A. Craig Abrahamson can help you navigate divorce in Oklahoma and other obstacles on the Boulevard of Broken Promises
TEMPORARY ORDER HEARING
If you do not have minor children, the first court appearance will not be set automatically by the court. Typically the first appearance will be a temporary order hearing. Getting the Court to set a date and time for the temporary order hearing requires a Motion or Application for Temporary Order and a request to set it for hearing. If you do have minor children but were not able to reach agreement on the terms of a temporary order at the Parenting Plan Conference, you will have to request the assigned judge to set a date and time for the hearing, typically the request is made the same day as the Parenting Plan Conference once you receive your referral, (See Part 1.)
A temporary order governs the rights and responsibilities of the parties while the case is pending. In Tulsa County, the court dockets are very crowded and congested. Typically, the court will set a hearing for any matter during the pendency of the case from three (3) to six (6) weeks from the date the request is made. This makes for protracted cases during which it may be necessary for the court to determine who will occupy the marital residence, who will possess and use which vehicles, who will control and manage a family business, who will be responsible to pay which obligations of the parties, and whether either party will pay temporary spousal support and how much it will be. When children are involved, temporary custody, visitation and support are also required.
The court will seek to maintain the status quo ante, which means the status quo before separation or filing for divorce. Of course, two households cannot be operated on the same budget as one, and often there is not enough cash flow to meet the desires – or even needs – of both parties, and the court will be called upon to make tough choices. As is true of the overall case, reaching the terms of the temporary order by agreement gives the parties more control over their own destiny than leaving it to a judge to impose their destiny on them.
The Temporary Order Financial Declaration is a form that must be prepared for the temporary order hearing. This document summarizes gross income, deductions, net income and monthly living expenses. Your attorney may ask you to supply supporting evidence of theses items to prove the actual needs and abilities to pay of the parties.
Child support is based on guidelines adopted by the legislature. It is calculated using gross income before any deductions. Your pay stubs and tax returns are the most relevant documents. If a child has special or extended needs beyond those contemplated by the guidelines, documentation of those needs is crucial as well. Spousal support and all other financial decisions in the temporary order require consideration of net income after taxes.
Child custody and visitation are decided based upon the best interests of the child. Child custody can take many different shapes. Only occasionally used now, the most common form of custody historically was one that gave the mother custody of the children during the school year and the father custody during the summer. For many years the sole custody arrangement was the most common where one parent had full and sole custody all year long and the other parent had visitation but no decision making authority. Growing in popularity now is the joint custody arrangement. In Oklahoma this is a very broad term and can mean vastly different things. The statute provides that parents may agree, pursuant to a written plan filed with the court, to share “some or all” of the aspects of “physical or legal” custody. Physical is where the child lives and the visitation schedule. Legal custody is decision making. Some or all means the sharing of these is on a continuum and is not necessarily the same in all cases. Joint custody can mean the children live 50-50 time with each parent or practically all the time with one and only alternating holidays or weekends with the other. The same with decision making. It can mean they parents must agree on every significant facet of child rearing or only that they must discuss, but one parent has a controlling vote, or anywhere in between. It is important to note that of all the factors that might go into a “best interests” test, the only one the legislature actually included in the statute is the court is required to consider which parent is most likely to foster a healthy relationship between the child and the other parent.DISCOVERY
Discovery is that phase of the case where information and evidence is gathered. It is the time to “discover” what evidence your opponent has and to gather evidence from third parties. The Court procedures allow for many different “tools” to conduct discovery. Some are used more commonly than others. The two most common forms of discovery are Interrogatories and Requests for Production. Requests for Admissions are quire common. Also very common are subpoenas to third parties to produce documents. Also common but less frequently used are depositions. Additionally requests for entry on land may be used as may requests for physical or mental examination. The goal of discovery is to obtain all the information and evidence needed to make intelligent settlement decisions and to prepare the case for trial.
