Oklahoma

Part of Real World Divorce: web edition | Kindle edition

Laura McConnell-Corbyn answered our questions about Oklahoma law and customs. Practicing since 1987, this "Super Lawyer" currently represents a roughly 70/30 mixture of male and female clients. Why the disparity? "I primarily represent the higher income party." McConnell-Corbyn goes to trial in roughly 20 percent of her cases, which means about six times per year. See http://www.hartzoglaw.com for a detailed biography, including a substantial number of appeals court cases decided based on McConnell-Corbyn's arguments.

McConnell-Corbyn reports that there is rough gender parity in terms of who starts a divorce lawsuit (the "petitioner" in Oklahoma, corresponding to the "plaintiff" in other jurisdictions; the "defendant" becomes a "respondent"). This makes Oklahoma an outlier compared to most U.S. states, where female plaintiffs predominate. The research of Brinig and Allen would lead one to expect, therefore, that it will be difficult for a woman in Oklahoma to get primary custody and/or a profitable stream of child support.

A divorce lawsuit in Oklahoma takes 12-18 months to get to trial. There is a temporary order hearing at which a party might get the house, a parenting time plan, and a stream of cash flow. No witnesses testify or are cross-examined at these hearings, 5-15 of which might be dispensed with in one morning. McConnell-Corbyn explains, "These are primary by 'proffer' where attorneys argue. The parties are there and sworn and are required to correct any misstatements that an attorney might make." Is it easy to get the other parent kicked out of the house? "The court will almost always award the house to one party at a temporary hearing," says McConnell-Corbyn, even without any allegation of domestic violence or a threat of violence. There seems to be less value in pursuing the domestic violence track in Oklahoma compared to other states. "When there is a divorce pending, a case from our victim protective order docket will go to the divorce judge," says McConnell-Corbyn. "There is not a lot of benefit from making abuse allegations due to our no-fault system. Sometimes they're made for emotional reasons because someone wants to feel like a victim."

McConnell-Corbyn says that it is easy for consumers to calculate child support at the guidelines level using materials published by the Oklahoma Department of Human Services (DHS). However, these guidelines apply only up to an income of $15,000 per month ($180,000 per year), at which point the child support is $1,372 per month ($16,464 per year) for a single child. "The statute says that for high income payors it is supposed to set it at the maximum amount provided by guidelines plus such additional amount as might be determined by facts and circumstances," says McConnell-Corbyn. "The case law says that over $15,000 per month gross income, it is based on the actual needs of the children. That's what everybody fights about."  It is possible to get the kinds of $100,000 per year awards that are typical in Massachusetts or California? "One case cites the three-pony rule," responded McConnell-Corbyn, referring to the "no child needs more than three ponies" standard. "It would be hard to get anywhere near that in Oklahoma. The largest real-world result that she had seen was Barry Sanders, a football player with at least $6 million per year in income, paying something in the neighborhood of $10,000 per month.

What if an Oklahoma court had dealt with the facts of Kosow v. Shuman, a case described in the Massachusetts chapter. The Massachusetts court gave the plaintiff $94,000 per year in child support (plus housing, health insurance, nanny, and $50,000 per year in alimony) to take care of a 4-year-old girl part-time. McConnell-Corbyn predicted that, in an Oklahoma court, "If he is paying all of the direct expenses she might get $2,000 per month based on his $816,000 per year in income. He won't be ordered to pay for any nannies."

Whatever a court orders for basic child support under the guidelines can be supplemented with the costs of day care, health insurance, and unreimbursed medical expenses. Child support can be collected to the age of 18 or up to the age of 20 if a child regularly and continuously attends high school. Oklahoma courts will not order a parent to pay for college costs.

The security of a stream of cash flow that accompanies a parenting time arrangement depends on the kind of custody that was awarded. If a parent wins sole custody, the parenting time schedule can be modified only if the non-custodial parent can show a "substantial, material change of circumstances adversely affecting the child." If the parents have joint custody, a parent requesting a change in custody need show only that it is in the "best interest" of the child. The child's preferences will be considered to some extent by a court starting at age 12.

