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Final Family Law Outline - Harrington - Spring 2011 I. Marriage A. There is a constitutional right to marry.
1. Restrictions of this right are viewed under strict scrutiny
2. 3 parties to a marriage = 1 man + 1 woman + the state B. Oklahoma Marriage Statutes (Title 43)
1. SS1: Marriage a. A personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary, i. Marriage relation shall only be entered into, maintained or ended as provided by law.
2. Who May Marry (SS3) i. To marry, parties must be 18 (unless they get special permission if they are 16 or 17) and capable of contracting. ii. Parties must be opposite sexes
3. SS123: Remarriage and Cohabitation a. In Ok, can't remarry within 6 months of divorce (if you do = Bigamy) b. May remarry in a different state within 6 months (if that state allows it) c. In OK, can't cohabitate within 6 months of a divorce (if you do = adultery) d. If decree is appealed, one cannot marry or cohabitate until the expiration of 30 days from final appellate judgment.
4. A marriage where one of the parties has not been divorced for 6 months is grounds for annulment by either party (SS126) C. Three Types of Marriages
1. Valid Marriages a. Marriage that complies with statutory requirements b. Can only be dissolved through divorce
2. Void Marriages a. Treated as having never existed b. No formal action is needed to declare the marriage invalid c. Can be attacked by any interested third parties, d. Can be challenged at any time, even after death e. No temporary alimony f. Types of void marriages i. Incestuous marriages (and consanguinity)
* Ex: parent/child; stepparent/child; uncle/niece or aunt/nephew where blood related; (half) brother/(half) sister; cousin/cousin.
* First-cousins married in another state where it's legal is given FF&C. ii. Bigamous marriages iii. Same-sex marriage) in OK
3. Voidable Marriage a. Marriage exists until formally terminated (divorce or annulment) b. Can be attacked by either party or their guardians c. Temporary alimony is given d. Survives death (cannot be voided after death) e. Can be ratified by the parties' conduct after removal of the legal impediment
Final Family Law Outline - Harrington - Spring 2011 i. E.g. under age party becomes of age - the marriage is no longer voidable f. If not annulled in a timely manner, it becomes a valid marriage from its inception. g. Types of voidable marriages i. One of the parties is incompetent at the time of the marriage ii. One person does not meet age requirements iii. Marriage with fraud going to the essence of the marriage/duress/ coercion iv. Marriages within 6 months after divorce is finalized D. Same Sex Marriages a. Prohibited (no FF+C requirement due to DOMA) b. When is a marriage considered to be same-sex?
i. OK view - Consider the parties' gender at birth (chromosomes)
* OK view ii. Other view - Consider the parties' physical characteristics at the time of marriage E. Fraud and the Marriage Relationship
1. A marriage can be annulled when there is fraud going to the essence of the marriage. a. Fraud is so material that the deceived party likely would not have consented to the marriage had he known the truth b. May consist of an affirmative false representation or withholding of the truth
2. Examples of fraud that do go to the essence of the marriage a. Hiding STD b. Lying about desire to have kids c. Lying about the intent/ability to have sex d. Claim of existing pregnancy coupled with representation that spouse is the child's father e. Lying about religious beliefs f. Concealing a criminal background g. Concealing that marriage was for purpose of gaining citizenship h. Concealing drug addiction
3. Examples of fraud that do not go to the essence of marriage a. Misrepresentation of affection b. Concealing prior drug use c. Concealing prior marriage and divorce d. Lying about wealth e. Lying about age f. Lying about being pregnant F. Annulment v. Divorce
1. Reasons one prefers annulment a. Religious reasons b. To avoid support payments
2. Reasons one prefers a divorce a. Property and support rights II. Common Law Marriage A. Characteristics of CLM
1. Actual and mutual agreement between spouses to be husband and wife 2
Final Family Law Outline - Harrington - Spring 2011
4. 5. B. C. D. E.
