USA – OKLAHOMA Law and Practice Contributed by: Danya Bundy, Aaron Bundy and Catherine Hensley, Bundy
1. Divorce 1.1 Grounds, Timeline, Service and Process Oklahoma is a divorce “fault” state. There are 12 stat ‑ utory grounds for divorce: • abandonment for one year; • adultery; • impotency; • when the wife at the time of her marriage was pregnant by another than her husband; • extreme cruelty; • fraudulent contract; • incompatibility; • habitual drunkenness; • gross neglect of duty; • imprisonment of the other party in a state or federal penal institution under sentence thereto for the commission of a felony at the time the petition is filed; • the procurement of a final divorce decree outside the State of Oklahoma by a husband or wife, which does not in the State of Oklahoma release the other party from the obligations of the marriage; • insanity for a period of five years – the insane per ‑ son having been: (a) an inmate of a state institution for the insane in the State of Oklahoma for such period; or (b) an inmate of a state institution for the insane in some other state for such period; or (c) an in-patient in a private sanitarium; and (d) affected with a type of insanity with a poor prognosis for recovery. The most common, least controversial ground for divorce is incompatibility. Incompatibility has been determined by Oklahoma’s appellate courts to be a “mutual” fault concept that describes the state of rela ‑ tions between both spouses. To obtain a divorce, a court proceeding must be com ‑ menced by petition, setting forth the statutory grounds and reason for the divorce. In cases where there are no minor children involved and there is a complete agreement memorialised in a divorce decree, there is no minimum separation period. The divorce may be granted promptly once the petition has been filed. In cases involving minor children, there is a waiting
period of 90 days. Courts have the power to waive the 90-day waiting period in special circumstances, but such a waiver is unusual. Divorce proceedings must be served in the same manner as other civil lawsuits. The divorce petition must be accompanied by a summons and a notice of the automatic temporary injunction and served upon the respondent by certified mail (with return receipt requested and delivery restricted to the addressee), by commercial courier, by a sheriff, or by personal ser ‑ vice using a licensed process server who serves the papers upon the respondent or a person residing with the respondent who is over 15 years old. Service may be made by publication if the petitioner first demon ‑ strates that, with due diligence, service could not be made by any other method. Service of process must be made within 180 days after the filing of the petition. Generally, each person must be at least 18 years old to marry. However, courts have the authority to permit minors to marry in certain circumstances, including in the event of pregnancy or with parental consent. Oklahoma recognises common law marriage, which – broadly defined – means that both parties are com ‑ petent to marry and agree to be married to one anoth ‑ er. There is no ceremonial or licence requirement for common law marriage. While common law marriage relies on the mutual intent of competent parties to be married, courts scrutinise objective factors such as cohabitation, joint financial acts, and holding them ‑ selves out to the public as spouses, to determine if that intent existed. The party asserting the existence of the marriage bears the heavy burden of proving these elements by clear and convincing evidence. Divorce is viewed as part of the authority of the state gov ‑ ernment and may be granted even when one spouse objects to a divorce on religious or moral grounds. The residency requirement for divorce also applies to actions for annulment. There is no residency require ‑ ment for legal separation. The law applicable to legal separation is the same as in divorce; however, unlike divorce, in an action for legal separation, the marriage is not dissolved. Likewise, in the case of an annulment where the court determines that the marriage was void, the court retains the authority to make an equita ‑ ble division of property jointly accumulated during the
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