Although Oklahoma is not part of the Uniform Premarital Agreement Act, McConnell-Corbyn says that "Case law from early on favors prenuptial agreements. Parties can do whatever they want to with the exception of limiting child support or making a decision about custody in advance." Parties could certainly elect to keep separate property separate, waive alimony, and have each side pay his or her attorney’s fees. McConnell-Corbyn cautions, however, that a litigant could argue that the case was really about custody and child support and that therefore attorney’s fees should be awarded from the higher income or wealthier parent. She added that Oklahoma does not recognize post-nuptial agreements.

State background

The average hourly wage in Oklahoma is $18.83 per hour. A person who goes to college at the University of Oklahoma will spend approximately $67,692 over four years to earn a bachelor's degree. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full-time is $30,000 per year ($23,577 after taxes). The corresponding man earns $40,000 per year ($30,787 after taxes). Oklahoma collects 8.6 percent of residents' income in order to fund state and local government compared to the national average rate of 9.9 percent (source: Tax Foundation). Oklahoma taxes individual income at rates up to 5 percent, unlike neighboring Texas, which has no income tax.

The average annual cost of child care is $7,228 for an infant, $5,397 for a four-year-old, and $4,496 for a school-age child. Thus the total cost of child care from age 0 through 12 is $40,209 in commercial settings or $36,207 in a family care setting.

The male college graduate will have an after-tax spending power of $363,326 after 14 years of working (14 years of income minus taxes and the cost of college). Considering the USDA-estimated cost of a child, he would be financially better off collecting child support than working when that support is $2432 per month or more. This is above the $1,372 per month number ($16,464 per year) at the top of the Oklahoma child support guidelines, corresponding to suing a person with a $180,000 per year gross income.

The female college graduate will have an after-tax spending power of $262,386 over the same time period. She would be better off collecting child support when it exceeds $1,965 per month, an over-the-top-of-the-guidelines amount that would require judicial discretion to obtain in Oklahoma.

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

"I had this case," says McConnell-Corbyn. "Although they had a much longer marriage. Dad was engaged in hobbies that took him away from the child quite a bit. The daughter was in school at the time of the divorce. It was resolved by trial with the mother being awarded sole custody. She could make all of the decisions. The parenting time was 60/40 in the mother's favor due to the fact that the father would have to go to work." The child support calculator shows that, with the mother's income set to the maximum and the father's income set at $0 or imputed to $36,000 per year, neither party would pay child support to the other in a 60/40 split because the higher-income mother has the child more than 205 overnights. However, McConnell-Corbyn says that the court ordered the mother to pay "some child support."

What's McConnell-Corbyn's prediction regarding our hypothetical scenario? "It would be a 50/50  time-sharing schedule." What about the fact that the child is so young? "That's very discretionary," responded McConnell-Corbyn. "Some judges think it is best to have a baby with a primary caregiver most of the time and set up visitation that is frequent but seldom overnights. Perhaps every Tuesday and Thursday after work until 8 pm. But here you have a child who has been with a nanny so it might be every other day or two days with one parent and two days with the other." How about "decision making" or what other states would call "legal custody"? "The statute does not favor shared or sole custody," said McConnell-Corbyn. "The main factor is whether or not these people are able to make decisions together. A parenting coordinator may be used."

Given that the father's photography business is not profitable, what number would be plugged into the child support calculator? "The judge would ask what is he reasonably capable of earning?" said McConnell-Corbyn. "They will look at what successful photographers in this area make. They might also look at what else he is capable of doing via the testimony of occupational experts." If we plug $36,000 per year into the calculator for the photographer and the $180,000 per year maximum for the surgeon, a 50/50 time share results in her paying him $683 per month. If she could obtain 206 nights per year instead of 183, however, her child support obligation would fall to $0. Thus the mother could effectively earn, after taxes, $356 per night for those additional overnights of child care. An alternative way of looking at it is that, assuming the judge does not go above the guidelines despite her higher-than-guidelines income, she will save $139,332 over 17 years if she can obtain more than 205 nights of physical custody.

