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


What Will Your Divorce Ceremony or Ritual Look Like?

The legal process of divorce does nothing to heal the emotional pain caused by ending a marriage relationship. Filing final papers in court makes you legally single, but healing the damage to your psyche follows an unrelated timetable.  Divorce can be even more traumatic than the death of a loved one. Instead of a loss fixed in time, the end of a marriage can seem like a death of a thousand cuts.

Like a marriage ceremony brings two people together, a divorce ceremony or ritual places you and your spouse on separate paths and promotes emotional healing.  It can be a private ritual involving just yourself, your immediate family, or one or two close friends.  You can involve a larger group of people, and help them feel more comfortable about the breakup as well.  It can be as elaborate or as simple as you choose.  There is even a newly published book with suggested divorce rituals.  The important point is to give it meaning that promotes dignity, respect and healing.

Robert Fulghum, signing his book What On Earth...

Robert Fulghum (Photo credit: Wikipedia)

Author Robert Fulghum writes about ritual as follows: “Meaningful rituals have a lot to do with gaining that inner harmony and making letting go as much a part of life as holding on.  Rituals anchor us to a center while freeing us to move on and confront the everlasting unpredictability of life.  The paradox of ritual patterns and sacred habits is that they simultaneously serve as solid footing and springboard, providing a stable dynamic in our lives.”  From Beginning To End, the Rituals of Our Lives.  Random House, 1995 (p. 265).

A divorce ceremony or ritual serves an important dual purpose.  It helps you let go of the past – to place a period on a chapter of your life.  You are then free to spring into the next chapter of your life – minus the burdens you intentionally leave to the past.

Too much analysis of your divorce ceremony can lead to paralysis.  Give some thought to what works for you, but don’t be afraid to trust your instincts.  Your divorce ceremony can be as elaborate as a wedding reception (complete with divorce vows), or as simple as a meditation (or smashing something into small pieces).  You and your ex might plan something together.  Your circumstances might call for you to plan an event on your own.  Any ritual or ceremony that speaks to you will work, but it does require some action on your part.  The internet has resources to plan your divorce ritual or ceremony.  Do some research.  Talk to your counselor, your spiritual advisor, or a close friend. Don’t just read about it or think about it.  Plan it and do it.  You’ll be glad you did.

by David Tracy

Obamacare And Divorce – It’s Still Complicated

Senate Passes Insurance Industry Aid Bill

(Photo credit: Mike Licht, NotionsCapital.com)

The U S Supreme Court largely upheld the Patient Protection and Affordable Care Act of 2010 (ACA) last week.  The ACA provides more options in coming years for divorcing families who face health care choices.  However, many of the means to the end of making health care more  available and affordable remain to be set. The major goals of the ACA, and its promise for the divorced population, still hang in the balance.

Over the course of ten years, nearly half of the non-elderly population will go without health insurance for some time (U.S. Dept. of Treasury 2009).  Many of these people lose coverage due to a divorce. A lack of cost-effective alternatives often leads to gaps in health insurance.

The traditional method of continuing coverage for the last generation is COBRA (named for the Consolidated Omnibus Budget Reconciliation Act which created it).  COBRA allows someone no longer eligible for group coverage to continue on the policy as an individual for up to 36 months after a divorce.  The employer contributes nothing to the coverage cost, making it cost-prohibitive for many.

If COBRA coverage is not practical, one historically had to explore other alternatives.

  • Find a job with a group health benefit.
  • Buy coverage in the individual health insurance market.
  • Qualify for a public program such as Medicaid or the Children’s Health Insurance Program (SoonerCare in Oklahoma).
  • Go without insurance, cross your fingers and hope for good health.

Those with pre-existing conditions faced added challenges, as they are thrown into high-risk pools with high costs and coverage exclusions.   Many private insurers will decline coverage, make it unaffordable, or make it ineffective with exclusions.  This will change quite a bit under the ACA.

Some changes under the ACA are already in effect.

