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.

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

A Note on Fatherhood – Are You On Your Child’s Birth Certificate?

A recent Centers For Disease Control & Prevention report documents the rising number of out-of-wedlock births.  From 2006-2010, 45% of women age 15-44 who had children were unmarried, either not living with, or living with but not married to the father.  The number of women living with but not married to the father of their first-born child tripled in the last 10 years.  One can rebut the presumption of paternity for men married to a child’s mother.  These facts complicate the process of listing fathers on birth certificates.

The Oklahoma Uniform Parentage Act lists the methods you can use to assure your listing as father of record on your child’s birth certificate.  Unless you qualify for listing as the child’s father under one of the definitions below, you are just an “alleged father.”  You or the mother may claim you are the father, but your parentage has not been determined.  Make sure you meet one of the following definitions, and that the paperwork is complete to include your name on your child’s birth certificate.

Presumed Father – A presumed father of a child is married to the child’s mother.  The child may also be born within 300 days after your marriage to the child’s mother ends.  You are also a presumed father if you declare as a matter of record the child as yours, and marry the mother after the child is born.  Even if you do not marry the mother, you are a presumed father if you live in the same household as the child, and hold the child out as your own for the first two (2) years of the child’s life.

Acknowledged Father – If the mother is willing to cooperate, you can send a completed Acknowledgment of Paternity form to the Oklahoma Department of Health Vital Records Service (VRS). After the VRS accepts the form, it will amend the birth certificate to list you as the father. You can get the form online here, from the VRS, your county health department, the Office of Child Support Services, or from any hospital with a maternity ward.

Adjudicated Father – If the mother does not wish to cooperate, you can file a Petition with the district court to determine parentage. If the mother admits your paternity or a DNA test determines paternity, you can get a court order declaring you the father. You can then use the court order to amend the birth certificate.

by David Tracy

Time to Check Your Will After Supreme Court Denies Survivor Benefit for Twins Conceived After Father’s Death

A U. S. Supreme Court decision this week serves as a wake-up call for careful drafting or amending of your Last Will and Testament.  It is also a call to action for state legislatures.  The Court denied a Florida mother survivor benefits for twins conceived by in-vitro fertilization (IVF) after her husband died.  The court held unanimously that Karen Capato could not collect survivor benefits for the twins from the Social Security Administration (SSA).  She had the twins 18 months after her husband died, using his frozen sperm.

SSA turned the application down because Capato’s twins, who were conceived posthumously, did not qualify to inherit from their late father under Florida law.  The court states that SSA properly looked to state law to determine the children’s eligibility for the federal entitlement.

The effect of this U. S. Supreme Court decision in Oklahoma is unclear.  There is no state statute or case law discussing the inheritance rights of children conceived by mothers using the frozen sperm of a deceased father.  According to this article from National Public Radio, thirteen states have laws that specifically allow posthumously conceived children to inherit in cases where there is no will. Four states, including Florida, specifically do not allow it.  In the rest of the country, as in Oklahoma, the law is unclear.

It is a growing phenomenon for persons with life-threatening illnesses or hazardous job duties (like soldiers headed into combat) to store sperm for later use.  If you have stored sperm, there is a lesson for you in this weeks’ Supreme Court case.  Please contact an attorney promptly to draft or amend your Last Will and Testament. You need to include a clause that children conceived by IVF after your death should (or should not) be treated as your other surviving children.

For those who don’t have a Last Will and Testament, this issue needs to be addressed by the Oklahoma Legislature.  I think children conceived through IVF, even after the father has passed away, should be treated the same as children born while both parents were alive.  Oklahoma lawmakers can, and should, make this happen.

Please share your thoughts on the case of Astrue v. Capato in the Comments section below.

by David Tracy

Dividing Stock Options In A Divorce – Part 1

An employee stock option gives an employee the right to buy a specified number of shares of stock in the employer-corporation at a specified price (strike price) at a specified future time.  The goal is to give the employee an incentive for the stock price to go up, making the stock option more valuable.  Companies generally grant stock options to reward years of service, or to induce an employee to remain with the company.  Options change in value with the stock price.  They are not generally assignable.  For all of these reasons, stock options are difficult to characterize, value and divide as spouses go their separate ways.

In this first of a two-part discussion of stock options, I explore the issue of characterization of stock options as marital or separate property.

Characterization – Marital property in Oklahoma is property acquired by the parties during marriage through joint industry.  Spouses contribute to joint industry in various ways, including maintaining the marital home, caring for children, sacrificing a career to further the career of a spouse, as well as earning income through employment.  Stock options granted during marriage are considered marital property in Oklahoma.  See Duty v. Duty.  Stock options granted after a decree of divorce are the separate property of the employee spouse in Oklahoma.  See Ettinger v. Ettinger.

It is possible that stock options granted during marriage are partly marital and partly separate property.  There are several relevant dates to consider in analyzing stock options.

  • Grant date – the date an employer awards a stock option to an employee
  • Vesting date – the date an employee can exercise a stock option
  • Expiration date – the date a vested stock option expires if not exercised by the employee

A divorce can occur at any point along this time line and affect the characterization of the stock option as partly marital and partly separate property.  Consider options granted during marriage, but which vest after joint industry ends. What if the options are granted before marriage and vest during marriage?

Stock options granted but not yet vested are contingent assets.  Their value will be realized in the future.  Taking a cue from how courts treat retirement accounts in divorce, these contingent assets are still considered marital property, even though they require continued employment, or expire on the occurrence or non-occurrence of some future event.

The reason a company grants a stock option can also affect its characterization in divorce.  One must always determine why a company grants a stock option.  Is it a reward for past service?  Is it an incentive to remain with the company?  Is it a bonus or a form of deferred compensation? Each case is fact specific.

Parties and courts must fashion a time rule in each case to equitably allocate the marital or separate property components of each stock option award.  The time rule is a ratio, or fraction,  based on the number of months between various dates such as the date of marriage, date of employment, date the option is granted, date joint industry terminates, vesting date, and exercise date.  It is interesting to note that in the Duty case, the Oklahoma Court of Civil Appeals affirmed an award to the wife of one-third of husband’s stock options.  Neither the trial court or appellate court explained how it arrived at the one-third figure, except to note that the husband had to continue to work after the marriage to make the options vest.

In part two of this topic, I will explore the valuation and division of stock options in an Oklahoma divorce.

by David Tracy