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Frequently Asked Questions

Criminal Defense

What Should I Do if I Am Arrested?

The first thing you should do if you are arrested is call a criminal defense lawyer. Unfortunately, rather than call a lawyer, here is a short list of frequent mistakes people make after an arrest:

Make a statement to police that can be used against them
Call a friend or family member and make a statement on a recorded line, or in a recorded room, that can be used against them
Pay a bond that is too high, resulting in a reduction of funds necessary for a qualified criminal defense lawyer

A criminal defense lawyer can help. A skilled, experienced attorney will remind you not to make any statements, to anyone, and not to discuss your situation on the phone, with anyone. A criminal defense lawyer can also help you find a bondsman and even help you get your bond reduced, saving you money. Research shows that the sooner your attorney is able to work on your case, the better the outcome of your case will be.

How Can I Stay Out of Jail?

Merely being accused of a crime is a life-changing event. Even if the charge against you is dismissed or if you are acquitted by a jury, the accusation can stain your reputation forever. If you are a licensed professional, you may have difficulty keeping your license or finding employment after a criminal charge, no matter the outcome. Making a solid defense is expensive, regardless of your guilt or innocence.

No criminal defense lawyer can promise you that you will not face any jail time. The outcome of any criminal defense case is highly fact-specific. Factors include, but certainly are not limited to:

The jurisdiction in which you are charged, and its unique policies
The charging prosecutor and the policies of its office
The judge assigned to your case
Your history and reputation, including any prior interactions with law enforcement
The facts and circumstances of your case, including the nature and severity of the crime you are charged with
Your choice of a lawyer

The criminal defense lawyer you choose is an important part of your defense strategy. You need a lawyer with special experience, training, and focus for the defense of charges like the one brought against you. You need a lawyer who is detail-oriented and who will study the law and the facts of your situation. Your lawyer will need strong communication skills to communicate with the other players in your case, including witnesses, the opposing attorney, and even the judge. And, importantly, you need a lawyer who tries cases, who is comfortable in the courtroom, and who won’t be put off by the idea that a legal argument or a jury trial may be necessary for the resolution of your matter.

In most criminal defense cases, the prosecutor will make a plea offer to you, through your attorney, to resolve the case without a trial. Prosecutors make their initial case assessments and plea offers based on the information available to them, which means that they may not know the full context and details necessary to evaluate the strengths and weaknesses of the case fully. Your defense attorney can help you during negotiations and pretrial litigation while preparing your case for trial. By working with and listening to your lawyer, you will be able to make the choice about whether to compromise and plea or not, and about whether to take the stand and testify or not.

What Defenses May Be Raised to Financial Crimes?

A defense to allegations of financial crimes may include the absence, or lack of, intent. “Intent” is an element of virtually all white-collar crimes, meaning that the government must prove – beyond a reasonable doubt – that the defendant intended to wrongfully obtain money or property. In many white-collar crimes, the defendant often had some authority to take specific types of action on behalf of their employer, giving rise to a defense of mistake (with no intent) or even that the action taken was not a crime at all.

White-collar defense demands a high level of sophisticated data analysis and attention to detail. Our office uses a variety of systems, including artificial intelligence, to enhance document review in cases involving volumes of information. Certain types of financial misconduct fall within the scope of both state and federal prosecutors, administrative agencies, and private entities, including civil attorneys, adding layers of complexity and potential financial exposure, even when criminal charges are successfully avoided. Our combined civil and criminal trial experience and cross-training give us a unique set of skills for the defense of white-collar investigations.

Divorce

Will I Be Reimbursed for My Attorney Fees in a Divorce or Child Custody Case?

Family law statutes give judges broad discretion to “fee-shift,” or to require one side to reimburse the other side for part or all of their attorney fees incurred in the case. Although the law is clear that attorney fee awards in divorces are not supposed to be awarded simply based on who “won,” most attorneys assess their client’s attorney fee claim based on the outcome of the case (did they “win” or not). There are a few big factors that impact attorney fee decisions:

Income and resource disparity. If one side makes significantly more money than the other, this can be a factor in awarding fees to the side with less income.
Bad litigation behavior. If one side behaves badly in the case, such as missing court dates, not responding properly to discovery, or other actions that drag the case out, this can be a factor in awarding fees to the side that did not engage in the bad behavior.
Which parent puts the interests of the child above their own. In child custody cases, the judge may assess whether the parents were self-centered or if their claims in the case were child-centric. If a parent acted selfishly, dragged the case out, or made false claims to try to gain a strategic advantage, these can all be factors in awarding fees to the parent who acted with the interests of the children first.