  • Health plans cannot drop your coverage when you develop an illness or medical condition.
  • You may cover your children on your group health policy up to age 26.
  • Your children will not be denied coverage based on a pre-existing condition.
  • Your plan cannot impose annual or lifetime dollar limits for essential health benefits.
  • The Oklahoma Temporary High Risk Pool provides a bridge program to temporarily cover people who cannot get coverage elsewhere due to pre-existing conditions.  You have to go uninsured for 6 months to qualify for temporary high-risk coverage.

Some changes easing the challenge of post-divorce insurance planning do not take effect until January of 2014.

  • If not covered by an employer plan, people must either get health insurance on their own, pay a penalty on their income tax, or qualify for an exemption.
  • States, or the federal government by default, will set up health insurance exchanges.  These exchanges will outline the competing health insurance plans available to you, and the premium for coverage.
  • The exchange will also offer calculators to figure cost-sharing reductions and premium tax credits available depending on your income and coverage.
  • The amount of the subsidy you’re eligible for will depend on your income. Those with incomes of up to 400 percent of the federal poverty level ($43,560 for an individual and $89,400 for a family of four in 2011, according to the Kaiser Family Foundation) are eligible for premium assistance credits.

The exchanges hold promise for an added cost-effective alternative for divorcing spouses and families.  the U. S. Secretary of Health and Human Services must develop rules for making premium tax credit eligibility determinations based on changes in circumstance, such as a divorce.  We should all stay alert to the when and how of the exchanges, and the premium subsidies.  They will become part of divorce planning very soon.

by David Tracy

Link to Text of the Affordable Care Act

How the Affordable Care Act Affects You, CBS News Money Watch, June 29, 2012

The Promise of the Affordable Care Act, the Practical Realities of Implementation: Maintaining Health Coverage During Life Transitions, O’Leary, Capell, Jacobs, and Lucia, Center for Labor Research and Education, University of California, Berkeley; Chief Justice Earl Warren Institute on Law and Social Policy, UC Berkeley School of Law (2011)

Health Reform Subsidy Calculator, Kaiser Family Foundation

Supreme Court Ruling Making Medicaid Expansion Optional Gives Fallin A Big Decision, Tulsa World, July 3, 2012

Dad Fails In Effort To Transfer Case, Remove Judge

What do you do if both parents have moved from the county where a divorce action is pending, and you don’t like the assigned judge?   You try to move the case to another court.  The father in Chacon v. Chacon did not succeed in an effort to move his case.

Both parents in Chacon were West Point graduates and veterans.  They had 2 children, and one more on the way, when the wife filed to dissolve the marriage in Creek County, Oklahoma, where they lived.  The parties entered an agreed temporary order giving wife custody of the children, and setting specified time for father to spend with the kids.  Three months later, husband filed a motion to modify the temporary order in Creek County.  Mother wanted to relocate to Pennsylvania to be close to her family, and return to school.  After a hearing, the trial judge allowed mother to relocate to Pennsylvania with the children.  The parents agreed to a modified parenting time schedule.

After mother and the kids moved to Pennsylvania, father moved in with his girlfriend in Pittsburg County.  Six months after the relocation order, father filed a motion to transfer venue, that is, move the case to Pittsburg County, as everyone had moved from Creek County.  Mother responded that father was forum shopping, and had waived any objection to venue by participating in the case to this point.  The trial court denied the motion without a hearing.

The matter went to trial in front of the original judge.  That judge entered final orders granting mother custody, ordering supervised visitation for the father, dividing marital property, and awarding wife support alimony.  In ordering supervised visits, the court cited father’s failure to follow court orders while the case was pending.  The Court found father’s conduct particularly unacceptable in light of “his West Point training to follow orders.”

Before a hearing on wife’s request for attorneys fees, father asked the trial judge to recuse, or step aside from the case.  The trial judge denied that request, and awarded wife a substantial attorneys fee award.  Father appealed.