McConnell-Corbyn gave us a rare believable answer regarding the likely cost of full-blown litigation. Her fee is $350 per hour and she estimated that each side could spend $250,000 to $300,000 in a lawsuit where property division, alimony, custody, and child support are at issue. Given that the photographer has no income, can he get the court to order the plaintiff to pay his fees? "Everyone is assumed to pay his or her fees," says McConnell-Corbyn. "The court has jurisdiction to shift fees from one party to the other if one party has substantially greater assets or earning capability than the other. Also if a party's assets are not liquid or one party's conduct has increased the costs of the litigation. But I tell clients that they shouldn't go into it expecting the other side to pay." What should this low-income photographer do then, as a practical matter? "He will have to decide how many things he needs to fight about."

What kind of alimony and property division can the photographer hope for? "It is very unusual to get any support alimony unless he has a need that is 'rationally connected to the marriage'," says McConnell-Corbyn. "That's difficult to show in a short-term marriage because you haven't been out of the workforce for very long. Having a baby and staying home for 1-2 years doesn't justify it."

What if she has pre-marital assets that floated up and down? "Appreciation in her separate property would be marital property if she made an effort to increase its value. A passive stock portfolio wouldn't quality," said McConnell-Corbyn, "but her medical practice would." If she has a lot of different assets and simple volatility made some go up and some down can he cherry-pick just the appreciated assets? "I haven't seen it. Judges generally take a global view."

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

Will the presence of conflict kill the possibility of shared parenting or 50/50 parenting time as in some other states? "No," says McConnell-Corbyn. "The court could order joint custody with all disputes to be determined by a parenting coordinator. The court is supposed to make a determination that joint decision-making is feasible. If judge is convinced that it is absolutely not possible for the parents to make decisions, he or she could award sole custody and equal parenting time." What about in this scenario? "The 14-year marriage implies that they can do it. To the extent that there is evidence of conflict the judge will say 'We're in the stress of the divorce'."

[Note that this perspective is consistent with what we were told by psychologists. Being sued or confronted with a lawsuit defense when none was expected tends to make people angrier than they ever were before or ever are going to be again. Thus it is a mistake to assume that whatever conflict one sees during divorce litigation is permanent except perhaps in those states where the perceived injustice of the outcome continues to stoke hatred.]

Consistent with what some other attorneys in states where 50/50 parenting time schedules are common, McConnell-Corbyn said that the company of the siblings would make it more likely that a week-on, week-off schedule could be awarded even with a child as young as three years old. But she also thought that a 5-5-2-2 schedule was possible. What's actually better? "Week-on, week-off is better if parents are fighting due to fewer exchanges," said McConnell-Corbyn. "Also, some children like week-on week-off better because they can settle in at each home."

Due to the equal incomes there would be no child support or alimony in this case.

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

Could the stay-at-home parent argue that she wanted to preserve the "status quo" of being a stay-at-home parent with a sufficiently large stream of court-ordered cash? "Only with a special needs child would you see court trying to enable a parent to stay home," said McConnell-Corbyn. "Otherwise it is 'let's move on with our lives'. He could get 50/50 time sharing if not immediately then reasonably soon. If these people don't hate each other generally joint custody will work."

What if the doctor needs to scale back his practice a little in order to take care of the children 50 percent of the time? Some states would force him either to keep working at least as many hours as during the marriage or to pay child support and alimony as though he were doing so. "The court wouldn't let him quit his job but would let him go down from $275,000 per year to $225,000," responded McConnell-Corbyn. "The court might allow him to do that during the temporary order period. He might find that it doesn't work and give up on his 50/50 parenting time goal. But often it works out beautifully and the previously stay-at-home parent gets over her anxiety that 'Dad can't do it.'"

Child support at the top of the chart is $23,532 per year for two children but it falls to $17,700 with a 50/50 time share. McConnell-Corbyn predicts child support could be anywhere between $1500-3500/month in this two-child scenario, i.e., up to $42,000 per year: "It depends on the judge and the lifestyle they've had." Does that mean that the mother could benefit from pre-lawsuit planning by indulging in a luxurious lifestyle for the family? "That can work," says McConnell-Corbyn, "especially if you do it for two or three years. Just one year looks pretty suspicious."