One can never enter divorce or custody litigation as if they are assured an award of their attorney fees. There are too many factors and there is too much discretion involved. However, each side should be aware of the factors that impact attorney fee awards and behave accordingly. Litigants who engage in bad or selfish behavior do so at great risk – risking their credibility and exposure to an order requiring them to pay the other side’s attorney fees.

*The links go to Oklahoma appellate cases, which include important discussion about the law as it concerns attorney fee awards.

My Wife and I Have Been Separated for Years. She Had a Child After Separation, but I Am Not the Father. Do I Need to Do Anything?

A man is legally presumed to be the father of a child if he and the mother of the child are married to each other and the child is born during the marriage or within 300 days of the divorce or if, for the first 2 years of the child’s life, the father resided in the same household with the child and openly held out the child as his own.

This scenario occurs frequently, especially in cases where spouses have been separated for months or years but have not filed for divorce or have filed for divorce but the case has not moved forward. In these situations, there are special time limits for the husband, the “presumed” father, to take legal action, or he will forever be legally determined to be the father and obligated to financially support a child that was not planned by him, and that is not biologically his.

These situations can be complicated to sort out. If you are involved in a situation like this, you need experienced counsel immediately. If you are involved in a situation concerning the paternity of a child, please use the contact form on this page.

How Much Will My Divorce Cost?

It is somewhat of a cliché to say, “Every case is different,” but it is true. The cost of a divorce varies depending on a number of complicating factors, including the number of issues involved, the degree of civility or hostility between the parties, the quality of each side’s respective attorney, and whether experts are needed. Divorce attorneys are prohibited from being paid on a contingency basis, which means the attorney cannot be compensated based on the outcome of the case. As a result, most divorce attorneys bill by the hour for their time, regardless of the outcome.

We offer structured flat-fee arrangements to divorce clients to provide certainty of the cost of each option and stage of a divorce.

The cost of a divorce can be significantly increased if one side is unreasonable. This means that you can be very reasonable and set realistic expectations, but if your spouse is unreasonable or vindictive, the case may take longer and cost more to bring to resolution. A quality divorce attorney can move the case forward, but a quality attorney is going to charge more for their time than an ordinary or inexperienced attorney.

How can I assess my alimony claim?

In the most general sense, support alimony is about need and ability to pay. Spousal support alimony may be awarded if the requesting spouse demonstrates both: 1. A “need” for alimony and 2. That the other spouse has the “ability to pay” support. Spousal support alimony is a “transitional” concept, meaning spousal support alimony is generally supposed to be calculated to assist the spouse who needs the support to “transition” into post-marital life. Historically, alimony was only awarded to females. The United States Supreme Court determined that considering gender for alimony claims violates the Equal Protection provision of the United States Constitution. Now, either spouse may make a claim for alimony, regardless of gender. Neither Arkansas nor Oklahoma laws give us a method or mathematical formula for calculating support alimony. Alimony is fact-sensitive and depends upon the application of a number of factors, including:

The length of the marriage
The age of each spouse
The earning and income-producing capacity of each spouse
The physical condition of each spouse
The financial means of each spouse
The mode, or standard of living to which each spouse became accustomed during the marriage
The amount of income-producing property awarded to each spouse
The anticipated length of time it will take for the recipient to transition to the workforce
The recipient’s cost of living during the transition or adjustment period
The conduct of the parties

Additionally, there is a special type of alimony awarded when one spouse works to put the other spouse through school, and then, shortly after graduation, they divorce. The spouse who worked to put the other spouse through school may make a claim for compensation for their sacrifice.

Overall, alimony is supposed to be reasonable, under all of the circumstances of the case. Whether we are seeking alimony or defending alimony, our process for handling cases helps our client establish the important facts from the very beginning. Most family law attorneys know these factors, but there is a difference between knowing the law and knowing how to try a case in a courtroom. Addressing alimony in a case is about more than knowing these factors – it is about persuasively presenting the facts and the evidence to the judge in a compelling way.

