News from The Boulevard

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WHAT IS ANNULMENT AND WHEN DOES IT APPLY INSTEAD OF DIVORCE?

I frequently get asked if a client should pursue an annulment instead of a divorce “because we have only been married such a short time.” In Oklahoma, annulment has nothing to do with the duration of the marriage.

Annulment is essentially a rescission of the marriage contract. Unlike a divorce, it does not terminate a marriage. Rather, it adjudicates the marriage never existed. There are certain statutory grounds for annulment, and equitable considerations that allow for rescission of any contract can also be applied to annul the marriage contract. Some grounds for annulment are absolute. These grounds prohibited the marriage in the first place and there is nothing the parties can do to rehabilitate their marriage to make it legal. Marriages of certain people related by consanguinity are prohibited, and any marriage between them is void FROM THE OUTSET. These include marriage between ancestors and descendants of any degree, stepparents and stepchild, aunts and nephews, uncles and nieces, brothers and sisters of the half or whole blood, and first cousins. OKLA. STAT. 43, §2. [ OKLA. STAT. tit. 43, §3 prohibits same sex marriage, but this limitation after Obergefell v Hodges, 576 U.S. 644 (2015) has been held unconstitutional, Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), cert. denied, 135 S. Ct. 271, 190 L. Ed. 2d 139 (2014).] Multiple or polygamous marriages are prohibited and void. OKLA. CONST. ART. 1, §2. Void marriages may be annulled at any time.

Other marriages that are otherwise valid may be voidable, meaning that if no action is taken to annul the marriage it will remain valid. Several statutes give rise to voidable marriages. OKLA. STAT. 43, §126 prohibits remarriage to third person within six months of divorce. A marriage entered during that six-month window is voidable. The annulment proceeding would have to be brought within those six months because if the parties continue to live together as a married couple after the six months, their relationship will ripen into a common law marriage. OKLA. STAT. 43, §128 prohibits marriage of mental incompetents. The annulment would have to be commenced before the incapacity ceases as cohabitation after it ceases is a complete defense. Marriages by underage parties are prohibited and if entered are voidable. OKLA. STAT. 43, §3. To be annulled the action would have to be commenced before the parties reach the age of majority because living together a s married couple after that will ripen into a common law marriage.

As is true with contracts in general that may be rescinded on equitable grounds, so may the marriage contract. Blunt v. Blunt, 1947 OK 13, 198 Okla. 138, 176 P.2d 471, 472 (1947). Of, course this would include fraud, Blunt, Id.; Kildoo v. Kildoo, 1989 OK 6, 767 P.2d 884, 885 (Okla. 1989).

Fraudulent behaviors that have been sustained as grounds for annulment include marriage motivated solely to obtain a green card for immigration purposes, misrepresentation of the paternity of a child, misrepresentation or deceit with regard to impotence, false claim of pregnancy, and concealment of illegal drug use. An additional example of fraudulent behavior which has supported an annulment decree is the “secret intention at the time of the marriage not to engage in sexual relations with … the husband.” [Footnotes omitted.]

§ 25:3. Equitable grounds for annulment, 4 Okla. Prac., Okla. Family Law § 25:3.

If a child is born during a voidable marriage, the child is a legitimate child whether the marriage is annulled or not.

In determining the legitimacy of the child we are guided by certain well-settled rules of law. A marriage entered into by persons prohibited from marrying under the provisions of 43 O.S.1941 § 3, is voidable only and not void. Puntka v. Puntka, 174 Okl. 517, 50 P.2d 1092; Hughes v. Kano, 68 Okl. 203, 173 P. 447; Hunt v. Hunt, 23 Okl. 490, 100 P. 541, 22 L.R.A.,N.S., 1202. A child born during wedlock, whether conceived before or after the marriage, is presumed to be legitimate and this presumption may be overcome only by strong and conclusive evidence. 10 O.S.1941 §§ 1, 3; Davis v. Davis, 169 Okl. 133, 36 P.2d 471. And the subsequent annulment of a marriage has no effect on the legitimacy of a child of the marriage theretofore begotten. 12 O.S.1941 § 1283.

