A Primer on Common Law Marriage in Oklahoma

toothbrushesMost people hold a formal ceremony to establish their marriage. Married couples get a license and formally record their ceremonial marriage at the courthouse. Oklahoma is among a handful of states that still recognize non-ceremonial marriages, also called “common-law” marriages. These marriages are formed through the consent of the parties who enter into the marriage, but they do not meet all the state requirements, such as a license or ceremony.


Couples without the benefit of a ceremonial marriage often take their relationship for granted until one party passes away. The existence of a marriage will affect the inheritance rights of children from a previous marriage or relationship. It can also affect the distribution of death benefits.

Married partners have rights when dissolving a marriage that people who just live together do not enjoy. Dividing assets and liabilities, real and personal property, retirement accounts, and family support have well-defined structure in family law. People who just live together have to prove an ownership interest in property independent of any family relationship. They have no right to alimony in Oklahoma.


Anyone trying to prove a common-law marriage in Oklahoma must prove all the following facts:

  • An actual and mutual agreement between the spouses to be husband and wife (with legal capacity to enter the marriage contract);
  • A permanent relationship;
  • An exclusive relationship;
  • The parties to the marriage must hold themselves out publicly as husband and wife, and;

cohabitation as man and wife (There is actually a split of authority on this particular standard).

The person seeking to show a common-law marriage must prove these elements by clear and convincing evidence. If clear and convincing evidence is missing as to any part of the above-referenced test, the claim of a common-law marriage will fail.


Most evidence of a common-law marriage comes from your everyday existence. Examples include:

  • Sharing a residence
  • Using the same last name
  • Filing joint income tax returns
  • Joint financial accounts and credit cards
  • Taking title to property as husband and wife
  • Listing a spouse as beneficiary in your Last Will and Testament, on life insurance policies or retirement accounts
  • Medical or health insurance records listing a spouse
  • Third party evidence of introductions and comments to third parties about marital status
  • Personal correspondence or other writings, such as hotel receipts, showing marital status.

If you don’t have enough of this kind of evidence to prove a common-law marriage by clear and convincing evidence, your claim will fail.

by David A. Tracy

Oklahoma Judicial Appointment Process Threatened – Say No to SJR21

It’s silly season in the Oklahoma Legislature. One of the silliest ideas is to put politicians in charge of the commission that nominates Oklahoma judges. Lawmakers are threatening to abolish the commission and freeze judicial salaries if they don’t get their way. The legislature hopes you won’t notice what they are doing with Senate Joint Resolution 21 (SJR21) and House Joint Resolution 1096 (HJR1096). Please let them know you are paying attention.

The integrity of Oklahoma’s Judicial Nominating Commission (JNC) is at risk. The JNC has operated without incident for decades. Scandals rocked Oklahoma’s court system in the 1960’s. Judges took bribes in exchange for favorable rulings. Partisan elections politicized the judicial selection process. Judicial reforms of the 1960’s, including the JNC, insulated the court system from politics, and restored confidence in Oklahoma’s judiciary.


The JNC has 15 members. The governor appoints 6 non-attorneys to the JNC from different districts in the state. The Oklahoma Bar Association elects 6 attorneys from those districts. The Governor, Speaker of the House and Senate President each pick one at-large member of the JNC.  The current commission provides for geographic and political balance. When a judicial vacancy occurs, the JNC reviews applications and submits three nominees to the Governor. The Governor selects one nominee to serve as judge.


SJR21 eliminates attorney involvement in selecting the attorney members of the JNC. The House Speaker, Senate President and Governor would instead be in charge of appointing all 15 JNC members. SJR21 reinserts politics into the judicial selection process.

Oklahoma’s business community hopes to use its influence in the legislature to cause the selection of “pro-business” judges. But Oklahoma judges are not “anti-business.” The judicial branch is an independent, impartial, co-equal branch of state government. There is no valid reason to mess with the process of qualifying and selecting judges.

The legislature hopes to increase it’s power by influencing who gets appointed to district court and appellate judgeships in Oklahoma. The legislature already sets the court budget. They don’t need to hand-pick judges with the Chamber of Commerce whispering in their ear. SJR21 and HJR1096 will make it harder for qualified and impartial judges to take the bench and stay there.


