Hosted By: Diana Shepherd, Editorial Director, Divorce Magazine
Guest Speaker: Moura Robertson, Family Lawyer
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Read the Transcript of this Podcast Below.
Diana: I’m Diana Shepherd, the Editorial Director of Divorce Magazine and Family Lawyer Magazine, and your host for today’s podcast. My guest is Tulsa, Oklahoma family lawyer Moura Robertson, and she’s here to talk about property division in Oklahoma – including how prenuptial agreements could affect property division during divorce. With over 25 years of successful negotiation, litigation, and trial experience, Moura is regarded as one of the top family law attorneys in Oklahoma. She exclusively practices family law – including divorce, property division, prenuptial agreements, support, and custody – and I’m very pleased to have her on this Divorce Magazine podcast today. Let’s get started.
Moura, what are the rules regarding property division during divorce in Oklahoma?
Moura Robertson: When people divorce in Oklahoma, the court is required to make an equitable division of their property and debt. In doing so, the court will set-aside any separate property either spouse might have and divide their marital property between them.
You mentioned “separate property” and “marital property”. Can you help our listeners understand the difference between marital property and separate property in Oklahoma?
“Separate property” is property owned by either spouse before the marriage, during the marriage by separate gift or inheritance, or after their separation. Typical examples of separate property are pre-marital contributions to a 401(k) account or money that was inherited during marriage and maintained separately from marital funds. Those separate funds are set aside from the marital balance sheet.
“Marital property”, on the other hand, is property acquired after marriage from funds earned during the marriage, regardless of who earned the money or whether title is held in one or both spouse’s names. This includes business interests. If the business was established during the marriage, or if the stock, house, car, boat, or other property was purchased during the marriage, then it is presumed to be marital property subject to division.
Okay. Now that we know what separate property and marital property are, can you tell us how the court will divide them in an Oklahoma divorce?
The court is required to divide the marital property (and marital debt) in a manner that is “fair and equitable”. In Oklahoma, an “equitable division” normally means an equal division; however, that is not always the case. There are situations where the court might determine that an equal division is not “fair and equitable”, such as when one spouse is found to have dissipated marital assets. For example, if one spouse has lost money on gambling or spent money on an extra-marital affair, the court will consider evidence of those amounts when deciding how to divide up the marital estate.
The court isn’t required to divide every asset either. It can divide assets in kind, for instance, by awarding one spouse the marital residence and the retirement account to the other spouse. The court can also award an asset like the family business to one spouse and order that spouse to pay money to the other for their equitable share. The court decides what is reasonable and has broad authority to determine what is fair and equitable under the circumstances of each particular case.
Let’s talk about premarital agreements, or “prenups.” If a couple has a prenup, how will it affect property division during divorce in Oklahoma?
What is commonly referred to as a premarital agreement or “prenup” is called an “antenuptial agreement” in Oklahoma. These agreements are designed to set the parties’ respective property rights in the event of divorce, and they can include provisions for payment of spousal support as well. Oklahoma law favors valid premarital agreements, and Oklahoma courts will generally enforce such agreements in the event of divorce. The keyword here is “valid”.
Moura, what should a couple do to ensure their prenup – or antenuptial agreement – is valid under Oklahoma law?
Antenuptial agreements are formal contracts, and therefore must meet the requirements of a valid contract under Oklahoma law. The statutes providing for antenuptial agreements in Oklahoma require that they be in writing, and both husband and wife must be capable of entering into the agreement: that is, they are both of legal age, of sound mind, and without any legal impediment.
Let’s look at the reverse: what would make a prenup invalid in Oklahoma?
Premarital agreements can be voided by the court for fraud or deceit – so if challenged on these grounds, the court will consider whether a full, fair, and frank financial disclosure has been made. For this reason, it is advisable to exchange financial statements prior to entering into the antenuptial agreement. A best practice is to have a recitation in the agreement to the effect that full financial disclosure has been made, and that each party to the agreement is satisfied with the information provided.
Antenuptial agreements may also be attacked on the grounds of coercion, so it’s advisable to negotiate and sign them well in advance of the marriage – ideally, even before setting a wedding date. Assuming these precautionary measures have been taken, and the agreement meets all the normal requirements of a contract, it will be enforceable in court.
What happens if the court finds the prenup invalid?
If the prenup is successfully attacked on the grounds of fraud, coercion, or otherwise and the court sets it aside as invalid, then the court will exercise its judicial authority and discretion to divide the marital estate equitably during divorce in Oklahoma.
Thank you, Moura – you have certainly provided our listeners with some food for thought when it comes to property division and prenuptial agreements during a divorce in Oklahoma.
My guest for this podcast has been Tulsa family lawyer Moura Robertson. Moura is a Fellow of the American Academy of Matrimonial Lawyers, which is the most prestigious organization for family lawyers in the nation. She’s a top 25 Women Lawyer in Oklahoma, an Oklahoma Super Lawyer, and she was honored as the 2020 Lawyer of the Year by Best Lawyers. To learn more about prenuptial agreements and property division during a divorce in Oklahoma, and how Moura Robertson can help with all your unique divorce-related issues, please visit her website at www.DSDA.com.