Permanent relationship Exclusive relationship Cohabitation Parties hold themselves publicly to be married a. Children born of the relationship; filing joint tax returns; joint bank accounts is good evidence of common law marriage Party asserting common law marriage must prove it by clear and convincing evidence There is no magical length of time necessary to create a CLM
1. Look to the intent and behavior of the parties... not length of the relationship To terminate a CLM, parties must get a divorce. CLM can be created in OK, even if the parties are not residents or domiciliaries
1. OK holds that being in state for 5 weeks, 3 times/yr is enough contacts to recognize CLM
III. Marriage Presumptions A. Strong presumption to the validity of a ceremonial marriage
1. Rebuttable by clear evidence of existing CLM not terminated by divorce. B. Court presumes that prior marriages of either party to a ceremonial marriage have been terminated by either divorce or death. C. When a marriage is shown, either common law or ceremonial, the law presumes its validity in that the previously married party divorced the previous spouse D. In proving CLM, an inference, if not a presumption, of marriage arises from the cohabitation. IV. Rights/Duties Between Spouses, Parties and Children A. Oklahoma Statutes (Title 43)
1. H or W can enter contracts between themselves or separately with others (SS204)
2. H and W cannot alter legal relations with each other by contract (no divorce by contract) a. Except as to property b. They can agree in writing to immediate separation and can agree to provide for support of either of them and their children during separation (SS205)
3. Mutual consent of the parties is sufficient consideration for a SS205 agreement (SS206)
4. Husband abandoned by wife is not liable for her support until she offers to return unless: a. She is justified in abandoning him because of his misconduct b. Support is stipulated in the separation agreement (SS210) B. Oklahoma Statutes (Title 10)
1. Suit for abuse of parental authority may be brought by child, grandparent, relatives within the third degree, by DHS/welfare agents, or prior or current foster parent. a. If abuse established, child may be emancipated and parent's duty of support and education enforced (SS9)
2. If parent doesn't supply necessaries to his child, a 3rd person can supply them and recover the reasonable value from the parent (SS13) C. The "necessities" doctrine
1. Husband must provide "necessaries" for his wife under SS202 a. An item is a necessity if it relieves great distress or promotes comfort of the body or mind b. In determining if an item is necessary, the courts consider the husband's station in life.
Final Family Law Outline - Harrington - Spring 2011 c. If a 3rd party extends credit to fulfill necessities of wife when the husband doesn't, the 3rd party can recover the costs from the husband. V. Divorce A. Oklahoma Statutes (Title 43)
1. Grounds for divorce (SS101) a. Abandonment for 1 year b. Adultery c. Impotency d. Wife pregnant by another man's child at time of marriage e. Extreme Cruelty f. Fraudulent Contract g. Incompatibility i. Most common ground (no fault) h. Habitual Drunkenness i. Gross Neglect of Duty j. Current imprisonment for felony k. Insanity for over 5 years with a poor prognosis for recovery
2. Equally wrong parties (SS108) a. If parties are in equal wrong, divorce may be granted to both parties. b. Whether divorce is granted or not, for good cause the court may make order for custody, maintenance and education of the children and equitable division of property. B. Fault Divorce
1. Parties must admit proof to show that the ground for divorce was met
2. Reasons people choose fault divorce a. Vindictiveness b. Religious reasons c. An attempt to prejudice the court.
3. Court cannot take marital fault into account in setting alimony or dividing property a. Unless the party is dissipating assets in the adultery/fault (hotel expenses, etc.) C. Defenses to Fault Divorce
1. Condonation a. One spouse pardons the marital offense of the other on condition that the other won't repeat and maintains good conduct in the future. b. Implied Condonation: when the couple cohabitates or resumes sex after the condoning spouse learns of the offense. c. Condonation prevents the condoning spouse from seeking a divorce for the condoned offense, unless it there is a revival. i. Revival nullifies condonation. Occurs when forgiven spouse:
* Repeats the condoned offense OR
* Commits a different marital offense OR
2. Other Defenses to Fault divorce a. Recrimination - Both are guilty of misconduct b. Provocation - Ones' conduct promotes the other's offense 4
Final Family Law Outline - Harrington - Spring 2011 c. Connivance - one spouse acquiesces to the other's offense d. Collusion - Spouses agree to false evidence D. No fault divorce
1. Benefits of no-fault divorce a. Parties need not prove anything b. Cheaper/Preferred by the courts
2. Grounds for no fault divorce a. Incompatibility i. Incompatibility exists when there is a conflict of personalities that destroys the legitimate ends of matrimony and possibility of reconciliation
* May exist even though only one party believes that they are incompatible ii. If a party complains of incompatibility, court can actually deny the divorce
* Only done when there are jurisdictional problems or a pregnant spouse. b. Separate and Apart i. Two views on what constitutes separate and apart
* View 1: Parties live in separate dwellings and lead separate lives
* View 2: If parties manifest to the community that they live separate lives, even if they live together, they can be considered S+A ii. OK doesn't recognize "separate and apart" as a ground for divorce E. Separate maintenance action
1. Still married buy living separate and apart
2. Differences from divorce: a. Doesn't terminate marriage b. Can't get name change c. Permanent alimony not available
3. Court can determine custody, grant temporary alimony and order child support.
4. Always subject to modification a. Reasons for separate maintenance instead of divorce: i. Keep health benefits ii. Religious - can't divorce iii. Psychological, kid custody enforceable with order, etc
5. Relief provided by separate maintenance a. Same grounds as divorce b. Lesser jurisdiction requirements (just live where you file - even 1 day) c. Counter file by divorce later on F. Annulment
1. Relief available a. Declaring the marriage as having never existed b. May allow custody/visitation, child support/ medical care, property distribution, attorney fees. c. No permanent alimony G. A divorce granted in one forum cannot be collaterally attacked in another forum.
