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What is Separate vs. Marital Property in Oklahoma?

By: Amber Godfrey

[08.27.2021]

There is a lot of debate in many divorces as to what is considered separate (i.e.not joint) property and marital (i.e., joint) property, the latter of which is subject to division by the Court. In such considerations, one must know if their state recognizes property as “community property” or “common law.”

Only nine states recognize community property laws; Oklahoma falls into the common law category. In the former, and outside of a few exceptions, all property acquired during the marriage is considered “marital” and divisible by a court. However, common law states recognize some manner of “separateness” in property acquired during marriage during certain circumstances.

For example, any property brought into the marriage (think: furniture, vehicles, homes, accounts, etc.) is considered the separate property of the spouse in original ownership. Additionally, anything gifted or inherited by a spouse remains that person’s separate property, even if the gift or inheritance was made during the marriage—aside from additional caveats listed below. (Because, of course, right??)                                       

Conversely, anything gifted to the couple together or purchased during a marriage—even if only one spouse purchases it—is considered joint/marital if using funds earned during marriage… regardless of who earned them. In other words, both parties do not have to have been employed during the marriage for this to be true. Speaking with a skilled Oklahoma divorce attorney can be beneficial in helping you understand.

Think back to dear ol’ Ward and June Cleaver. Ward went off to work every day, and June stayed home, darning his socks and dusting the shelves with that little doily half-apron. (What did that even protect anyhow??). Back then, if Ward acquired anything, it was “his,” because he earned the money himself and [likely] purchased it himself. Not so today. If both parties, or only one party, works, it makes no difference; all items acquired through funds earned during the marriage are considered marital.

Now, that being said, it is important to know how separate and joint property intersect. Separate property that is “transmutated”—turned into joint property—or commingled with joint property change their characterization into joint property; however, any portion that is not transmutated remains separate. For instance, if Susie inherits $50,000 from grandma, puts it into a separate account, then puts $30,000 of that inheritance into a joint account or toward a joint mortgage payment or pays off a jointly-titled vehicle (you get the idea), she just made a gift to her and her spouse of $30,000, but that remaining $20,000 maintains its separate status.

The converse is not true, though: one cannot take a joint asset and turn it into a separate asset simply by putting it into a separate account. Why? Because if you could, everyone would do it when “divorce planning.” It also wreaks of bad faith and underhandedness, which does not bode well in a court of equity, as all divorce courts are in Oklahoma.

It is worth noting that if any dispute arises as to whether something is deemed separate vs. marital property, it is the person claiming separate status who bears the burden of proving it. This may require a “tracing” of how the property came to be in existence, and if the person claiming separateness does not meet their burden, the Court may deem the property marital and divide it in a divorce proceeding.

Best advice? Maintain the separate status of your separate property unless you truly intend to make a gift that could be, arguably, divided one day. If you are unsure how to best protect your separate property (which may not be a protection from your spouse, but from your spouse’s family), please call WhitbeckBennett so we can help strategize and protect your assets.

To learn how our team can help you, contact WhitbeckBennett by calling 800-516-3964 or emailing clientservices@wblaws.com.

To learn more about divorce, visit our Divorce Law page.

Related: Divorce Law

Amber Godfrey

Amber Godfrey

Partner

Ms. Godfrey has been practicing law for 13 years. Prior to joining WhitbeckBennett, she founded her own private practice in 2016 in Oklahoma City. She focuses on family law, which includes divorce, child support, custody modifications, Guardian ad Litem, adoption, and guardianships, as well as estate law which includes estate planning, probate. To learn more about Amber Godfrey, click here.

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