To get their way, legislative leaders are threatening to abolish the JNC, and freeze judicial salaries. Putting the “nuclear option” on the table is supposed to make SJR21 look like a compromise. To show they are serious, house leaders introduced HJR1096, which abolishes a pay raise for state court judges, who have not had a raise in six years. The Board of Judicial Compensation, an independent committee created by the legislature to make judicial salary recommendations, proposed the pay hike.

Please let your local state senator and representative know that SJR21 and HJR1096 harm Oklahoma’s ability to provide fair and impartial courts for all Oklahomans. Here is a link to find your representatives in Oklahoma’s legislature.

by David A. Tracy

UPDATE APRIL 15, 2014:  You can now sign an online petition opposing SJR21.  Don’t feel obligated to donate to ipetitions when asked.  Just close the donation request page.  Here is the link to the petition.

Signing the petition is quick and easy, but does not substitute for direct contact with your state representative or senator.  Please do both.

Is your son or daughter throwing away their higher education?

Gary Direnfield offers some excellent counsel here. It is easier to give this advice than to follow it, but you and your adult child will benefit.

Gary Direnfeld

I commonly see parents of young adults in university/college where the student is throwing away their education, putting more time towards partying and recovery than studying and earning grades. Common to these situations are often backgrounds of privilege with the parents carrying the tab – both for the bar and the books. What’s a parent to do?

While the parents are focused on their son or daughter, I am focused on the parents. I find that in these situations, the parent has set a goal of happiness for their child. They want their child to be happy.

This is not an unreasonable goal, but unfortunately, the strategies aimed at achieving it are often misguided.

In an effort to facilitate their child’s happiness, these parents have been apt to pave the road ahead of each step the child takes throughout life; are too forgiving of transgressions without requiring accountability and restitution…

View original post 630 more words

Oklahoma Same-Sex Marriage Opinion Summarized

abomination   In a landmark ruling, a federal judge in Oklahoma strikes down the Oklahoma Constitution’s ban on same-sex marriage.  Judge Terence C. Kern found on Tuesday that denying same-sex couples the right to a marriage license to be an “arbitrary, irrational exclusion. . . from a governmental benefit” which denies them equal protection under the law.  The Tulsa County Court Clerk defended the constitutional ban on several grounds, but the court found no rational basis for any of the clerk’s claims.

In 2004, Oklahoma citizens voted in favor of an amendment to the Oklahoma Constitution banning same-sex marriage.  Article 2, Section 35 provides in part:

“A. Marriage in this state shall consist only of the union of one man and one woman.  Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The constitutional amendment passed by a three-to-one margin.

Plaintiffs Mary Bishop and Sharon Baldwin sought a marriage license from Tulsa County Court Clerk Sally Howe Smith. Smith refused them a marriage license based upon their status as a same-sex couple. Bishop and Baldwin  challenged Part A of Article 2, Section 35, of the Oklahoma Constitution as violating their equal protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.

The Court used a “rational basis” test for determining whether Bishop and Baldwin were denied equal protection under the law.  The Court noted that “classifications against homosexuals and/or classifications based on a person’s sexual orientation are not subject to any form of heightened review in the Tenth Circuit.”  The Court then analyzed the various bases suggested by defendant Smith for discrimination against same-sex couples, and found none of them rationally related to a legitimate government purpose.

Promoting Morality – Promoting or upholding morality was one justification offered by the state to the public before passage of the constitutional amendment. The law requires that state officials demonstrate goals other than promoting one view of morality to justify discrimination against certain citizens.  Citing several Supreme Court cases striking down laws criminalizing homosexual conduct or discriminating against homosexuals, the Court noted, “moral disapproval, without any other asserted state interest, is not a “sufficient rationale . . . to justify a law that discriminates among groups of persons.” (Opinion, p. 55)

Encouraging responsible procreation and child-rearing – The Court accepted that Oklahoma has a legitimate interest in promoting procreation within marriage, to reduce out-of-wedlock births and the resulting economic burden on the state.  The state failed to show that discriminating against same-sex couples somehow furthers that goal.  Just because discrimination is historical does not make it constitutional when challenged at a given moment.  The court found no rational basis for discriminating against same-sex couples when opposite sex couples who cannot or choose not to have children can marry, stating,

marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.”  (Opinion, p. 58)