How about alimony to supplement the child support? "She needs an opportunity to get a job. It will take her some time with a bachelor's that she has never used," said McConnell-Corbyn. "She will get support alimony perhaps for 5 years but it would decline over time." How much would the alimony be? "The amount of support alimony is based on (1) her need, and (2) his ability to pay. It would be affected by the mortgage, student loan debt, etc." Does Oklahoma have a formula of ⅓ to ½ of the difference in income? "She could not get half of his income."

Will there be an unequal property division? Does the mother have a superior right to obtain the house? "I don't often see a court tell a stay-at-home mom she needs to move immediately," said McConnell-Corbyn. "And one does not see the children being moved from the house right away." Ultimately, however, it will be close to a 50/50 split of the assets. "The statute says 'fair and reasonable'," notes McConnell-Corbyn. "I have seen 53/47 or 55/45 affirmed on appeal."

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

How will this baby's life unfold with the two parents? "I expect court will do a transition to gradually increase the time with dad," says McConnell-Corbyn. "He won't get 50/50 time right away with baby that young with these facts. But she will have to go to work and ultimately if he demonstrates his commitment to being an active parent then I would hope over time he would work up to 2-3 days/week schedule. Dad could work up to 50/50 time if he does everything he is supposed to do." How long would that take? "He would be at 50/50 by the time the child is 3 or 4 years old," responded McConnell-Corbyn.

Due to the short marriage she won't get alimony. McConnell-Corbyn predicts child support for this above-guidelines scenario would be between $1,500 and $2,500 per month depending on the judge. The father's higher income means that he would essentially pay all of the child's actual expenses as well.

Can she get a share of the $2 million? "Not if it hasn't been commingled and any appreciation was market-driven," said McConnell-Corbyn. "Though the income from the assets would be considered when calculating child support." What if the money is invested such that it doesn't produce current income. Would a judge be willing to impute income to the $2 million? "Probably not."

From 2012 to 2014 the issue of appreciation on premarital assets was considered by the Oklahoma courts. Sue Ann Hamm sued her husband, the self-made oil tycoon Harold Hamm, in 2012, primarily to obtain a share of his oil company, founded more than 20 years prior to their 1988 marriage. This is a case where inflation generated much of the gain in the nominal value of the defendant's assets. Oil was about $12 per barrel in 1988; at the time of the trial it was about $90 per barrel. The petitioner argued that much of the increase in the respondent's assets were due to his skill and effort, made possible because she supported him as a non-working spouse. The judge's decision, after a nine-week trial, to order the respondent to pay the petitioner $1 billion, was based on the judge's findings that the respondent was involved as a "micromanager" in the business. The opinion does not look at what other oil companies did over the same time period, e.g., Exxon shares went from $5 in 1988 to roughly $100 by the August 2014 trial. Thus the analysis was not "Did the respondent's efforts result in a higher rate of return than a passive investment?" but rather, essentially, "Did the assets go up in value, not adjusting for inflation, while the respondent was actively involved in making decisions." Thus Oklahomans make much more money from divorce lawsuits during asset and market booms than at other times, assuming that the people being sued are not simply buy-and-hold investors.

[An interesting angle to the Sue Ann Hamm case is the care with which money is handled by America’s family courts compared with what happens to children. Attorneys nationwide told us that custody cases are effectively decided in motion hearings as short as 10 minutes (see above for McConnell-Corbyn's explanation of the temporary order hearing process). Assuming that the nine-week trial in the Hamm case was 30 hours per week on the record, as much time was devoted to figuring out exactly how rich these two rich people should be as would be devoted to the custody decisions for about 2,000 children (1,620 motion hearings; assuming that just over one child's access to parents is decided per hearing).]

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

Child support and parenting time will be decided in the same way as the married cases above. "We have the most litigation if she waits until the child is 16 years old," says McConnell-Corbyn, in answer to the question as to whether there is any statute of limitations. "Dad never had an opportunity to have a relationship with the child, but he still might have to pay child support retroactively to the date of birth as well as medical expenses." How about legal fees? "Not necessarily."