Interrogatories are written questions which are submitted to the opposing party which the opposing party must answer in writing and under oath. Requests for Production are used to require the production of documents, things and electronically stored data. The other side is required to produce the items requested for inspection and copying. Although the rules require production of originals and to ow the other side to make copies if they choose, in Tulsa County is customary for each side to make copies of the requested documents and to produce copies the other side may keep. The two forms of discovery are employed in almost every case to ensure that each side has full knowledge and disclosure of all financial documents. They are also used to obtain social media content and other relevant evidence.
Requests for Admission are also often employed in concert with Interrogatories and Request for Production. The statute states that if a party denies a request for admission and the other side proves it was true at trial, the other side is entitled to an award of attorney fees incurred in proving the matter denied. Typically Interrogatories asking for all facts on which a denial is based and Requests for Production requesting all documents supporting the denial will be used together with the Request for Admissions.
When evidence is in the possession and control of third parties, a subpoena may be issued to the third party requiring production. Depositions provide an opportunity to cross examine a party or witness under oath with a court reporter making a complete record, usually in the law office of one of the attorneys. These are very expensive and often unnecessary because the parties have lived together for so long that they each know the other well enough to anticipate reliably the testimony to expect from the other. When this is not the case depositions may be useful to obtain that knowledge and tie the other side down to a single “story.” Requests for Entry may be used to obtain access to the former marital home for purposes of inventorying contents or obtaining an appraisal. Requests for Physical or Mental Examination may be used in connection with a child custody battle and requires the opposing party to submit to a professional examination at the cost of the party requesting it. MEDIATION
In Tulsa County, the court will not set a case with minor children for pretrial conference until the parties have attended mediation. In cases without minor children, the court can and may also require mediation, and upon request of one of the parties almost certainly will. The parties are only required by the court to attend mediation one time. Although this mediation requirement may be fulfilled by mediating the temporary order, most commonly it is reserved for attempting to settle the final terms. The parties, of course, are free to choose to mediate both.
Mediation is a settlement conference attended by the parties, who are most often accompanied by their attorneys. It is conducted by an independent person called a mediator, usually a lawyer, whose job it is to help the parties find common ground for settlement. The mediation is normally held at the office of the mediator. No settlement is perfect, but settlement gives the parties more control over the outcome than they would have if a judge unilaterally dictated the terms of the final decree. It has been said that you know if you have the best settlement when everyone hates it equally. Mediation is not all about who is right on the law or how much weight certain facts will carry. It is more about the likelihood of alternative outcomes, the risks of worse outcomes, and choosing a path that you can accept.
Mediation sessions usually last two to four hours. Depending on the mediator and the animosity levels between the parties, the mediation may start with everyone in the same room. Most mediators begin with a short explanation of the process, their roles and any rules they may have. They may obtain the parties signatures on the contract to mediate and pay the mediator. They may ask each party to state their positions and perceptions of the areas of dispute. It is typical after the opening session for the mediator to place the parties and their attorneys in separate rooms. The mediator will then go back and forth between the parties, Separating the parties makes for more candid conversations with the mediator. Some mediators may routinely start with the parties separated. In cases involving domestic abuse protective order or other manifestations of high conflict, and upon request, most mediators will start with the parties separated.
Whenever the parties feel they are making progress, they can agree to keep it going as long as they wish until they reach a final agreement. On the other hand, if it becomes obvious settlement is futile, it can be terminated after a reasonable effort has been made. Mediators are usually paid by the hour at hourly rates comparable to those charged by the parties’ attorneys. The cost of mediation is normally split equally.PRETRIAL CONFERENCE
Pretrial conference is a conference between the lawyers and the judge. The purpose of the pretrial conference is to streamline the case for trial. Prior to the pretrial conference the parties are required to exchange lists of witnesses and the substance of their testimony, lists of exhibits, physical copies of the exhibits, and objections each side may have to the other party’s exhibits. The lists are contained in a pretrial conference order. The pretrial conference order also recites pertinent data about the parties, such as the date of marriage, the dates the various pleadings were filed, the issues agreed upon, if any, the issues remaining to be resolved by the trial, deadlines for briefs, if any, and other “housekeeping” matters. The trial date is provided by the judge at the pretrial conference.
