USA – OKLAHOMA Trends and Developments Contributed by: Aaron Bundy and Danya Bundy, Bundy Law
Appraisers and other experts are often neces - sary to distinguish between increases in value due to economic factors versus enhancements resulting from efforts of either spouse. If the owning (in) spouse is successful in defending an enhancement claim against their separate prop - erty, the inquiry does not necessarily end here. Seeking alimony from separate property The out spouse has yet another option to extract value from separate assets. When assessing spousal support (alimony) claims, state statutes permit the trial court to award financial support to one spouse from the other’s estate, regard - less of whether the separate property is marital, separate, liquid, illiquid, and income-generating or not. Appellate courts have confirmed that even separate, inherited property is subject to consideration for determining an alimony award. Even after losing claims of marital ownership and marital enhancement of separate property, the out spouse may still make a request for spousal support against that property based on a num - ber of factors, including the lifestyle they became accustomed to during the marriage. Non-marital assets that are untouched in property division may be severely diminished by a spousal sup - port judgment. The out spouse has multiple ways to wield their ignorance as a powerful force in the divorce litigation and discovery process. Even though the out spouse has the legal burden of proof for all the factors involved in in-marriage enhance - ment of separate property, by claiming little to no knowledge of financial activities, they can practi - cally shift the burden of proof to the in spouse to prove up the separate or marital character of every asset.
In cases of extreme financial disparity, the trial court has the power to award temporary attor - ney’s fees and suit money from one spouse to the other. Effectively, the in spouse may be required to finance most or all of the out spouse’s explo - ration of asset characteristics. Even when those efforts fail, alimony claims are fluid and fact- sensitive, giving the out spouse a fallback claim against the in spouse’s separate estate that may not be disposed of through summary judgment or other non-evidentiary procedures. Protecting separate interests The ideal method for preserving and protect - ing separate property is by way of an prenup - tial agreement. If no prenuptial agreement was executed prior to marriage, it is then too late, as Oklahoma does not recognise postnuptial agreements. With or without a premarital agree - ment, proper record-keeping and preservation are critical for tax and estate-planning purposes. When marriage is contemplated, even if there will be no prenuptial agreement, obtaining pro - fessional appraisals of all assets owned prior to the marriage can establish a baseline for future value determinations. High net worth individu - als should conduct regular financial reviews with their advisers to ensure their estate plan remains aligned with their goals and that assets are prop - erly titled and documented. High net worth individuals with separate estates must recognise that individual, in-house assess - ment and determination that their property is non-marital is only the very beginning of the analysis required for a divorce. Too often, the in spouse assumes that their separate property is unreachable and they do not perform proper due diligence before or during a divorce to adequate - ly defend their interests. While the in spouse sits idly by, the out spouse may expend enough time and energy to make a sufficient case for a
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