Grounds for an Oklahoma Divorce

Oklahoma is not a "no-fault" divorce state in the sense that entitlement to divorce is the same as entitlement to become married in the first place. Under Oklahoma statutes, a person who asks for a divorce must prove his or her entitlement to that relief. Very often, the parties' stipulate that each should be divorced from the other on the ground of "incompatibility" because who's been good and/or who's been bad (if either) and who is awarded the divorce has no impact upon the standards used to resolve the other issues in the case, e.g., child issues (custody, visitation, support), separate property identification, marital estate equitable division, support alimony, attorney fees. This is not to say that evidence relating to "fault" might not be significant to some other issue, as is noted below. It is just that different "sets" of standards do not exist for resolving these other issues based upon who is awarded the divorce or whose fault may be determined to have caused the marriage to fail.

Having said divorce is not a matter of "right" in Oklahoma, this writer's experience is trial courts almost never deny a divorce. I said "almost never" because I am aware of one Oklahoma County trial judge's multipage decision in December 1998 which denied a divorce to either party on the basis that grounds were not proven. The trial lasted many days. Child custody, property division and support alimony issues were all in dispute; but, the fact that each party wanted to be divorced from the other was not. After the judge's decision denying the divorce, both parties' lawyers requested the judge to reconsider his decision, and he did, but only after further hearing, and the divorce was ultimately granted. Although such decisions are rare, they obviously can happen under Oklahoma law. As I said, in this sense, Oklahoma is not a "no-fault" divorce state.

   A Historical Perspective Of Oklahoma Divorce Law
   Grounds For An Oklahoma Divorce
   Significance of The Reasons For Divorce

  A HISTORICAL PERSPECTIVE OF OKLAHOMA DIVORCE LAW.  Divorce is a creation of the state and was unknown to the "common law" which this country received from England. Henry VIII didn't get "divorced", he got "annulled", so to speak. When he was living, marriage was wholly regulated by the Church and only that entity had the power to declare that a particular marriage was a "nullity"... that marriage never happened and was a nullity for one ecclesiastical reason or another. Then, much of the debate focused on the "Church"... who had annulment authority, the Pope or the Archbishop of Canterbury? In 1533, Henry got his first annulment from the Archbishop of Canterbury, the Pope having declined to grant the same. For a nice piece on Henry VIII's 6 wives, click here. If you think this is all ancient history, know then that divorce only became legal in Ireland in 1997!

Both before and after independence from England, various colonies embraced the idea that, in certain narrow circumstances, "divorce" might be allowable by the state. For example, see this interesting discussion of the History of Divorce in New York.  In the main, states adopted statutes which required a rather severe set of facts to exist before divorce could be granted, e.g., adultery, abandonment, extreme cruelty and the like.

In Oklahoma's earliest territorial days, it was not so. In 1890, the first Territorial Legislature's divorce adopted Nebraska's divorce statutes which, concerning divorce grounds, were remarkably oblique. In 1893, the Territorial Legislature adopted "new" divorce laws, this time copying from Kansas. Since then, the grounds for divorce haven't changed all that much, with one notable exception. At one time or another before Oklahoma's 1907 statehood, the required residency period varied from 90 days to one to two years. Oklahoma Territory became known in certain parts of the country as a "divorce mill". Some cities, like Guthrie (the territorial capitol), became known for its divorce trade, so to speak, and posters of "missing spouses" were not uncommonly posted in public places. For an interesting article on this period, see Professor Glenda Riley's article, "Divorce In Early Oklahoma Territory", in the Oklahoma Historical Society's Chronicles of Oklahoma, Vol. 67, No. 4, pp. 392-413 (Winter 1989-90). She notes that both Oklahoma and eastern newspapers railed at the ease of obtaining a divorce in Oklahoma. Her study concludes that the "divorce mill" reputation was probably unfounded and that obtaining divorce in was not particularly different or less difficult in Oklahoma Territory than in many other states.