Same-sex couples are being subjected to a ‘naturally procreative’ requirement to which no other Oklahoma citizens are subjected, including the infertile, the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and this well exceeds it.”  (Opinion, p. 61)

Steering naturally procreative relationships into stable unions – Defendant Smith argued that opposite-sex, married biological parents are the “ideal” environment for child-rearing, and the state has a legitimate state interest in promoting the ideal environment. Without challenging the state’s premise, the Court determined that denying same-sex couples the benefit of marriage does nothing to promote that interest.  Opposite-sex couples who procreate and stay married can still have unstable, high-conflict, violent family relationships.  The Court found no evidence that denying same-sex couples the right to marry will help keep opposite-sex marriages intact and healthy, noting that “excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country.” (Opinion, p. 63)

Negative impact on marriage – Defendant Smith argued the State has an interest in avoiding redefinition of marriage that would necessarily change the institution and could have serious unintended consequences.  The Court dismissed this argument as “impermissibly tied” to the moral disapproval of same-sex couples as a class.

With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived ‘threat’ they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships. . . ‘Preserving the traditional institution of marriage,’ which is the gist of Smith’s final asserted justification, ‘is just a kinder way of describing the State’s moral disapproval of same-sex couples.’” (Opinion, p. 65)

Judge Kern concluded that Oklahoma’s ban on same-sex marriage violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.  He noted the clear “rhetorical shift” taking place at the federal level.

Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently.” (Opinion, p. 66)

Rather than buck the shift, Judge Kern followed it.

Noting the U. S. Supreme Court stay of a similar decision out of Utah, the Court stayed the effect of its Order pending review by the 10th Circuit Court of Appeals.  There will be no rush to the courthouse for same-sex marriage licenses in Oklahoma as occurred in Utah.

You will find a link to the opinion here.  Please share your thoughts on this case, and its relation to other same-sex marriage cases, in the comments section below.

by David A. Tracy

Divorce Arbitration in Oklahoma

Arbitration is not often used as a tool to resolve domestic cases in Oklahoma.  It is useful, though, when applied to the right case.  Consider the following advantages and disadvantages of matrimonial arbitration.


Privacy – Arbitration usually takes place in a private office.  No one is present unless all parties agree.  Parties keep control over what makes the public record.  In contrast, Courtrooms are very public places to disclose the private facts that make up most family law cases.

Speedy and efficient resolution of your case – In litigation, the court sets the schedule for what happens when.  An arbitrator will have fewer scheduling conflicts.  You will not be on a docket with several other cases.  Expert witnesses also appreciate not having to sit at the courthouse waiting to be called.  The arbitration can even be brought to them!

A cost-effective process – Arbitration should cost less than litigation in court.  Court rules are cumbersome because they are designed to fit all needs in all cases.  Arbitration can streamline the process.  Examples include stipulations, relaxed rules of evidence and procedure, use of reports or affidavits instead of live testimony and careful use (or non-use) of court reporters.  The cost of an arbitrator should be more-than-covered through reduced litigation costs.

Specialized knowledge – Sometimes a couple will have thorny issues on the characterization, valuation, or distribution of property.  Specialized knowledge of family issues, such as business or personal finance, or family systems, can be useful in deciding family law cases.  Rather than taking an assigned judge who may or may not have such specialized knowledge, the parties can contract to give someone with such knowledge decision-making authority.


Custody concerns – there is no case-law in Oklahoma as to whether a mediator can make a binding ruling on a child custody matter.  Cases and court rules in other states are not consistent.  While custody matters may be subject to judicial review and approval, the parties can present their custody case to an arbitrator.  A good record in arbitration has a better chance of passing judicial review as being in the best interests of minor children.

Due process and fraud concerns – When considering the rules for arbitration, one must consider the level of trust between the parties to make full disclosure of relevant facts.  Lack of trust between the parties may require use of full disclosure affidavits, or keeping in effect the Oklahoma Discovery Code, which can be enforced in arbitration.

