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 this article doesn't answer all your divorce-related questions, 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" before their marriage, also known as a "prenuptial agreement," which specifies how the couple will split their property 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 on how to divide their property, a court will have to make that decision for them.
In a divorce, it's vital to know whether your property is "marital" or "separate." Your separate property remains yours, and the court will not divide it in the divorce. (Okla. Stat. Ann. tit. 43 § 203.) However, 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 court will likely categorize the purchase as your separate property.
Unless you and your spouse agree otherwise, the courts will make the final determination as to whether something is separate or marital property.
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. Next, the court will place a value on each piece of marital property and marital debt to determine the "marital estate."
Finally, the court will decide how to divide the couple's net worth between the spouses. Oklahoma is one of many states that follows an equitable distribution model for property division. Equitable distribution requires judges to divide property "equitably" between the spouses.
Oklahoma explicitly states that equitable division does not necessarily mean equal or 50/50, instead, it just means that the division of property has to be "just and reasonable." 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 judges must divide all marital property equally between the spouses. (Okla. Stat. Ann. tit. 43 § 121 (B).)
Judges in Oklahoma have broad discretion when deciding how to divide property and debt in a divorce. There's no specific set of factors for courts to follow, but when deciding how to divide property, the judge may consider:
Oklahoma courts can't consider the spouses' personal conduct unless it affected the value of their property. For example, the court will not consider one spouse's infidelity during the marriage unless the spouse used marital funds to pay for activities, such as a vacation with a third party.
Before the court begins dividing marital property and debt, 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 judge will value each piece of property 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 challenging to value. With complex valuations, it may be helpful to hire a professional appraiser, business valuator, or other expert to provide a reliable value.
If either spouse earns a pension during the marriage, the portion earned during the marriage is "marital property" and subject to division in the divorce. Typically, any pension benefit a spouse earned before the marriage belongs to the earning spouse as separate property. Otherwise, the judge will divide the marital portion of the pension equitably between the spouses. The same rules apply to retirement benefits, such as a 401(k) defined-benefit plan.
When splitting military benefits, the court must follow specific guidelines. If a spouse earns Special Monthly Compensation (SMC) for the loss or loss of use of an organ or extremity, the court treats those payments as the injured spouse's separate property. (Okla. Stat. Ann. tit. 43 § 121 (C).) Additionally, Combat-Related Special Compensation (CRSC) is the spouse's separate property if the injured spouse can prove to the court that the payment is for combat-related loss of limb or loss of bodily function, and the payments began before either spouse filed for divorce. (Okla. Stat. Ann. tit. 43 § 121 (D).)
When dividing disposable retired or retainer military pay, the court must determine whether the pay belongs to the earning spouse or if it's marital property. If the court deems the payments as marital property, the judge must submit clear reasons for the decision with the award. (Okla. Stat. Ann. tit. 43 §121 (E).)
If you have questions about the division of property in Oklahoma divorce, you should consult an experienced Oklahoma family law attorney for help.