Child Custody

How do I prove how much time a parent has had with a minor child?

Every separated or divorced parent of a minor child should keep a simple calendar and keep notes about when they have the child and when the other parent has the minor child. Each parent should especially note when there is a court-ordered schedule and the other parent routinely does not exercise the time they could have under the schedule.

How tracking parenting time can help? If there is a court order for custody and visitation and a parent frequently declines to exercise their time with a child, their failure to exercise their time with a child could be a reason to modify the custody and visitation schedule. Whether there is a court order or not, when parents are separated, it is a good idea to make a record of the time that each parent has each minor child. One factor that can impact child support orders is the number of overnights each parent has. When a non-custodial or non-primary parent has 121 or more overnights over a year, they can get a discount on their child support obligation called a “parenting time adjustment.” In a divorce or child custody case, sometimes a parent will try to get a schedule of at least 121 overnights with a child just so that the parent can get the parenting time adjustment child support discount. In those cases, an accurate calendar or record showing how much time that parent actually exercises can be good evidence either for or against the proposed schedule. There is a child support law that says when a parent gets the parenting time adjustment discount but does not exercise enough time with the child to have the discount, the other parent can go back to court and ask for the full amount of child support that should have been paid all along without the discount. In those cases, accurate records showing which parent had the child are valuable evidence proving that the child support obligor did not spend the time necessary to receive the child support reduction.
How to properly keep a record of parenting time and events? Keeping track of parenting time and significant events is relatively simple. All it takes is a small calendar or daily planner. A mobile phone app that allows you to keep notes works, too. When there is a noteworthy event related to the other parent or the child, make a simple note about what happened. Include enough information about what happened so that if you are looking at it months or even years later, you will be able to remember the important details. If the notes are made very close to when the event occurred, such as the same day or the next day, there is a special rule of evidence that allows such notes to be read into evidence in court if necessary. The law treats records and notes made at the time events happened as more reliable and trustworthy instead of sitting down and trying to think back and remember events that weren’t recorded when they happened. If you use an app to keep your notes, make sure that your electronic devices are routinely backed up so that you can access the information when needed. If you use a paper calendar, try to use a calendar that can easily be copied or scanned. Do not keep notes about your private life on the same calendar, and do not make derogatory notes or comments about the other parent. Keep in mind that at some unknown point in the future, complete strangers such as lawyers, judges and even child custody experts could be looking at your notes and deciding if the notes are reliable and accurate.

Can a father obtain custody of a child if the mother is a fit parent?

Yes. A father can obtain custody, and a mother can lose custody, even if both parents are fit parents. There are many myths and misconceptions about child custody. Here is a short list:

Mothers will have an advantage in a custody case, especially if the child is a toddler or younger
Mothers cannot lose custody unless they are found to be “unfit”
Fathers will likely have alternating weekends, or some form of parenting time (visitation), that is less than the mother’s time
Mothers will not have to pay child support
Only the noncustodial parent will have to pay child support – the custodial parent cannot be ordered to pay child support

The law presumes that each parent is fit. “Fitness” in the child custody context generally has more to do with that individual parent, and that parent’s time and relationship with the child, than it has to do with child custody between parents. In other words, an unfit parent is someone who poses some sort of safety risk to their child, resulting in severe restrictions and limitations on their contact with a child. Since it is presumed that each parent is a fit parent, neither parent has an advantage over the other parent simply because they are fit.

It is unconstitutional for a judge to prioritize custody to one parent over another based on that parent’s gender. There is still a perception that some judges will lean towards the mother having more time with younger children, especially if they are breastfeeding, but that is changing. Oklahoma law prioritizes shared parenting, so many judges are encouraging the mother to pump breast milk for the child’s time with the father, but breastfeeding is not being used as a reason to limit the father’s parenting time.

Unless there is a question of parental fitness for one or both parents, child custody contests are comparative and situational. In other words, the child’s “best interests” will be based on what each parent has to offer the child, and how each parent treats the other parent. The standards of the case will vary from case to case. In one case, a parent may obtain custody because they live closer to and have access to superior schools and hospitals than the other parent. In another case, a parent who lives by the school and hospital may lose custody because they work nights and weekends and are unavailable.

