variety of factors unique to each marriage. Despite the court’s relative freedom to decide what is just and reasonable, it should look at how each spouse contributed to the marriage – including the contributions of a homemaker – and the conditions each spouse will face alone after the divorce, such as earning potential, medical needs, and childcare costs. The court should also review the length of the marriage, the health and ages of the spouses, tax consequences, and liabilities.
Liabilities, or debts, are among the most common types of property that must be divided at divorce. The court will treat debts the same as any other real, personal, or intangible property. Before dividing a debt, the court will have to characterize it as either marital or separate and then assign responsibility for it based on the same equitable principles applied to distribution of assets.
Alimony Satisfied by Separate Property
Alimony is a payment from one spouse to the other to help sustain the recipient spouse after divorce. If you request alimony in Oklahoma, the court can order payments based on the value of your spouse’s real and personal separate property. Although the court will award alimony at the same time it grants your divorce, you can request temporary support payments at any time during the divorce process.
Similar to the division of property, the court’s order for alimony must be just and reasonable. Payments can be periodic (monthly, for example), or as a lump sum. The amount of support is based on many of the same factors as the division of property. Some other factors include your education and earning capacity, whether you contributed to your spouse’s education and earning power during marriage, and the standard of marital living you enjoyed. The court is also free to look at any factor relevant to the award of support, such as your spouse’s ability to pay.
You can read the law on division of property and alimony in the Oklahoma Statutes subsection 43.121(B). To read more on how an increase in the value of separate property during marriage can transmute into marital property, see the case Templeton v. Templeton, 656 P.2d 250 (Ok S.Ct 1982).