Stone v. Stone, 1944 OK 28, 193 Okla. 458, 145 P.2d 212, 214.

The process and procedure for an action for annulment will be the same as in any action to rescind a contract.

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WHAT IS A PRENUPTIAL AGREEMENT? DO I NEED ONE?

AN ANTENUPTIAL OR PRENUPTIAL AGREEMENT is a contract made between two people prior to marriage to address in advance issues that may arise after marriage in the event of their divorce or the death of one of the spouses.  The antenuptial agreement may address how matters such as the separate property of the parties, jointly acquired property of the parties, inheritance or either party, or support alimony, and other issues, will be handled in the event of a divorce.  Prenuptial agreements fall withing the scope of the Statute of Frauds, and therefore must be in writing and signed by both parties.  Okla. Stat. tit. 43, §121, makes the division of marital property subservient to a valid antenuptial agreement, even if it waives a right to equitable distribution of marital property. Griffin v. Griffin, 2004 OK CIV APP 58, ¶ 11, 94 P.3d 96, 99, 2004 WL 1506158.  Antenuptial agreements may similarly be used to waive alimony, Griffin v. Griffin, Id.; to waive a spouses right to elect a forced share in probate, Barr v. Dawson, 2007 OK CIV APP 38, ¶ 11, 158 P.3d 1073, 1076, 2006 WL 4513792; to waive the right to attorney fees in a divorce case, Griffin v. Griffin, Id., to waive the homestead rights of a surviving spouse, Matter of Est. of Meyers, 1985 OK 87, 709 P.2d 1044, 1048, 54 USLW 2315; and to waive the right to a spousal allowance during the pendency of probate, so long as minor children are not involved, Matter of Est. of Meyers, 1985 OK 87, 709 P.2d 1044, 1048, 54 USLW 2315.

Although an antenuptial agreement has been defined as a contract between a man and a woman expected prior to marriage, there is nothing in the Oklahoma statutes so limiting their use, and any such limitation after Obergefell v Hodges, 576 U.S. 644 (2015) would presumably be held unconstitutional.  Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), cert. denied, 135 S. Ct. 271, 190 L. Ed. 2d 139 (2014).

In general, a prenuptial agreement is a contract like any other, which must be supported by consideration, and can be avoided by a showing of fraud, duress, coercion, overreaching, and the like.  Matter of Burgess’ Est., 1982 OK CIV APP 22, 646 P.2d 623, 626, as corrected (Mar. 30, 2004).  As a general rule, the marriage is sufficient consideration to support the agreement.  Burgess, Id.  The Burgess case, although only a Civil Court of Appeals case, laid down the generally accepted principles for testing the validity of a prenuptial agreement.

Certain tests, peculiar to antenuptial agreements, have been cited in considering their validity. As summarized in an excellent recent law review note-Stamets, “Husband and Wife: Drafting an Antenuptial Contract in Oklahoma,” 32 Okl.L.Rev. 220, 228 (1979)-these issues are:

1. Is fair and reasonable provision made for the (party opposing the contract)?

2. If not, was a full, fair, and frank disclosure of the (other spouse’s) worth made before execution of the contract?

3. If neither of the above, did the (party challenging the contract) in fact have a generally accurate knowledge of (the other’s) worth?

The Burgess case goes on to explain that these three tests are in the disjunctive – connected by the word ‘or” not “and.”  Only one of the criteria must be met for the agreement to be enforceable.              The most important point to remember concerning the process and procedure of a prenuptial agreement is it must be executed before the marriage.  A “post nuptial” agreement is not entitled to the deference a prenuptial agreement is.  The second most important thing is the agreement must satisfy at least one of the Burgess  criteria for validity.  The second criterion is the easiest to prove if the full and complete disclosure of assets and liabilities is actually attached to the agreement in the form of exhibits stating the financial details for each party.  Finally, to eliminate the possibility of equitable defenses to the agreement, the attorney drafting the document should insist the other party have legal advice before signing.  It should be executed in advance of, not at the time of, the marriage ceremony to eliminate claims there was no fair opportunity to review it.  Consideration should even be given to video recording the signing to eliminate claims of duress, coercion, overreaching, and the like.