When all things are equal, the judge is supposed to assess which parent is most likely to encourage a relationship between the child and the other parent. One way this assessment is made is by viewing which parent follows the court’s orders (and which parent does not). Oklahoma’s appellate courts have upheld changes in custody that were made due to one parent not following court orders and interfering with the other parent’s time and relationship with the child.

Child support has more to do with each parent’s respective income and parenting time. When parents have equal time, the parent with the highest income is the child support obligor, even if that parent has custody. It is possible for a parent having demonstrably more time with a child than the other parent to still be the child support obligor (payor), depending on each parent’s income.

Neither parent can afford to take anything for granted. In a child custody dispute, each parent has to work hard to make their best presentation to the court about why they should have maximum parenting time.

What is a parenting coordinator?

A parenting coordinator is an impartial third party appointed by the court to assist parents in resolving issues related to parenting and other family issues. A parenting coordinator must be a family law attorney or a licensed mental health professional. Parents may agree to the appointment of a parenting coordinator, or the judge may appoint a parenting coordinator even if the parents don’t want one, provided that the judge makes a finding that the situation between the parents is “high conflict.” A parenting coordinator is appointed by a special order that sets out the coordinator’s roles, responsibilities, and scope of work.

Once a parenting coordinator is appointed, either parent may bring certain parenting issues and disputes to the parenting coordinator. In most cases, the dispute is initially presented by email, then the parenting coordinator may request input from the other parent and even call a Zoom or in-person meeting. The parenting coordinator typically hears each parent’s side of each issue. The parenting coordinator may interview the children if necessary, although this is rare. After hearing each side, the parenting coordinator issues a written report with a recommendation for resolution of the disputed issue. The report is often in the form of a letter that is mailed to the court for filing. The written report becomes a court order within 10 days unless one of the parents files an objection to the report. Unless the parenting coordinator made a serious, obvious mistake, an objection to a parenting coordinator report has a low chance of success, as parenting coordinators are a great asset to judges. The written reports can result in mini-adjustments and additions to the court orders, but they cannot make long-term changes to parenting time.

Parenting coordinators can be excellent resources when communication between parents is difficult, when one parent is unreasonable or a bully, when time-sensitive matters need prompt attention, or when other issues arise that are important but would not be enough to initiate litigation. The best results from parenting coordinators happen when the parent who needs assistance treats the parenting coordinator like a judge. This means identifying the issues, trying to resolve them before taking them to the parenting coordinator and making the issues as simple as possible. Generally, the fewer issues that the parenting coordinator has to deal with in any particular session, the better the parenting coordinator’s decision and report will be.

What is the Difference Between Sole Custody and Joint Custody?

Custody Rights

Joint custody and sole custody are legal decision-making concepts. Parents with joint legal custody must make child-related decisions together, or jointly. When a parent has sole custody, that parent is permitted to make the final call, or decision, on major decisions affecting the child.

Child-related matters include:

Educational choices
Religious practices
Elective medical decisions
Forms of discipline
Travel
Selection of extracurricular activities

In a sense, joint custody and sole custody have little to do with visitation or parenting time. Parents may have equal time with their child, yet one may be designated as the “sole custodian” to make the final call for major child-related decisions. Or, one parent may have the child most of the time, yet both parents may have joint custody and still be expected to co-parent and share decision-making responsibility.

However, child-related matters related to custody generally concern “major” decisions affecting the well-being of the child. Legal decision-making authority may matter less for parenting choices that have less long-term impact, such as clothing and style, diet, and daily activities. Viewed this way, there is a very loose relationship between a parent’s decision-making authority and the time that the parent has with the child. A non-custodial parent may still decide things during visitation such as what food the child eats, what they do together, other children that the child can play and socialize with, and bedtime. The more time a parent has with a child, the more that parent will be a decisionmaker for the child, even if that parent is the “non-custodial” parent, due to the nature of day-to-day decisions that must be made when parenting a child. Both joint custodians and non-custodians will be expected to take their child on time to the child’s school, appointments, practices and games, regardless of who and how the appointment was scheduled.

