Dividing Property in an Oklahoma Divorce
If you’re considering a divorce in Oklahoma, you need to know what happens to the property you and your spouse have accumulated during your marriage. This article will discuss the general rules of property division. If you have questions that aren’t answered in this article, you should contact an experienced family law attorney in Oklahoma for answers.
The term “property” includes a wide variety of assets, such as real estate, vehicles, furniture, jewelry, financial accounts, retirement accounts, and business interests. If you and your spouse can agree on a fair split of your property, it is generally preferable to do so, because if you can’t agree, you may end up in an expensive, drawn-out court battle, after which a judge will decide who gets what.
Sometimes, spouses have signed an “antenuptial agreement” prior to their marriage, also known as a “prenuptial agreement,” which specifies how their property will be split in the event of a divorce. If the prenup is valid and enforceable, it will dictate how property is divided. If a divorcing couple did not sign a valid prenup, and they can’t agree how to divide their property, a court will have to make that decision for them.
Marital Versus Separate Property in Oklahoma
In a divorce, it’s vital to know whether your property is “marital” or “separate;” your separate property remains yours and cannot be divided by a judge, but Oklahoma courts can divide marital property between spouses.
Generally, money earned and property accumulated during the marriage is marital property. Property that a spouse obtained before the marriage or after the divorce is that spouse’s separate property.
There are important exceptions to the general rule that property acquired during the marriage is marital property. If you inherit property or receive a personal gift of property from someone other than your spouse during the marriage, it remains your separate property. Also, if you purchase property during the marriage, titled in your own name, with funds you had prior to the marriage (or from an inheritance or gift), that purchase is also considered your separate property. These are the general rules, however, courts can make the final determination as to whether something is separate or marital property.
How is Property Divided during a Divorce in Oklahoma?
Oklahoma courts follow specific rules when dividing a couple’s property during divorce. First, the court decides what property is separate property and what is marital. Each spouse receives their own separate property.
Next, the court adds up the value of the marital property and subtracts the value of the couple’s debts to come up with their net worth.
Finally, the court will decide how to divide the couple’s net worth fairly between the two of them through a process called “equitable division.” Oklahoma law specifically says that equitable division does not necessarily mean equal or 50/50, rather, it just means that the division of property has to be “just and reasonable.” This means that the court can give one spouse more than half of the marital property if the judge believes that division is fair. Oklahoma differs in this way from a community property state, where all of the marital property is divided equally.
Judges in Oklahoma consider the following factors when determining a fair division:
- each spouse’s ability to work
- either spouse’s disabilities
- which parent will be caring for the children
- the amount of alimony paid from one spouse to another
- the spouses' debts
- any fraud committed by one spouse on the other, and
- any conduct that increased or decreased the value of marital property
Oklahoma courts are limited in what they can take into account when dividing marital property. For example, Oklahoma courts can’t consider which spouse has a greater financial need for the property, or who contributed more money to the purchase of property. In addition, the courts can’t consider the spouses’ personal conduct unless it affected the value of their property; infidelity cannot be considered by the court as a factor in equitable division.
How is Property Valued?
When the court values marital property, it needs to figure out what each piece of property is worth. In Oklahoma divorce cases, the value of property is its current “fair market value,” which is what a buyer would be willing to pay, and a seller willing to accept, for the property on the open market. Since this varies for any particular piece of property, the fair market value of property is determined on a case-by-case basis.
For a house value, for example, Oklahoma courts are likely to accept an appraisal from an experienced real estate agent, or may even accept the values listed by an online property website, such as www.zillow.com. For a car, the court may use the figures provided by Kelly Blue Book at www.kbb.com. Other property, like an interest in a small business, can be more difficult to value. With complex valuations, it may be helpful to hire a professional appraiser, business valuator, or other expert to provide a reliable value.
Dividing Pensions, Retirement and Disability
When a pension is earned during the marriage, the court decides what fraction will be given to the other spouse. If only a portion of a pension or retirement account was earned during a marriage, the court chooses a fraction of the portion that was earned during a marriage, and divides that portion fairly between the spouses.
When splitting disability benefits, the court decides whether the disability payments are meant to replace future wages, or meant to replace retirement benefits. If the disability payments are meant to replace future wages, the spouse gets to keep them like he or she would normally keep a salary after divorce. If the disability payments are a replacement for retirement benefits, however, those payments can be divided between the spouses.
If you have questions about the division of property in Oklahoma divorce, you should consult an experienced Oklahoma family law attorney for help.
For a full list of the factors that Oklahoma courts consider when dividing property during a divorce, see Oklahoma Statutes Title 43, Section 121.