USA – OKLAHOMA Law and Practice Contributed by: Danya Bundy and Aaron Bundy, Bundy Law
mon law marriage. Divorce is viewed as part of the authority of the state government 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 res - idency requirement 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 equitable division of property jointly accumulated dur - ing the period of time that the parties lived as husband and wife, as well as to determine child custody matters. 1.2 Choice of Jurisdiction To commence a divorce or annulment proceed - ing in Oklahoma, at least one spouse must have been “an actual resident, in good faith, of the State of Oklahoma” for the six months immedi - ately preceding the filing of the petition. If nei - ther spouse meets this requirement, an Okla - homa court will not have jurisdiction to grant a divorce. In cases where there is a dispute about jurisdiction, the analysis becomes extremely fact-sensitive. Appellate law addressing the residency require - ment tends to use the terms “residence” and “domicile” interchangeably, even though the words may have legally significant, independent definitions for other purposes. By itself, nation - ality is not a factor for determining residency; however, in the event of a robust inquiry follow- ing a jurisdictional challenge, nationality could be relevant, depending on the circumstances.
Domicile has been described by an appellate court as “the inherent element upon which the jurisdiction must rest”. As the question of juris - diction is fundamental in every matter, jurisdic - tion may be challenged by either party or by the court. When a jurisdictional challenge is made while a divorce proceeding is pending in a for - eign jurisdiction, a stay of Oklahoma proceed - ings may be requested. When a stay has been requested, the court must consider: • whether there is an alternate forum (such as a court in a foreign jurisdiction) where the case may be tried; • whether the alternate forum provides an adequate remedy; • whether maintaining the case would cause a substantial injustice to the party requesting a stay; • whether the alternate forum can exercise jurisdiction over the parties; • whether the balance between the private interests of the parties and the public inter - ests of the State predominates in favour of the action being brought in the alternate forum; and • whether the stay would prevent unreasonable duplication or proliferation of litigation.
2. Financial Proceedings 2.1 Choice of Jurisdiction
Oklahoma case law says: “The question of juris - diction is primary and fundamental in every case and cannot be conferred by the consent of the parties, waived by the parties, or overlooked by the Court.” Domicile in the state where a divorce is sought is an inherent element in and prerequi - site for jurisdiction for divorce.
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