AbrahamsonLaw

Enzo RIP 9/1/2008 - 4/7/ 2024

I'm looking forward to presenting at National Business Institute’s upcoming course, “Oklahoma Rules of Evidence: A Practical Toolkit” on Wednesday, December 20, 2023. Register today at https://www.nbi-sems.com/ProductDetails/97446ER!

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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!

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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.

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 s*x 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 s*xual 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.

If you have you ever wondered what is a prenuptial agreement, and should I have one, you will want to read this:

PRENUPTIAL AGREEMENTS

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.

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).

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.

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 ex*****on 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.

I'm looking forward to presenting at National Business Institute’s upcoming course, “How to Lay a Foundation to Get Your Evidence Introduced in Oklahoma” on Thursday, July 21, 2022. Register today at https://www.nbi-sems.com/ProductDetails/92554ER!

Use Promo Code FSPN50 at checkout to get $50 off! Hope to see you there!

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