The Oklahoma Court of Civil Appeals held the trial court properly denied the change of venue.  The opinion states that father waived any objection to venue by participating in the case, and asking for affirmative relief in Creek County.  The appellate court did lift the requirement for supervised visitation.  It affirmed the trial court in all other respects, and granted wife’s request for appeal-related attorney fees and costs.

Judges have a lot of discretion to decide cases before them.  This father felt the trial judge was prejudiced against him.  A series of adverse rulings does not by itself provide grounds to change judges, or to remove a judge from your case.  However a judge feels toward you, and however you feel toward the judge, it is never a good idea to fail or refuse to follow the judge’s orders.

by David Tracy

Automatic Document Exchange Now Required In New Oklahoma Divorce Cases

Oklahoma law now requires an automatic document exchange between parties to a divorce case.  When a respondent is served with a summons, or when the respondent files any response, a thirty-day countdown starts.  Within that time, unless otherwise agreed by the parties in writing, the petitioner and respondent must each deliver to the other the following documents:

(1) the federal and state income tax returns of each party for the past two years, and any nonpublic, limited partnership and privately held corporate returns for any entity in which either party has an interest, together with all supporting documentation for the tax returns.  If a return is not completed at the time of disclosure, the parties shall provide the documents necessary to prepare the tax return of the party.

(2) two months of the most recent pay stubs from each employer for whom the party worked,

(3) statements for the past six months for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the minor child or children of the parties,

(4) documentation regarding the cost and nature of available health insurance coverage for the benefit of either party or the minor child or children of the parties,

(5) documentation regarding the cost and nature of employment or educationally related child care expenses incurred for the benefit of the minor child or children of the parties, and

(6) documentation regarding all debts in the name of either party individually or jointly, showing the most recent balance due and payment terms.

If you do not have or cannot get any of these documents within a month, you must sign an affidavit stating the specific document which is not available, the reasons the document is not available, and what efforts you made made to obtain the document. As more information becomes available, there is a continuing duty to supplement the disclosures.

Your lawyer needs this information as well.  It is good to exchange it sooner rather than later.  There will likely be more documents needed, including deeds to real estate, car titles, retirement account and cash value life insurance information.  They are not, however, part of the automatic document exchange required by law.

Source:  43 O.S. §110.

No To Child Support Judgment in Small Claims Court

One man’s effort to give effect to his private child support arrangement fails for lack of jurisdiction in Oklahoma’s Small Claims Court.

The father in Parsons v. Klingamon had been ordered in District Court to pay $250.00 per month in child support to the mother.  The 1996 decree did not provide for health insurance as the child was Native American and had access to free medical care.  Father claims that in 2007 he and Mother agreed to a private arrangement for him to pay her $150.00 per month in child support.  Father would also buy health insurance for the child (Mom and Dad were both unhappy with tribal health care).

In 2009, Mother asked the Oklahoma Department of Human Services (DHS) to collect the unpaid portion of court-ordered child support.  Father objected to a DHS assignment of income, claiming he was current under the private agreement.  While a DHS administrative case was pending, Father filed a small claims case against Mother.  He sought $2,500.00 “for child support payments” he claimed had been wrongfully withheld from his pay for child support.

The small claims judge granted Father a judgment.  The trial court considered this to be a dispute between two parties to a third party beneficiary contract.  The court granted judgment on a theory that Mother was being unjustly enriched by the DHS withholding.

DHS entered the case and filed a motion to vacate, citing 3 legal grounds for their claim that the small claims court could not enter the judgment it did.  The trial court declined to vacate.  On appeal, the Oklahoma Court of Civil Appeals makes it clear that only the District Court, not the Small Claims Court, has jurisdiction over matters relating to child support.  Despite the efforts of the small claims judge to cast this case as a contract matter, it was a child support case.  The trial court had exceeded its jurisdiction.  Judgment reversed.

The appellate court noted Father still has recourse in administrative and district court.  The opinion did not pass on the merits of Father’s claims.