There are four types of custodial arrangements:

Joint legal custody. This is the most common scenario. Both parents have equal decision-making rights, and neither parent has superior decision-making authority, so they have to agree on final major decisions, or they will need to get help making the decision from someone like a parenting coordinator, mediator or judge.
Sole legal custody. The custodial parent has the legal authority to make the final call for major child-related decisions.
Joint custody with the final say. Sometimes, the court order will include a joint custody plan and contain all the joint custody language and orders, with one extra provision providing one parent ultimate decision-making authority in the event of a dispute. Some argue that this is really sole custody in disguise, but it is not.
Parallel parenting. Parallel parenting is an unusual, uncommon and disfavored approach to child custody. It is sometimes implemented in extremely dysfunctional, high-conflict cases. In parallel parenting, the parents may not communicate or engage with one another in any meaningful way, and each parent is responsible for making decisions about their child during their respective parenting time.

The law provides that each parent is entitled to access their child’s academic and health records, regardless of custodial status. Unfortunately, third-party providers such as school administrators, physicians and counselors are all affected by the myths and misinformation about what custody means. A joint custodian may experience less resistance from third parties than a non-custodial parent.

Child Custody Myths

Noncustodial parents have no rights	False. Custodial status does not necessarily impact parenting time or visitation rights. A designation of “non-custodial parent” does not mean that you have lost parenting rights. A non-custodial parent has the legal right to access their child’s records, including records from school, doctors, and child care providers. Generally, if the custodial parent dies, the noncustodial parent becomes the custodial parent.
The custodial parent gets to make every single decision about the child	False. The custodial parent is the final decision-maker for major decisions affecting the well-being of the child. The noncustodial parent may still make ordinary day-to-day decisions for the child during visitation. Even for major decisions, the custodial parent may be required to confer with the non-custodial parent before making the final call.
The custodial parent gets to decide whether the non-custodial parent gets visitation	False. The custodial parent has a legal duty to facilitate and foster a relationship between the child and the non-custodial parent.
The non-custodial parent will have to pay child support	Possibly. Child support is mostly a function of the parents’ respective gross incomes and their parenting time. There are frequent scenarios where the custodial parent is required to pay child support to the non-custodial parent.
The custodial parent will always get to claim the child for tax purposes	Possibly. However, a judge can re-allocate this benefit between the parents, and the IRS will recognize the court order. The custodial parent may be required to fill out IRS Form 8332.
If one parent has sole custody, then the parents do not have to communicate or co-parent with one another	False. Each parent is entitled to child-related information, especially from school and medical care providers. The custodial parent has a duty to encourage a relationship between the child and the non-custodial parent.
The custodial parent will be the only one who can take a vacation with the child outside of the United States	False. The custodial parent will have the authority to obtain a passport for the child. However, the court order can permit the non-custodial parent to access the passport for travel.
The custodial parent will be able to relocate from Oklahoma if they desire	False. The law concerning relocation has several factors. Custodial status is just one factor for relocation. The custodial parent will have a slight advantage in the event of a relocation request, but the relocation will not be automatically approved simply due to custody.
The noncustodial parent will only have alternating weekend visitation with the child	False. Custody is distinct from time. Oklahoma law creates a presumption of “shared parenting,” meaning equal time or substantially equal time, regardless of joint custody or sole custody.

How Likely Am I to Get Custody?

Judges have a great deal of discretion when assigning custody. Judges have the ability to award joint legal custody but to designate one parent as the final decision-maker for disputes over one or more child-related matters. There is presently no legal preference or presumption in favor of or against an award of joint legal custody or sole legal custody. It is improper for a judge to award a parent joint or sole custody based solely on that parent’s gender. Even though it is unconstitutional to favor one gender over another when determining custody, it is no secret that some judges still have a default preference for placing children with the mother, especially when the children are younger.

To share joint custody, the parents generally must demonstrate an ability to communicate and co-parent. Sometimes, in divorce, a parent will try to obstruct communication and co-parenting so the other parent cannot make a case for joint custody. There are cases where this strategy backfires, as judges are required to assess which parent will encourage and facilitate a relationship between the child and the other parent.

There are some extreme cases where both parents have behaved so badly in the eyes of the judge that the judge will award both parents joint custody rather than give one of the parents sole custody. As joint custody requires parents to agree on major decisions, situations like this often lead to the appointment of a parenting coordinator or other expert, and many times, these cases end up back in court.

