WHAT IS DIVORCE?
Divorce is the termination of the legal relationship of marriage.
Divorce is a one of only two means by which the marriage relationship is legally terminated.
Death is the only other means of termination.
Once a marriage has been legally consumated and entered into the marriage relationship continues until terminated by judicial decree in a Divorce Action, or death of one of the parties.
Although a marriage relationship may in some instances be entered into without ceremony, as a Common Law Marriage, there is no such thing as a Common Law Divorce.
See – Common Law Marriage.
Parties to a marriage may not just agree not to be married any longer, nor just walk away from each other.
Until the marriage relationship has been legally terminated the parties continue to have legal obligations to the other – and each of the parties continues to have an interest in the property of the other.
The continuing obligations of one to the other – and interest of one of the parties in the property of the other may be determined by the law of the state where either of the parties reside.
The interest in the property of the other continues even after death, and the amount of interest is determined by the laws of the state where one of the parties resides at the time of death.
See – FAQ – Probate.
Once parties to a marriage determine that the marriage relationship has or should be ended then Divorce is absolutely necessary to terminate the relationship.
WHAT IS THE DIFFERENCE BETWEEN DIVORCE AND ANNULMENT?
Divorce is the judicial termination of an existing marriage relationship.
Annulment is a judicial determination that although a marraige relationship was attempted that no relationship existed.
In an annulment the relationship is declared null and void.
Grounds for annulment may vary from state to state, but generally grounds for annulment are based upon one of the parties not being legally competent to enter into the marriage. i.e., underage, already married to someone else, under court order not to marry, mental incompetency.
Fraud by one of the parties, and even impotency, may be grounds for an annulment.
Pregnancy of the wife prior to the marriage, if hidden from husband may be grounds.
Generally the fact the parties have only been married for one day or short period of time does not constitute grounds for annulment.
Once there has been a legal marriage between two parties legally compentent to marry, then the relationship must be terminated by Divorce, not annulment.
The procedure for Divorce and Annulment are generally similar.
WHAT HAPPENS IN A DIVORCE ACTION?
- First – the marriage relationship is terminated.
- Second – Property rights of the parties in the jointly acquired property are determined.
- Third – Debts of the parties are apportioned.
- Fourth – Care, custody and support of minor children is determined.
- Fifth – The continuing obligations of one party to the other may also be decided – i.e., alimony for support, insurance, retirement and pension benefits.
- In Oklahoma and in many states the wife may be restored to her former name in a Divorce Action.
Although the Divorce terminates the marriage relationship, it does not necessarily sever the legal ties between the parties!
So long as children remain minors the parties continue to have legal obligations to the other concerning support of the children and visitation rights.
Support and visitation orders in the divorce decree may be subject to court ordered change until the children reach the age prescribed in the statutes of the state where the courts have or obtain jurisciction.
So long as continuing obligatons such as alimony awarded in a Divorce Decree, the parties continue to have legal obligations which is some states including Oklahoma may be modified.
DO I NEED A LAWYER TO GET A DIVORCE?
In many states, including Oklahoma, you are not required to have a lawyer to represent you in any legal proceeding, including Divorce.
You may also change the transmission in you car – but you need to know what you are doing!
Caveat: – You should realize that many lawyers spend a great deal of their time in litigation correcting the mistakes created by persons who have chosen to do their own legal work without sound legal advice.
– DOCUMENTS FOR COURT FILING!
- Sometimes we are asked to just prepare pleadings for pro-se litigants. We do not recommend pro-se litigation, but will, on occasion prepare necessary pleadings, and try to give helpful advice with the preparation.
- See – Preparation of Documents & Pleadings
BEFORE ATTEMPTING YOUR OWN DIVORCE
You should realize that Divorce is an adversary proceeding just like any other lawsuit brought in any Court.
Each of the parties to the Divorce may have adverse or conflicting interests and each of the parties is usually best served by having legal counsel to advise him or her as to legal rights to which each may be entitled.
Once the Divorce is granted then neither of the parties to the Divorce Action will have further legal obligations to the other, except those that are specifically provided for in the final Decree of Divorce.
As to property division, once the Decree is entered then title to all of the property awarded in the Decree becomes the separate property of the party receiving it and the division of the property is final – subject only to the rights of the parties to appeal the decision upon the statutory grounds for vacating the Decree in the District Court or an Appeal to the Supreme Court of the State of Oklahoma.
Continuing rights and obligations of one party to the other may also be provided for in the Final Decree.
Among these are continuing alimonry for support and the rights to continued coverage on health and medical insurance where one of the parties has coverage by reason of employment, but the other does not have coverage.
Another continuing sort of benefit which would be provided for in a Divorce Decree would be the division of an interest in Retirement Benefits available to one of the parties by reason of employment by a Governmental entity or private company.
A Divorce Decree will also provide which party will be obligated to pay the outstanding indebtedness incurred during the marriage.
You need to know and realize that even though the Divorce Decree may order one of the parties to pay certain indebtedness that the creditor is not bound by the provisions of the Divorce Decree, but may pursue the collection of the debt against either party.
Once you file for Divorce you are subject to the same rules and procedures in the Court as the attorneys who practice in the Court.
We recommend that in every Divorce proceeding each of the parties contact an attorney concerning any legal rights they might have which is adverse or conflicts with the rights of the other party.