Oklahoma Legal Separation Step-by-Step Guide
What is Legal Separation in the State of Oklahoma
In an Oklahoma divorce complaint, you will have to allege grounds that have been accepted by the state. However, there are some people who would rather remain married but live separately from their spouse for an indefinite period. These people do not have sufficient grounds for a divorce, and it has become far more common for them to be permitted to only separate – legally – while remaining married. This is what Under Oklahoma Statutes Title 43 Chapter 1 Sec. 102 defines as legal separation.
Essentially, a legal separation is a court decision which provides for the division of property, custody of children, the granting of support or alimony and other relief and is similar in nature to a decree of divorce. However, even though the legal groundwork has been laid by the legal separation terms, the parties remain legally married. These agreements are usually made by compromise of the parties, but they can be imposed by the court if necessary. The Oklahoma legal separation process is basically the same as a divorce process and there are no formal grounds for a legal separation.
If one spouse wishes for a separation and the other does not, the family law courts are not going to impose a separation on a spouse if he or she does not desire it. There are no real requirements that a spouse must truly meet in order to have a legal separation in Oklahoma which is the opposite of the strict grounds for divorce required in the state. There are however some benefits to separation .
Divorce implies the end of a marriage – separation only means living apart and being unmarried for a temporary amount of time. Since it does mean different things, there are different benefits to each. The benefits to a legal separation are::
With a legal separation, you are still married, you still receive health insurance benefits through a former employer, retirement accounts are still intact, and you cannot be forced to divide or sell real estate.
After the separation, you can pay your bills independently from one another as you would if unmarried. And just like divorced couples which retain joint custody of their children, non-custodial parents can pay their own bills and continue as single or head of household citizens.
The freedom to make decisions independent of one another is one of the primary benefits of legal separation. You can basically do what you choose within limits as you would if divorced.
You are still married, separated, receiving health benefits, etc. The benefits you have can only be taken away if your spouse decides to let you no longer receive them. You cannot forcibly take away your former spouse’s health insurance benefits.
If you both agree to separate and have children involved in your lives, you can work together to determine child support, child access or custody arrangements, who is responsible for having to pay what, and more. If however your spouse does not agree to separate and you are unable to come to an agreement on the issues, it can be difficult to handle these issues.
Filing Residency Requirements
In order to file for legal separation in Oklahoma, one of the spouses involved must have been a resident of the state for at least six months prior to filing. In addition, the residence that is used for separation must be a home within Oklahoma as well. The residency requirement exists to protect the courts from being overwhelmed with cases that are not connected with the state. For this reason, the state also has residency requirements for filing for divorce. Note that there is no residency requirement for a legal separation if it is filed from another country.
Legal Separation Grounds
Oklahoma law recognizes the following grounds for legal separation:
Abandonment for one year;
Adultery;
Impotency;
Conviction of a felony;
Habitual drunkenness;
Cruel and inhuman treatment which endangers life;
Incompatibility of temperament;
Incompatibility of temperament (found in the federal law for military personnel);
Attempting to cause one’s spouse physical harm; and
The wife being pregnant by another without the husband’s consent.
Grounds for legal separation are the same as grounds for divorce in Oklahoma except for the ground named above, i.e., incompatibility of temperament.
Step-By-Step Guide to Filing
Step 1: Collect Necessary Documents
Before filing for legal separation, both spouses should collect all necessary documents like birth certificates, marriage certificates, real estate deeds, bank statements, tax records, and anything else that may be relevant to the divorce. Properly maintaining these documents improves the chances of getting a favorable outcome.
Step 2: File for Legal Separation
In Oklahoma, one spouse will be the Petitioner and they will petition the court to issue a separate divorce decree. The spouses must have been separated for at least 6 months from their date of filing but they should file for divorce before that year or divorce becomes very complicated.
The petition is filed with the local court in the district in which the separating couple resides and includes information about:
Both spouses have separate duties that must be fulfilled throughout the filing process. For instance, the filing spouse must serve copies of the petition and summons on the other spouse either via personal service or through certified mail.
While it is not always necessary, a court can often grant temporary orders if requested by the filing spouse. These orders establish specific parenting time, child support, and financial agreements while the legal separation process is underway.
After the separation is approved, the divorcing couple can essentially go through the same divorce process as any other couple. This includes information relating to custody, finances, the division of property, and any agreements made on these topics.
What to Expect and Legal Considerations
Legal Separation, though often misunderstood, is a legal status most similar to the legal marital status. Pursuant to the Oklahoma legal dictionary:
Legal Separation – A court decree permitting a husband and wife to live apart as though they were single, with both spouses retaining the same legal benefits and obligations of marriage.
Thus, you are still married, you cannot remarry, you cannot change your name, and you remain beneficiaries to any life insurance policies/retirement accounts the other may possess can all affect you once you are no longer living together.