What Happens if I Don’t Get Sole Custody or Joint Custody?

Being a noncustodial parent does not mean that there has been a loss of parental rights. Being a noncustodial parent does not mean that the noncustodial parent is “unfit.” The noncustodial parent may still have liberal visitation, or parenting time, access to all information about the child’s development and wellbeing, as well as the ability to attend the child’s events and activities.

Even when one parent is awarded sole custody, the noncustodial parent has the right to access all child-related information, including medical and academic records. If one parent has sole custody and dies or becomes incapacitated, the noncustodial parent automatically has custodial rights, unless there is a question about parental fitness.

On rare occasions, third-party providers such as teachers and pediatricians can be reluctant to share information with a non-custodial parent, even though the law provides for information access, especially if the custodial parent has misled the provider about what custody means. In those circumstances, sometimes the issue can be cleared up with a copy of your court order and a letter from your attorney.

I Recently Separated From My Partner. We Had a Child Together, but We Were Never Married. What Should I Do?

When the parents of a child were never married, Oklahoma law places sole legal and physical custody of the child automatically with the biological mother, even if the father signed an acknowledgment of paternity, and even if the father is named on the child’s birth certificate.

The father’s only right to the child is his duty to pay child support.

In these circumstances, the father would typically benefit significantly by initiating a lawsuit to obtain an order to judicially establish his parental rights, including his custodial rights and rights to visitation.

The father will not have legal rights, and the mother retains all custodial rights and control unless the father files and obtains a judicial order that expressly determines that he is the father and that he has parental rights of custody and visitation.

Same-sex couples have similar rights and obligations.

Oklahoma law provides for a two-year “lookback” in these cases for child support. When an individual is determined to be the father, the judge is required to order the father to pay past-due child support for the two years prior to the filing of the petition initiating the case. If the parents lived together for part of the 2 year lookback period, the father may not have to pay child support for the time that they lived together. Also, if the father paid child support during that two-year lookback period, he may get credit for those payments.

How can I get help for children in my extended family who aren’t being properly cared for?

Because so many guardianships concern parental fitness, many times there are other legal considerations and rights at issue. For example, if family members do not act quickly enough to intervene for their relative children, the state may remove the children and place them in foster care. In other cases, guardianship can be a predicate to the establishment of grandparent visitation rights. Guardians generally have the responsibility for managing the child’s property and income, such as Social Security survivors or disability benefits. Individuals involved in or associated with guardianship cases will benefit from the analysis and advice of an experienced, knowledgeable family lawyer.

Who gets to claim our child on taxes?

Having the ability to claim a “qualifying child” may give a taxpayer several tax benefits, such as head of household filing status, the exemption for a dependent, the child tax credit, the child and dependent care credit and the earned income tax credit. The IRS has specific tests to determine if a child is a qualifying child. Claiming a child for tax purposes can have significant value. The 2017 Tax Cuts and Jobs Act doubled the maximum child tax credit from $1,000 to $2,000 per child under age 17 and added a $500 nonrefundable credit for children ineligible for the $2,000 credit.

A child may be a dependent of only one taxpayer for a given tax year. In other words, divorced parents may not claim the same child for the same tax year.

Generally, the child will be treated as the qualifying child of the custodial parent.

Parents can agree, or family court judges can order, that the noncustodial parent may claim the child as a dependent and as a qualifying child for the child tax credit. Oklahoma appellate courts have held over and over again that the right to claim a child as a dependent for tax purposes is a modifiable child support issue and that judges have jurisdiction to allocate the federal income tax dependency exemption for children. A judge can order a custodial parent to sign IRS Form 8332 to permit the noncustodial parent to claim a child for a given tax year.

However, even in those circumstances, IRS rules will not permit the noncustodial parent to claim head of household filing status, the earned income credit, the credit for child and dependent care expenses, the exclusion for dependent care benefits, or the health coverage tax credit.