The 1893 statutes identified the following grounds for divorce: 1) either party had a former spouse still living at the time of marriage (presumably, an undivorced former spouse), 2) abandonment for one year, 3) adultery, 4) impotency, 5) the wife was pregnant at the time of marriage by one other than her husband, 6) extreme cruelty, 7) fraudulent contract, 8) habitual drunkenness, 9) gross neglect of duty, and 10) conviction of a felony and imprisonment therefor after the marriage.

As would be supposed from this list of divorce grounds, divorce wouldn't necessarily be an easy thing to obtain. The state would not permit its residents to divorce unless someone was "bad", to use the term loosely. Correspondingly, earlier Oklahoma divorce statutes used different standards for divorce case issues (e.g., marital estate division, support alimony), depending on whether both parties were "bad" or only one was. "Who" was granted the divorce was significant under such statutes, and so "fault" mattered.

The "exception" alluded to above occurred in 1953, when Oklahoma added "incompatibility" as a ground for divorce, becoming only the third state to have done so. Although not done in 1953, during the twenty or so years which followed, "fault" based property division and alimony statutes would be revised by the Legislature to eliminate the differentiation between cases where one spouse was "good" and the other "bad" or where both were "bad". Again, those are my words.

Now, some signs are present that a significant number of people think that divorce should be harder to obtain. In this country, terms like "covenant marriage" are starting to pop up. See this discussion in the Emory Law Journal (a Google cached page) for more on covenant marriage (unfortunately, I've not been able to locate a current web address which contains the article - hence, the Google cached page). Most 'covenant marriage' web pages are adversarial, often religious, and have an self-serving agenda to promote, and if you want those web sites, you'll find no trouble in finding them. Objective analysis is much harder to locate. From 1999 through 2002, bills adopting "covenant marriage" were not passed by the Oklahoma Legislature, but it will not be surprising to see it pop up again in later years. In a November 1999 article, the Associated Press wrote, "Aside from the quickie-divorce mecca of Nevada, no region of the United States has a higher divorce rate than the Bible Belt. Tennessee, Arkansas, Alabama and Oklahoma round out the Top Five in frequency of divorce. In a country where nearly half of all marriages break up, the divorce rates in these conservative states are roughly 50 percent above the national average." The Oklahoma Governor's goal is to reduce Oklahoma's divorce rate by one-third in this decade.

Whether we may come to revisit the era in which the "bonds of matrimony" may be made a little or a lot tighter, and who is "good" and who "bad" must again be slugged out in the courtroom, remains to be seen. But, the topic will likely discussed in coffee houses, churches, and the Oklahoma Legislature.

  GROUNDS FOR OKLAHOMA DIVORCE.  Oklahoma's present statute, 43 O.S. §101, reads:

The district court may grant a divorce for any of the following causes:
First. Abandonment for one (1) year.
Second. Adultery.
Third. Impotency.
Fourth. When the wife at the time of her marriage, was pregnant by another than her husband.
Fifth. Extreme cruelty.
Sixth. Fraudulent contract.
Seventh. Incompatibility.
Eighth. Habitual drunkenness.
Ninth. Gross neglect of duty.
Tenth. Imprisonment of the other party in a state or federal penal institution under sentence thereto for the commission of a felony at the time the petition is filed.
Eleventh. The procurement of a final divorce decree without this state by a husband or wife which does not in this state release the other party from the obligations of the marriage.
Twelfth. Insanity for a period of five (5) years, the insane person having been an inmate of a state institution for the insane in the State of Oklahoma, or inmate of a state institution for the insane in some other state for such period, or of a private sanitarium, and affected with a type of insanity with a poor prognosis for recovery; provided, that no divorce shall be granted because of insanity until after a thorough examination of such insane person by three physicians, one of which physicians shall be a superintendent of the hospital or sanitarium for the insane, in which the insane defendant is confined, and the other two physicians to be appointed by the court before whom the action is pending, any two of such physicians shall agree that such insane person, at the time the petition in the divorce action is filed, has a poor prognosis for recovery; provided, further, however, that no divorce shall be granted on this ground to any person whose husband or wife is an inmate of a state institution in any other than the State of Oklahoma, unless the person applying for such divorce shall have been a resident of the State of Oklahoma for at least five (5) years prior to the commencement of an action; and provided further, that a decree granted on this ground shall not relieve the successful party from contributing to the support and maintenance of the defendant. The court shall appoint a guardian ad litem to represent the insane defendant, which appointment shall be made at least ten (10) days before any decree is entered.

