Division of Property
November 1, 2018
By Lori Lindsey
The division of property in a divorce is often one of the biggest sources of conflict and can cause a divorce to be dragged out for a very long time. This can happen even when one party wants out of a marriage so badly that they leave behind everything but a few personal possessions. Ultimately, the court makes the final determination on the division of marital assets. But each party proposes their own division of the property. Knowing a bit about Oklahoma’s laws on the division of property can help with the creation of a realistic proposal.
In Oklahoma, the standard for the division of assets is equitable, not equal. This means that the court decides what the fair division of assets should be. Parties do not necessarily walk away with everything split 50/50, especially if there are minor children involved.
In order to explain what all of this means, we need to define a couple of terms. Marital property—also called joint property—is the property acquired by the parties during the marriage by the work of both spouses.
Separate property, on the other hand, is property acquired by one of the spouses before marriage; property acquired as a gift during the marriage, or property acquired during the marriage as an inheritance.
Property can be any number of things, including land, money, stocks, or objects.
It is also important to note that the court makes the presumption that property and debt acquired during the marriage is marital property. A spouse can overcome this presumption by showing evidence that property is separate.
The court takes a few factors into consideration in determining what an equitable division is. The contribution of each spouse is an important factor. This means that the court looks at the salaries of each spouse. Also, the court considers the contributions of a homemaker as benefiting the marital estate, even though they do not earn a salary outside of the home. The economic needs of the spouses are not a factor. However, the court will look at the expenses of the custodial parent in the care for minor children. Economic fault, which includes wasting or hiding assets, is also considered by the court in determining equitability.
Marital misconduct is not considered in dividing the assets. This includes adultery or extreme cruelty.
Sometimes a court will award a greater share of the assets to one spouse and order that spouse to make a monetary payment to the other spouse in order to achieve equitable division. This is called alimony in lieu of property division.
There are certain instances where separate property winds up becoming marital property. This happens where the spouse owning the separate property acts in a way that indicates an intent to make the property marital. For instance, placing property in joint title, creating a joint bank account, or otherwise commingling separate assets with joint property, creates the presumption that the assets should be treated as marital. However, a spouse can overcome this presumption by presenting evidence to the contrary.
Things get even trickier when one (or both) of the spouses owns a business.
This is just a brief overview of some of the major points about the division of property in Oklahoma. There are a lot more technical issues involved and it is a good idea to consult an attorney if there is a lot of property involved. But hopefully there will be fewer surprises along the way.