Arbitration has long been used in labor law and securities law.  It’s application to divorce cases is due.  Oklahoma has adopted the Revised Uniform Arbitration Act.  The American Academy of Matrimonial Lawyers has adopted a Model Family Law Arbitration Act and Rules.  A carefully drafted Agreement to Arbitrate, and choice of the right arbitrator, can lead to a private, timely, cost-effective and thorough resolution to your family law problems

by David A. Tracy

Forced Resignation Serves as Basis For Child Support And Alimony Reduction

Resignation Letter

(Photo credit: Graham Ballantyne)

When the boss says “resign or I’ll fire you,” and you resign, is that a good faith reduction in income?  Can you use your change in income to reduce your child support and alimony?  A recent Supreme Court of Oklahoma opinion orders such a modification.

The parents in Garcia v. Garcia divorced in 2008.  The decree ordered father to pay child support to mother, and to pay support alimony to the ex-wife for 6 years.  At the time of the divorce, father was a school principal.

Father moved to reduce his child support and alimony obligations after he lost his job.  The father testified his superintendent told him to resign or be fired.  Figuring it would be easier to find another job in education if he quit rather than being fired, father chose to quit.  His resignation letter did not say he was resigning under threat of being fired.  Since leaving his job, father testified he’d made 53 job applications and sent 35 resumes, resulting in one interview.

Father asked the court to base his modified support obligations on earnings at minimum wage.  Mother argued that father either resigned his job voluntarily or committed acts that led to his dismissal.  Since father caused the actions that changed his circumstances, he should not be relieved of his support obligations.   The trial court and the Oklahoma Court of Civil Appeals agreed with mother. Both courts reasoned that Father’s job loss was due to his own misconduct, therefore his resignation was voluntarily self-induced. The lower courts relied on earlier case-law holding that voluntary underemployment or unemployment does not justify a reduction in support.

The Supreme Court of Oklahoma tweaked the test a bit after reviewing cases from Oklahoma and other states. Rather than voluntary or involuntary reduction, the test now is whether, based on all the circumstances, a reduction in income is done in bad faith to avoid a support obligation.  “A court must look to the particular circumstances involved and it is critical to determine whether the reduction in income was in good faith or bad faith.” In the Garcia case, the court ultimately determined that father’s decision to resign and not face termination was coerced, and was not done in bad faith to avoid his support obligations.

By David Tracy


Settlement Agreement Prevents Child Support Modification Effort

The Supreme Court of Oklahoma gives effect to a settlement agreement between divorced parents requiring both parents to agree in writing to any child support modification.

The parents in Scungio v. Scungio divorced in 2009.  The couple adopted 3 children during their marriage.  Two of the children had special needs.  In a settlement agreement incorporated into a decree dissolving the marriage, the parents agreed as follows:

  • Two of the children will likely remain disabled into adulthood, and the parents will remain responsible for them
  • Mother will be sole custodian of the minor children
  • Father will pay directly to mother a percentage of his salary that exceeds the child support guidelines, and will continue to do so until the children become self-supporting, regardless of age, or go to college and turn 22
  • The agreement cannot be modified except in writing signed by both parties (“no modification”)
  • The agreement will be construed under the laws of the State of Oklahoma (“governing law”)

After the trial court granted the divorce from the bench, but before the written decree was filed, the Oklahoma Department of Human Services (DHS) entered the case.  DHS was providing services to the children, and was a necessary party for “child support, medical support, and any debt due the State of Oklahoma.”  DHS, who was not a party to the settlement agreement, filed a motion to modify (“reduce”) child support in administrative court.

Mother moved to dismiss DHS’s motion.  She argued the “no modification” provision of the Settlement Agreement required the parents to agree in writing to modify child support.  Father, seizing an opportunity provided by DHS, argued that the “no modification” provision of the Agreement directly conflicts with the “governing law” provision.  This created an ambiguity, according to father.  As a result, the Agreement cannot serve as a clear waiver of the application of statutes allowing or child support modification.

The administrative law judge kicked the case to district court.  The trial court denied mother’s motion to dismiss, and held that the parties’ agreement did not waive application of the statute allowing for  modification of child support. Mother appealed.

The Supreme Court of Oklahoma reversed the trial court, saying the parents “clearly demonstrated their intent that there be no modification of child support without their mutual assent.”  The DHS motion must be dismissed.  The trial court must still decide the amount Father is behind in his child support payments and set a payment schedule for arrears.

The court also decided an important procedural issue in this case.  District courts and DHS administrative courts have concurrent jurisdiction over child support matters.  As a result, it is not necessary for a moving party to file a new motion to modify child support once a case is transferred from administrative court to district court.
by David Tracy