The first concern for those coming to see me seeking to separate from their spouse is usually "How will this affect me for taxes, insurance, and my credit report?", which are all valid concerns.
So here is the beginning of the list related to those questions:
- Spousal Tax Filing – Neither you nor your spouse has any alternative but to still file a joint tax return as you have only been legally separated, not yet legally divorced. Any issues resulting from joint filing that would require litigation must go in the divorce petition.
- Health and Dental Insurance – You would still be able to be added to your spouse’s health and dental insurance until such time as you are able to file for a divorce, even if you have already filed for legal separation; you are still legally married.
- Life Insurance and Retirement Accounts – Similarly, as discussed above, since you are still legally married , you are still beneficiaries to any life insurance policies or retirement assets in your spouse’s name and he/she is still the beneficiary to any of the same in your name. Any issues regarding this must go through petition for divorce.
- Credit – You will need to make sure that your spouse keeps you listed as responsible for joint debt, be it mortgages or credit cards, as each debt in name of either party will be counted as such on both credit reports. If your spouse applies for new credit and neglects to list you on the application, this could negatively impact your credit score and cause you to be denied.
As the legal presumption in Oklahoma is that all property acquired during the marriage is marital property, any property acquired from the date of filing for legal separation will be considered separate and solely owned by the person whose name it is in – unless that property is derived from marital property. As an example, if you apply for a credit card and receive a reward point bonus that gives you an extra five thousand points, those points are separate property and you may keep them, as they are not derived from marital property. However, if you receive a cash reward on purchasing a new car, that would be considered income and would thus be subject to division in divorce.
These concerns all relate to the period prior to filing a petition for divorce; once a petition for modification of legal separation has been filed, there may be additional orders of the court related to taxes, retirement benefits, and all other issues related to the temporary separation set forth by the judge.
Getting a Family Law Attorney
When facing a legal separation, one of the most important steps you can take is to enlist the expertise of an experienced Oklahoma family law attorney. A skilled lawyer will not only help you understand the process, but also be your greatest ally in ensuring that the separation is handled fairly and according to the law.
A family law attorney will help ensure your assets are properly separated, child custody and support determinations are made with the best interest of the children in mind, and all legal documents are properly filed at the appropriate time during the separation process. A qualified attorney will also advise you about the potential impact of your legal separation on your taxes, health care coverage and pension benefits.
When choosing an attorney, it’s important to select one with which you feel the most comfortable. Interview several family law attorneys before you decide who to hire. Be straightforward when discussing your situation with the attorney or attorney’s staff. You should expect the same from your legal counsel regarding their background and experience. Do not be afraid to ask how long they have practiced law as well as their history of winning or losing cases.
Common Legal Separation Mistakes
As you navigate the legal separation process, be mindful of these common pitfalls:
Waiting until the last minute to seek legal separation.
When a couple is contemplating separation, one spouse may feel that he/she is ready but the other one is not. Even though it’s important to work on your marriage, if you are really in need of a formal legal separation, don’t put off taking this step until later. A legal separation agreement will at least give both of you some breathing room while you sort things out.
Needlessly blowing the budget on a fancy new place.
Many separated couples find that they need to start fresh, and so they rent a new apartment or home, buy a set of new furniture and decorate the new place to show their personalities. But if you are not certain whether this new place will become a permanent residence, it might be in your budget’s best interest to put off such a decision.
Not adequately including child support in the agreement.
When a couple separates, it’s important to hammer out an agreement on child support and visitation as far in advance as possible. You might envision being able to work through the details over time, but it often causes unnecessary hardship to the kids if the details are not resolved in a clear and transparent manner from the very beginning.
Post Separation Items to Think About
Once a legal separation is approved and granted by the judge, spouses should take great care to continue to conduct themselves in a manner that preserves their interests and protects their legal rights. In the short term, this will help spouses adjust to the circumstances of separate living, while in the long term it will allow for a more seamless transition if these couples eventually decide to divorce.
Adjusting to New Circumstances. As mentioned previously, secured debts like mortgages and car loans will typically stay in one spouse’s name and they can take full responsibility for them even if they no longer live under the same roof. However, all associated risks with those loans, including potential credit damage or seizure of assets, will apply equally to both spouses. In this way , separation is not necessarily the legally advantageous "clean break" that some couples may expect it to be. At the very least, affected spouses should remain on top of these additional financial risks.
Pursuing a Divorce. While legal separation allows previously married spouses to live apart under conditions that are legally equivalent to divorce, it does not mean that these couples are bound to stay separated indefinitely. If one or both spouses has figured out their post-marriage living arrangements and have concluded that they do not want to get back together, they have the option to go through the divorce process as soon as their circumstances allow. Divorce, of course, is not immediately available for those who have separated for legal purposes for at least six months.