Divorcing: Who gets the house?

Jan 4, 2021

Divorce is a stressful, costly, and complex process that involves many issues to include
support, custody, and property division. This article will tackle aspects of property
division in Oklahoma, particularly, it will address the martial house and how the parties
or courts decide who gets the house. While the Court has many different options, this article will
only discuss the most common of the court’s options.

Oklahoma Law

In Oklahoma, separate property involves property obtained prior to the marriage and
inherited or gifted property following the marriage. Marital property can be defined as all
property jointly acquired after the parties were married
. See 43 O.S. § 121. Normally, it
is irrelevant if the property is solely or jointly titled but that it was acquired after the
parties were married. If the property was acquired after the marriage, Oklahoma Courts
will normally decide that property is martial and subject to equitable distribution, which is
the fair division of the marital property between the parties.

A common scenario

John Doe marries Jane in 2018. Life is wonderful and full of hope!. They purchase a
single-family home in Muskogee, Oklahoma. John and Jane did not agree on
how to divide the marital property once they divorce because they were not
contemplating divorce when they were married or when they purchased the Muskogee
house. Unfortunately in 2020, John and Jane’s marriage deteriorates, and John files a
petition for the dissolution of the marriage. Who gets the house in Muskogee? Well, it depends on
a few different considerations. Did John and Jane have children together? Will there
be an award of alimony? Is either party disabled? Was there bad conduct by either
John or Jane? What is John and Jane’s individual ability to earn income? Did John and
Jane agree on who gets the house? Note that this is not an exhaustive list of
considerations, but some of the most common that the courts will consider.

What the Court May Consider

Pursuant to Oklahoma statute, 43 O.S. § 121, the Court will allocate separate property
to the proper owner, but concerning marital property, without an agreement between the
parties, courts must divide marital property as it appears just and reasonable depending
on the aforementioned considerations. In regard to the marital house, Courts have a few
different options in deciding who gets the marital house: (1) award either spouse the
house; (2) order that the house be sold and the proceeds divided between the husband
and wife; or (3) award either the husband or wife the house requiring the party who is
awarded the house to pay the spouse who did not get the house their share of the
home’s equity. Note, it does not matter if the house is titled solely or jointly, but that the
house is considered marital property.

The easiest solution to this complicated issue is that the husband and wife agree on how to
divide the marital property, in this case, the house, and keep it out of the judge’s hands.
Beware of converting separate property to marital property. Separate property can be
converted to the marital property a few different ways requiring division by the court. Some
of the ways that separate property can be converted to marital property is by (1)
commingling marital property with the separate property; (2) retitling solely titled property to
jointly titled property; and (3) using marital funds to improve, finish or pay for separate property.

Oklahoma Courts presume that all property obtained during the marriage is
marital property requiring the contesting party to prove with credible evidence that the
property is separate. See Manhart v. Manhart, 1986 OK 12, 725 P.2d. 1234. The issue
of property conversion leads to the next scenario.

Consider that when John married Jane, he already owned the Muskogee house prior to
the marriage. The house was titled solely in John’s name and John had purchased the
house with separate funds prior to the marriage: clearly, at this point, the Muskogee
house is John’s separate property not subject to division. However as we discussed
above concerning converting separate property to marital property, there are actions
John could have taken during the marriage to convert the Muskogee house to marital
property. For instance, if John had a mortgage on the house and used marital funds to
pay that mortgage during the marriage, or after the marriage, or John and Jane decided to
remodel the Muskogee house using Jane’s separate inheritance to pay for the
remodeling or John could have gifted the house or transferred the title to the house to
Jane during the marriage. In all these examples, the Muskogee house most likely would
be considered commingled property subject to division by the courts. It is important to
consider how separate property is treated before and during the marriage since actions
during the marriage can convert separate property to marital property.

So Who Gets The House?

Divorce in Oklahoma involves the allocation of property, whether separate property or
marital property, depending on when and how the property was obtained. Oklahoma
Courts presume all property obtained after marriage is marital property subject to
equitable disposition. In addition, separate property can be converted to marital property
if the separate property was commingled, gifted, or transferred during the marriage. In those
cases, the separate property would likely be considered marital property subject to division
by the courts.

As an attorney, I promote married couples fully devoting and committing
themselves to each other; however, property considerations are important matters to
consider before and during the marriage. For more information about divorce and
property division in Oklahoma, feel free to contact James M. Green Attorney At Law at
(918) 448-9104, james@jamesmgreenlaw.com


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