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A. Craig Abrahamson Announces he will present at the Cases”Continuing Legal Education Seminar, “Discovery and Evidence in Oklahoma Family Law

I’m looking forward to presenting at National Business Institute’s upcoming course, “Discovery and Evidence in Oklahoma Family Law Cases” on Wednesday, September 20, 2023. Register today at https://www.nbi-sems.com/ProductDetails/96968ER!

Use Promo Code FSPN50A at checkout to get $50 off! Hope to see you there!

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NOT SURE WHETHER TO DIVORCE — IS LEGAL SEPARATION THE ANSWER?

Oklahoma law makes provisions for married couples who wish to no longer live together but have reasons to wish not to dissolve their marriage.  These reasons could include religious concerns or the ability to remain covered by insurance that is only available to a spouse of an employee.  Yet, while they desire not to dissolve the marital bonds, they feel the need for court orders to ensure their financial support, the care and support of minor children, and the right of visitation or access to minor children for a non-custodial parent.

Another reason to choose legal separation over divorce there is no minimum residency requirement for legal separation.  As will be discussed below, for a divorce one of the parties must have been a resident in Oklahoma for six months for the Court to acquire subject matter jurisdiction.  The requirement cannot be waived.  On the other hand, there is no residency requirement for an action for separate maintenance or legal separation.  There isn’t even a minimum residency requirement to establish venue.  A separate maintenance action may be filed in any county where either party is a resident.  43 Okla. Stat. tit. 43, §103(A)(2).  If a person desiring to file for divorce has not lived here six months, and assuming Oklahoma could obtain personal jurisdiction over the other party (and UCCJEA jurisdiction when applicable), they could file an action for separate maintenance to get into place temporary orders establishing the right to use and possession of property, support obligations, and custody and visitation rights.  When the party has lived here long enough to confer subject matter jurisdiction, the Petition could be amended to one for divorce.

The process and procedure for a legal separation, is identical to the process and procedure for a divorce, as described below.  At the end there will be a Decree of Separate maintenance instead of a Decree of Dissolution of Marriage.  When a case is filed initially as one for legal separation, it may be possible to amend the Petition at a later date to request a dissolution of marriage instead.  As will all amendments to a Petition after the other side has answered, the court must approve the amendment to the Petition.  This will definitely lead to some amount of additional expense for the Motion to Amend and the Amended Petition.  The amount of extra cost may depend on whether there is opposition to the amendment.  To avoid this additional expense, the case can be filed as one for dissolution of marriage with a request for entry of a temporary order.  While we normally think of a Temporary Order as governing the rights and obligations of the parties during the pendency of the divorce action, the Temporary Order could also serve as a Temporary Legal Separation Order.  In this context the parties will separate while working on saving their marriage or making the decision to permanently end it.  If the reconciliation works, the case is simply dismissed.  If reconciliation does not occur, no amendment to any pleadings will be required.

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Divorce Process in Tulsa Oklahoma Part II

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

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Divorce Process in Tulsa Oklahoma Part I

THE DIVORCE PROCESS IN TULSA COUNTY OKLAHOMA – PART I

THE AUTOMATIC TEMPORARY INJUNCTION

INITIAL DISCOVERY

PARENTING PLAN CONFERENCE

As a divorce lawyer in Tulsa, Oklahoma, I usually explain the divorce process in the Tulsa District Court and what to expect in my first meeting with new clients.  I would like to share with you some of that information.  The process will be different depending on whether minor children are involved.   When there are no children, some of the steps can be omitted.

