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During the process of a divorce, property of the parties will be divided up by the court, generally based on the garage sale value of that property. The division of property in a divorce action can be of enormous complexity. The division of property depends on the unique set of facts in each marriage.
Assets and debts acquired during your marriage, which are called marital property, are divided equitably when you divorce. Each spouse is entitled to keep property that was owned by him or her prior to the marriage and any gifts or inheritances acquired during the marriage.
All marital property is divided between the spouses in a just and reasonable manner, regardless of any marital fault.
In Oklahoma, there is a presumption that property purchased during marriage is property acquired by the joint efforts of the husband and wife and therefore joint marital property. So, in a divorce action, if it is established that a particular item of property was obtained during the marital relationship it is presumed to be divisible joint property. The burden of proving that it is, in fact, separate property rests on the party making such claim. In order to distinguish separate from joint or marital property, courts will look at the source of the funds that were used to obtain the property rather than how the title of the property is held. In other words, it does not matter whose name is on the particular piece of property.
Oklahoma is characterized as an “equitable division” state with respect to property division in a divorce action. Contrary to popular myth, this does not necessarily mandate a fifty-fifty split of all marital property. The Oklahoma Supreme Court has held that property does not necessarily have to be equally divided to be an equitable division in a divorce. Need is not usually a factor in the division of property and neither is fault. The conduct of the parties is not relevant to the issue of property division.
It does not necessarily matter how horribly a spouse has acted during the marriage; he or she cannot be “penalized” with a smaller share of the marital estate. There are some exceptions, however, to these general principles that I can explain in more detail during an office consultation.
The court can also order alimony in lieu of property division which is a cash award to one party in lieu of possession of property. This is usually used when a piece of property is not divisible.
It is important to note that property division is generally NOT modifiable so it is vitally important to get the property division right in the original Decree.
Before you seek divorce help in Oklahoma from an experienced divorce attorney you should gather all the information you can about all your property, including when you purchased it, approximately how much it is worth, account numbers, and serial numbers. Bring this information with you when meet with your attorney for divorce advice.