Since the parties are required to list all their witnesses and substance of testimony, to physically exchange exhibits, and to review the other side’s exhibits to determine what objections should be raised, pretrial conference is a time intensive part of the lawyer’s trial preparation and is a very expensive phase of the case.TRIAL
Of course, trial is the most expensive phase of the case. Each side presents their evidence and the judge makes a decision. The party that filed first is called the Petitioner, and the Petitioner goes first. They may begin with an opening statement summarizing the issues to be dealt with and the evidence to be produced. Argument is not allowed and the opening statement is not evidence to be considered by the judge. The other party called the Respondent may give an opening statement after the Petitioner or reserve it until it is the Respondent’s turn to call witnesses.
The Petitioner’s lawyer, calls their first witness and asks questions, called direct examination. During direct examination of any non-hostile witness, only open ended questions may be asked. Questions that contain or suggest the answer, called leading questions, are prohibited. After the Petitioner’s lawyer has finished asking the witness question the Respondent gets to ask the witness questions about the subject matter covered in direct examination. This is called cross examination. On cross examination the lawyer is allowed to ask leading and suggestive questions, unless the witness is the lawyer’s client. After cross examination the Judge may permit the first lawyer to ask questions about matters covered on cross examination. This is called re-direct. Then the other attorney gets to have re-cross examination. When the first witness is done the next witness is called and the process repeats. When the Petitioner has called all their witnesses, the Petitioner will “rest,” and the Respondent gets to call their first witness, The process is repeated with direct, cross, re-direct and re-cross until all the Respondent’s witnesses have testified. Rarely, the court may allow the Petitioner to call rebuttal witnesses if the Respondent raised facts that could not have been anticipated by the Petitioner. If this is allowed, the court may further allow the Respondent to call witnesses to rebut the rebuttal, called sur-rebuttal.
Sometimes the closing arguments are made in writing. This most often occurs when one or the other party has requested written “findings of fact and conclusions of law.” Lawyers request written findings and conclusions usually when the evidence or the law is complicated, convoluted, widely disparate or it is otherwise necessary to understand exactly how the judge got to the final decision for appeal purposes.
After all the witnesses have testified the attorneys make closing argument. Petitioner goes first, and may reserve a portion of their allotted time to speak after the Respondent. After all closing arguments, the case is deemed submitted to the judge. Occasionally judges will render a ruling immediately after the trial. More often, they will take the matter under advisement, which means they will review all their notes and the evidence and think about the result they wish to make. In such cases the judge will either set a date by which to expect the judge to render a written ruling, or set a date the judge will announce the decision in open court.PRESENTATION OF THE FINAL DECREE
After the Parenting Plan Conference, if any, once the parties reach an agreement on the final terms of their divorce, none of the steps outlined above that have not taken place yet need to occur. In other words if the whole case is settled after parenting plan conference, no further discovery, mediation, pretrial conference or trial need occur. The terms of the settlement are written up in the form of a final decree and signed by all parties and their lawyers. In some cases, the parties may even have agreed on all the terms of their divorce before the case is even filed. This is called an uncontested divorce. In these cases the temporary order, if any, and final decree can all be written up at the same time as the Petition is filed to start the case. If there are children the temporary order in an uncontested divorce can be presented to the judge at the parenting plan conference. Whether the case started as an uncontested divorce or not, once agreement is reached, and after the appropriate waiting period, ninety (90) days with children and ten (10) days without children, the final decree can be presented to the judge. This requires one of the parties, which by custom is usually the Petitioner, to appear before the court and give brief testimony. The testimony relates to the facts giving the court jurisdiction (residency of the parties and children), proper venue, grounds for the divorce, and assurance the settlement is fair and equitable to the parties and in the best interests of the children. When the judge signs the agreed decree, the case is over, although in Oklahoma you are not allowed to marry anyone other than the other party in Oklahoma for six months (or marry outside Oklahoma and return to live here).To learn more about A. Craig Abrahamson visit AbrahamsonLaw.com