The Automatic Temporary Injunction (ATI)

The first thing to know is that the very act  of filing a petition for divorce activates an automatic temporary injunction in every divorce case.  This automatic injunction prohibits certain conduct.  It goes into effect against the party filing, immediately upon filing the case.  It goes into effect upon the other party immediately upon that party being served (or signing a waiver of service).  The types of conduct that are prohibited are:

  1. Molesting or disturbing the peace of the other party or the child(ren) of the marriage.
  2. Disrupting or withdrawing any child(ren) of this marriage from an educational facility, program, or day-care where the child(ren) historically have been enrolled.
  3. Hiding or secreting any child(ren) of this marriage from the other party.
  4. Removing any child(ren) of this marriage beyond the jurisdiction of the State of Oklahoma, acting directly or in concert with others, except for vacations of two (2) weeks or less duration, without the prior written consent of the other party, which shall not be unreasonably withheld.
  5. Selling, mortgaging, encumbering, transferring, loaning, giving away,  concealing or in any way disposing of, without the written consent of the other party or an order of the Court, any marital property, except:

(A)  in the usual course of operating a business;

(B)  for the purpose of retaining an attorney for the case; or

(C)  for the necessities of life.

Each party shall notify the other party of any proposed other expenditures, and shall account to the court for all such expenditures made after this injunction went into effect.

  1. Intentionally or knowingly damaging or destroying the tangible property of the parties, or either of them, including, but not limited to, any document that represents or embodies anything of value.
  2. Making a withdrawal for any purpose from any retirement, profit-sharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account.
  3. Withdrawing or borrowing in any manner all or any part of the cash surrender value of life insurance policies on either party or their child(ren).
  4. Changing or in any manner altering the beneficiary designation on any life insurance policies of either party or any of their children.
  5. Canceling, altering, or in any manner affecting any casualty, automobile, homeowners=, or health insurance policies insuring the parties’ property or persons.
  6. Opening or diverting mail addressed to the other party.
  7. Signing or endorsing the other party’s name on any negotiable instrument, check, or draft, such as tax refunds, insurance payments, and dividends, or attempting to negotiate any negotiable instruments payable to either party without the personal signature of the other party.

In addition to prohibiting the above actions, the Automatic Temporary Injunction requires certain affirmative actions such as maintaining n force all presently existing health, property, vehicle, homeowners’, life and other insurance and exchanging certain financial information.

Initial Discovery – Exchange of Information

One hears the word “discovery” in connection with litigation.  This simply refers to the process by which each side acquires the information they need to effectively evaluate settlement offers or to present their case for trial, whether it is physically obtaining documents to be offered as evidence or learning what the other side’s evidence will be.  We will discuss Discovery more in Part II

As mentioned above, the ATI requires the exchange of certain information.  Before the Legislature added this requirement to the ATI, Tulsa County already had its own local rule on this subject.   There is some overlap and some differences in the two rules.  Both are in effect and apply to all new divorce cases in Tulsa County.

The ATI requires the exchange within 30 days of service of the Summons.  The documents to be exchanged are:

(1) the federal and state income tax returns of each party for the past two (2) years and for any business entity in which either party has an interest, including all supporting documentation for the tax returns, such as W-2 forms, 1099 forms, K-1 forms, Schedule C and Schedule E.
(2) two (2) months of the most recent pay stubs from each employer for whom the party worked,
(3) statements for the past six (6) months for all bank accounts  in which either party or their children has a beneficial interest
(4) Health insurance coverage documentation for the benefit of either party or the minor
child or children of the parties.
(5) child care expense documentation.
(6) documentation regarding all debts in the name of either party individually or jointly, including the current balance due and payment terms.

  Tulsa County Local Rule DR-5 requires the exchange within 20 days of the service of the Summons but no later than 48 hours before a Temporary Order hearing.  The documents to be exchanged are:

a. a statement of the party’s gross monthly income supported by the preceding month’s payroll checks and check
stubs and evidence of all income received from all sources within ninety (90) days prior to the date of service.
b. complete tax returns for three (3) years prior to date of service.
c. an accurate and provable statement of monthly employment related child care expenses.
d. evidence of medical insurance coverage and premium cost.
e. an accurate and provable list of all marital debts, stating the purpose of the debt and the amount of monthly payments for all existing
debts and obligations.
f. an accurate and provable list of monthly living expenses.