Only one ground, incompatibility, will be particularly discussed here since, with the statutory demise of any practical consequences associated with who is granted a divorce and/or why, incompatibility has become the ground of choice. For the most part, Oklahoma divorce trials mainly focus on the issues ancillary to divorce - child custody, visitation, support, property, debt and spousal support - rather than the issue of the divorce itself.

When the Legislature added incompatibility as a ground for divorce in 1953, it didn't see fit to define its meaning. The result of the Legislature's throwing out a word but not saying what it means is that litigants, and the courts, are in the position of arguing about the term's meaning in trials and appeals. This fault lies with the Legislature, not the courts or judicial system.

Oklahoma's Supreme Court has historically been quite faithful in limiting its role to interpretation of statutes adopted by the Legislature. The court tends to take its appeals one case at a time and does not use an appeal as the platform for an exposition or enunciation of some sweeping substantive policy it might like to see. That role belongs to the Legislature. But, when the Legislature simply throws on the table the word "incompatibility" but doesn't define the word's meaning, confusion and argument is bound to result, as it has.

In various appeals after 1953, the Supreme Court eventually seems to have settled upon a definition. A 1961 decision summarizes that meaning: Wegener v. Wegener, 1961 OK 241, 365 P.2d 728. In  ¶s 5 through 9 of its opinion, the Supreme Court stated:

In an endeavor to clarify the various opinions, we hold that the following rules have been established by this court in the application of the incompatibility statute.
1. Actionable incompatibility exists when such a conflict of personalities comes about as to destroy the legitimate ends of matrimony and possibility of reconciliation. Hughes v. Hughes, supra.
2. Such a state may exist although the situation is considered serious by one spouse and less so by the other. Rakestraw v. Rakestraw, Okl., 345 P.2d 888.
3. Where incompatibility exists as a result of the misconduct of the complaining spouse, the trial court is vested with broad discretion in the weighing of the possibilities of reconciliation and the restoration of a normal marital status and in the granting of a divorce. Rakestraw v. Rakestraw, supra.
4. If, in the opinion of the court, this evidence establishes the bilateral incompatibility of the parties, then the grounds for divorce are proven, regardless of the degree that each of the parties contributed to such incompatibility.

As late as 1968, the Oklahoma Supreme Court had occasion to determine whether the trial judge's granting of a divorce to the wife on the ground of incompatibility was sustained by the evidence. Waller v. Waller, 1968 OK 42, 439 P.2d 952.

  SIGNIFICANCE OF GROUNDS FOR DIVORCE. Although exceptions exist, most Oklahoma trial judges known to this writer do not want to hear much, if any, evidence as to grounds for divorce because, as a practical matter, it is understood that if a person wants to be divorced, a divorce will be granted by most trial judges. However, evidence proving a divorce ground might also be material to some other issue in the case. For example, if a man spends marital funds while pursuing a relationship with a girlfriend, he has wasted marital funds and the expenditure is relevant in equitable division of the parties' marital estate. If a woman frequents bars and is inattentive to the needs of her children, that evidence would have relevance in a child custody dispute. If a man beat his wife and caused her physical or psychological injuries which impacted her ability to work or hold a job, that fact is relevant to a claim she might make for spousal support.