Final Family Law Outline - Harrington - Spring 2011
1. Divorces granted in one state must be given full faith and credit by the others. VI. Procedure for Divorce A. Oklahoma statutes (Title 43) a. SS107.1+ 107.3 i. In divorce with children, court waits at least 90 days from filing to make final order
* During the 90 day period, the court can order:
* Counseling for parties or children (where custody at issue)
* Mediation with regard to property or custody issues
* Guardian ad litem for children (where custody is contested)
* Appropriate orders made if it is found that one party made frivolous allogations of abuse against the other (attorneys fees by accusing party or contempt)
2. Temporary orders (SS110) a. Automatic temporary injunction (ATI) automatically in effect when filing for divorce: i. Intent is to maintain the status quo of the marriage and family
* Parties can't encumber, conceal, or sell marital property without consent of the other, unless:
* Done in the regular course of business, or
* for the purpose of hiring an attorney, or
* to pay for necessities
* Parties can't...
* Intentionally destroy or damage property
* Withdrawing value from retirement or insurance
* Change or cancel life, auto, or health insurance
* Opening or diverting the other party's mail,
* Sign the other party's name on a check, tax return, etc.
* Disturb the peace of the other party or children
* Take kids out of school or daycare
* Hide the kids from the other party
* Take kids out of state without other's consent (vacation OK for 2 weeks) ii. Parties can waive the ATI by a signed document iii. The ATI is in effect until
* Waived by the parties
* A party, no later than 3 days after the injunction notice has been served, objects to the order and requests a hearing iv. The other party must have notice of the ATI v. The ATI is dissolved upon final divorce or separation b. A temporary order (TO) can be requested by either party after divorce petition is filed. i. Provides for things not covered in the ATI, like:
* Providing child custody/support/visitation
* Regarding spousal maintenance
* Regarding payment of debt 6
Final Family Law Outline - Harrington - Spring 2011
c. d. e. f.
Regarding possession of property Regarding attorney fees
* A temporary order will not be issued until 5 days notice of hearing is given to the other party. Notice/service must be given of the temporary order TO/ATI can be vacated or modified if there is a change of circumstance. TO/ATI end when the final judgment is rendered or the action is dismissed. A temporary restraining order i. If the court finds that irreparable harm will result to the moving party or children if no order is issued. This can be issued ex parte without notice or opportunity to be heard by the other party.
* Irreparable harm exists when there is abuse or drug use in child's presence
* If this is granted, the other party has 10 days to refute the charge
1. In OK Venue is proper in only 2 counties a. Where you Defendant is a resident, OR b. Where the Plaintiff has resided for 30 days.
2. Inconvenient forum doesn't apply because there are only two possibilities. C. Relationship to probate proceedings
1. Family law judgments are effective when spoken by the trial court a. this may be before they are reduced to writing and filed with the court clerk
2. If a party dies pending an appeal from a divorce action, the parties are divorced. a. Unless one of the parties is appealing the granting of the divorce
3. If death occurs before the final judgment divorcing the parties, the survivor is married for purposes of getting the elective share D. Relationship to tort proceedings
1. A party to a marriage can sue the other party for torts committed during the marriage such as assault, battery or IIED after the marriage has ended a. Such claims do not have to be made during the divorce proceedings. They can be made in a separate trial where the party alleging the tort can have her claims heard by a jury. VII. Division of Property and Debts A. Oklahoma Statutes (Title 43)
1. The court will divide and distribute property equitably (SS108)
2. Property acquired during marriage is marital property (title is unimportant) divide equitably a. Property will be distributed in kind or by giving the property to one of the parties and giving the other party a sum of money to effect a fair division. b. Separate property should be identified in the divorce decree, and will not be calculated in the distribution. (SS121)
3. Willfully disobeying property division order can be enforced by contempt of court (SS111)
4. In any divorce decree providing for periodic alimony payments, the court shall state, the dollar amount designated as support and the dollar amount pertaining to a division of property. a. Court shall specify in the decree that property division payments continue until completed.
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