McConnell-Corbyn says that the mother can go to the Department of Human Services and the state agency will do all of the work for her, including paternity testing and the initiation of a child support lawsuit. "She can get all of the forms online," notes McConnell-Corbyn. "However, my experience is that our DHS child support enforcement attorneys are incredibly overworked. It is better to get a private lawyer to determine the child support amount than have DHS to enforce it."

What if the woman marries a wealthy or high-income partner? "In theory the new spouse is not required to pay to support a child that is not his," said McConnell-Corbyn. "But it is possible that an above-guidelines award might be reviewed if all housing and utility expenses are being met by the new spouse. Generally it is difficult to decrease child support unless the income of the payor has decreased and one can show that the recipient has a lower need."

Removal/Relocation

What does it look like when a parent wants to move to another state? "Our relocation statute requires that if a parent wants to relocate more than 75 miles from the current location of child he or she must give notice and the other parent has 30 days to object," said McConnell-Corbyn. "If there has been joint custody it will have the effect of terminating joint custody and the relocation case turns into a pure custody trial. If the parties are in a sole custody situation there is a protocol of proofs. First the burden is on the moving person to show that the reason to move is legitimate and good faith. Then the burden shifts to the other parent to show that the move is not in the best interests of the child." What are the practical chances of obtaining permission to move with a child? "If she has sole custody and a good faith reason, chances of success are better than 80 percent," responded McConnell-Corbyn, "but she would have to come up with a plan where the father would have meaningful time with the child. Not just Christmas." Is it tougher with joint custody? "With joint custody, she loses the presumption favoring the move."

Quirks

As in other states, Oklahoma provides cash incentives to have children with multiple co-parents. At the $180,000 per year income level, a person with three children and no income suing a common co-parent collects $497,880 over an 18-year period. If those children are from three different co-parents, on the other hand, $824,256 can be collected.

As in other states, multiple children from the same child support defendant have different cash values depending on when the corresponding lawsuits are filed and child support orders obtained. The first person to sue a parent earning $180,000 per year can collect $1,372 per month. That sum is then deducted from the $15,000 monthly income and the second child support order will be a maximum of $1316 per month. The third child support action results in an award of $1,263 per month. Thus the first child support lawsuit is worth $23,544 more than the third.

Unlike many other states, Oklahoma does not give child support plaintiffs complete priority over children whose parents have not sued a defendant. For example, if a married parent earning $180,000 per year has three children at home already, a child support plaintiff of a fourth (extramarital) child can obtain only $1,302 per month in child support rather than the $1,372 that would otherwise be obtainable. This is done by subtracting $1,729 from the parent's gross income as an "amount for qualified in-home children." Curiously, the in-home children of a marriage are assigned a much smaller cash entitlement than the children of a one-night encounter. Each of the three in-home children has a cash value of $576 pre-tax whereas the extramarital child has a cash value of $1,302 per month after taxes. If we assume a 40 percent tax rate, that's a difference of $206,582 over 18 years.

Changes on the horizon

McConnell-Corbyn notes that some legislators have been working to eliminate no-fault divorce, a change that she opposes: "There is a misapprehension that by making these laws so Draconian we will discourage divorce." Note that our interview in Mississippi confirms McConnell-Corbyn's perspective. The lack of no-fault divorce there imposes a substantial burden on lower-income people and results in an absurd number of divorces on the grounds of "habitual cruel and inhuman treatment".

Based on her thirty years of experience, the main change in statutes that McConnell-Corbyn would like to see is "a presumption in favor of joint custody and equal time. To obtain sole custody or unequal parenting you'd need to prove that it is directly contrary to the interests of the children." Aside from the benefits to children cited by shared parenting researchers, why would this be an improvement? "It would take a lot of litigation out of the divorce process and it would be fairer to working parents. A parent who has had the breadwinning role by agreement of parties should not lose the opportunity to have equal involvement with the child for the rest of the child's life."

Summary

For Oklahomans, short-term marriage or getting custody of an out-of-wedlock child is not a viable economic alternative to college and work.

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