The Parenting Plan Conference (PPC)

If there are minor children, the first court appearance will be scheduled at the time of filing the petition.  This first court date is called the Parenting Plan Conference.  Both parties must attend at the same time.  At the PPC the Judge, who is not the judge otherwise assigned to your case, will give a speech, or lecture, about how difficult divorce is on children.  The Judge will explain that the best thing for the children is for you to settle your divorce case without litigating all the way through trial.  The judge will explain that if the parties and lawyers can’t settle among themselves, they will be required to attend mediation to attempt to settle.  Mediation is a settlement conference conducted and facilitated by an independent third party called a mediator.  The mediator’s job is to help the parties find common ground to settle.  The mediator can’t decide anything.  The mediator can’t impose any binding outcome.  Everything said and done in mediation is privileged and can’t be offered into evidence in trial .  This is to encourage people to offer to make compromises that won’t be binding if the other side doesn’t also make satisfactory compromises.

After the judge finishes her speech, everyone at the PPC will watch a video of children of all ages, small children to adults, discussing the impact of their parents’ divorce on them.  After the video, you have an opportunity to sign up for the class you will have to take called “Helping Children Cope With Divorce.”  All parties with custody cases in Tulsa County must attend this class even if there is not actually a divorce involved, i.e. paternity.  This is about a 4 hour seminar on co-parenting with a parent that does not live in the same household.  The two parties do not need to attend the class at the same time together.

After signing up for Helping Children Cope with Divorce, the parties and their attorneys break out into groups and attempt to reach an agreement on the terms of a Temporary Order.  A Temporary Order governs the rights and responsibilities of the parties while the case is pending in the court.  There is a 90 day waiting period for divorcing parties with minor children.  In Tulsa County unless your case is uncontested it will take substantially longer than 90 days for your case to work through the process.  A Temporary Order then is necessary to address things like child custody, visitation and support during this time, as well as temporary use and possession of assets such as the marital residence, vehicles or a family business.

If an agreement is reached it will be written up on a form provided by the court.  If the Oklahoma Department of Human Services is providing welfare (TANF) or medicaid (Sooner Care) assistance, one of their attorneys will have to approve the agreement, otherwise, the judge will sign the agreement at the PPC and it will become an order of the court.  If no agreement is reached, the judge conducting the PPC will sign a referral form for the parties to take to their assigned judge to get a hearing date for a temporary order hearing with the assigned judge.  In any event, you will also enter a scheduling order as part of the PPC.  This order sets deadlines for other events to occur in the case, such as discovery and mediation.

See Part II (coming soon) for more explanation of the Divorce Process in Tulsa County, Oklahoma.

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Tedx Talk on Surviving Divorced

David A. Sbarra, Ph.D., is a clinical psychologist and Associate Professor of Psychology at the University of Arizona where he serves as Director of Clinical Training. Dr. Sbarra teaches advanced graduate courses in psychotherapy, he is the author of numerous research papers and book chapters concerning divorce, stress, coping, and both mental and physical health. In addition to his is work as a professor of psychology, Dr. Sbarra maintains a small clinical practice in Tucson. David’s TEDx talk describes his latest research on divorce and healing in the aftermath of marital separation. Nearly 50% of marriages end in divorce, and David’s research is illuminating new ways to promote recovery after this stressful life event. In the spirit of ideas worth spreading, TEDx is a program of local, self-organized events that bring people together to share a TED-like experience. At a TEDx event, TEDTalks video and live speakers combine to spark deep discussion and connection in a small group. These local, self-organized events are branded TEDx, where x = independently organized TED event. The TED Conference provides general guidance for the TEDx program, but individual TEDx events are self-organized.* (*Subject to certain rules and regulations)