Divorce – Separation Agreements – Oklahoma

Note:  This summary is not intended to be an all inclusive discussion of the law of separation agreements in Oklahoma, but does include basic and other provisions.

General Summary: Separation and Property Agreements may be entered into before a divorce is filed to be effective

Statutes:

Oklahoma Statutes
Title 43. Marriage

Disposition of property – Restoration of Maiden Name – Alimony: When a divorce is granted, the wife shall be restored to her maiden or former name if she so desires. The court shall enter its decree confirming in each spouse the property owned by him or her before marriage and the undisposed-of property acquired after marriage by him or her in his or her own right. Either spouse may be allowed such alimony out of real and personal property of the other as the court shall think reasonable, having due regard to the value of such property at the time of the divorce. Alimony may be allowed from real or personal property, or both, or in the form of money judgment, payable either in gross or in installments, as the court may deem just and equitable. As to such property, whether real or personal, which has been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall, subject to a valid antenuptial contract in writing, make such division between the parties as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to be paid such sum as may be just and proper to effect a fair and just division thereof. The court may set apart a portion of the separate estate of a spouse to the other spouse for the support of the children of the marriage where custody resides with that spouse.  [Formerly § 12-1278.]  §43-121.

Alimony Payments – Termination – Payment pertaining to support and division of property – Cohabitation by former spouse:
A. In any divorce decree which provides for periodic alimony payments, the court shall plainly state, at the time of entering the original decree, the dollar amount of all or a portion of each payment which is designated as support and the dollar amount of all or a portion of the payment which is a payment pertaining to a division of property. The court shall specify in the decree that the payments pertaining to a division of property shall continue until completed. Payments pertaining to a division of property are irrevocable and not subject to subsequent modification by the court making the award. An order for the payment of money pursuant to a divorce decree, whether designated as support or designated as pertaining to a division of property shall not be a lien against the real property of the person ordered to make such payments unless the court order specifically provides for a lien on real property. An arrearage in payments of support reduced to a judgment may be a lien against the real property of the person ordered to make such payments.

B. The court shall also provide in the divorce decree that upon the death or remarriage of the recipient, the payments for support, if not already accrued, shall terminate. The court shall order the judgment for the payment of support to be terminated, and the lien released upon the presentation of proper proof of death of the recipient unless a proper claim is made for any amount of past-due support payments by an executor, administrator, or heir within ninety (90) days from the date of death of the recipient. Upon proper application the court shall order payment of support terminated and the lien discharged after remarriage of the recipient, unless the recipient can make a proper showing that some amount of support is still needed and that circumstances have not rendered payment of the same inequitable, provided the recipient commences an action for such determination, within ninety (90) days of the date of such remarriage.  [§ 12-1289. Renumbered]  §43-134.

Relations cannot be altered by contract – Separation agreements: A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property, and except that they may agree in writing to an immediate separation, and may make provision for the support of either of them and of their children during such separation.  § 43-205.

Case Law:

Parties in contemplation of a divorce are free to contract for disposition of their property and for alimony as support. Likewise, the trial court may at its discretion incorporate the agreement of the parties into the divorce decree. Miller v. Miller, Okla., 456 P.2d 113 (1969).

This Court has on more than one occasion said that a waiver occurs where there is a voluntary and intentional relinquishment of a known right. Archer v. Wedderien, Okla., 446 P.2d 43 (1968); Kirtley v. Kirtley, Okla., 301 P.2d 671 (1956). Furthermore, a right may be waived whether conferred by law or contract. Whitmire v. Zolbe, Okla., 403 P.2d 445 (1965). This Court has held that a statutory requirement imposed on the trial court as to the manner in which the property of the parties to a divorce will be divided may be waived. Mills v. Mills, Okla., 512 P.2d 143 (1973).

A husband and wife may, in contemplation of a divorce, enter into an agreement concerning the termination of alimony for support, and, if that agreement is subsequently incorporated into the divorce decree, they waive those rights granted them under 12 O.S. 1971 § 1289 [12-1289](b) (Renumbered as § 134[43-134] of Title 43), which are inconsistent with the terms of the decree.  Clifton v. Clifton, 1990 OK 88, 801 P.2d 693.

In the absence of fraud, a property settlement award, as opposed to an award for support alimony, cannot be modified in a post-decretal hearing.  Property division provisions stand inviolate by actions of the divorced parties unless they act to vacate, set aside, or modify the decree in a manner authorized by  statute.  Clifton v. Clifton, 1990 OK 88, 801 P.2d 693