Here is a reason why claiming a child is a child support issue: under tax laws, child support is not taxed as income, and it is not a deductible expense for the child support obligor. If the parent who receives child support also gets to claim the child every year, that parent effectively receives a “windfall” by having all of the tax benefits related to the child (receiving both non-taxable child support and the child dependency exemption). So in both joint custody and sole custody cases, even where the child support obligor has limited visitation, courts typically allocate the dependency exemption on an alternating basis so that at least every other year, the person paying child support gets at least part of the tax benefit for the child they are supporting.

There is an exception: when the child support obligor is seriously behind on child support or does not pay altogether, that parent may not be permitted to claim the child for income tax purposes. It would not be fair to allow a nonpayer to claim a child that they are not supporting when the other parent has had to go for months without any child support, and it would not be fair for a nonpayer to fail to pay support then get a tax refund from the child they were not supporting, even if the tax refund goes toward child support. In many cases, courts require the noncustodial parent to be current on child support by the end of the tax year, or the noncustodial parent will lose the ability to claim the child for that tax year.

Are Custody and Child Support Related?

Child Support and Child Custody are Legally Distinct From One Another

Okla. Stat. tit. 43 § 111.1(B) says,

B. 1. Except for good cause shown, when a noncustodial parent who is ordered to pay child support and who is awarded visitation rights fails to pay child support, the custodial parent shall not refuse to honor the visitation rights of the noncustodial parent.

2. When a custodial parent refuses to honor the visitation rights of the noncustodial parent, the noncustodial parent shall not fail to pay any ordered child support or alimony.

If that’s not clear enough, in 1983, the Oklahoma Supreme Court ruled,

The welfare of the child is paramount, and the duty of a noncustodial parent to support his or her child is contingent upon the needs of the children. It is not dependent upon the opportunity of the parents to exercise visitation privileges.

The duties of support and visitation are not interdependent and should be separately enforced.

Entitlement to child support is not contingent upon visitation rights.

This was in the case of Hester v. Hester, 1983 OK 50, 663 P.2d 727.

So, we are told that “legal” custody and visitation are separate from child support.

In Some Ways, Child Support and Child Custody are Not Very Distinct

However, as a practical matter, if a parent is behind on child support, that parent should expect extra scrutiny and skepticism from the judge if the parent who owes child support is in court for any reason. Many parents know that child support is separate from visitation, so they expect to be able to go to court to ask for changes to visitation or custody and have a level playing field.

They won’t.

Okla. Stat. tit. 43 § 112(G) says,

G. In any case in which a child support order or custody order or both is entered, enforced or modified, the court may make a determination of the arrearages of child support.

This means even if neither side really brings up the issue of child support before trial, if the parent who was ordered to pay hasn’t been paying, you can expect it to be brought up. The reality on the ground is that judges are very critical of parents who are not paying their court-ordered child support. By not paying child support, the nonpaying parent effectively hands the other parent a hammer: a powerful, blunt weapon that they can use to attack any claims for visitation or custody made by the nonpaying parent. Some examples:

The nonpaying parent says, “Judge, they’re not taking the child to the doctor as needed. I am available and will take the child if given the opportunity.”

The other parent: “It would be easier to make appointments if we had the child support we need to make ends meet!”

The nonpaying parent says, “Judge, the child is making statements that indicate that the other parent is talking bad about me.”

The other parent: “Judge, he’s not paying child support. Life in our home is extra difficult as a result.”

Child support delinquency will be treated as a complete defense by the other parent, and the judge will likely be very critical of any issues raised by the parent who is behind on child support.

Times get tough, and people get behind, but if you have custody and visitation issues, you cannot afford to get behind on child support. You cannot imagine the additional scrutiny you will go through. If you are behind on child support and go to court about an issue related to custody or visitation, you can expect to be asked about your hobbies and lifestyle in the most invasive, intrusive ways possible.

If you’re behind on child support yet you frequent casinos, use tobacco, vape, travel, carry an expensive cell phone, play video games, eat at restaurants, drink at bars, donate to a church, hunt, fish, drive a nice car, or buy new tires for your car, your credibility will be absolutely destroyed in court. If you are behind on child support, you cannot afford any indulgence, any luxury, or any extravagant expense. The court will be a very unpleasant experience.

Paying Child Support Can Benefit Your Custody Case

Child support and visitation are not equivalents. A noncustodial parent who pays all their child support and is being denied visitation cannot expect the custodial parent to receive the scrutiny and criticism that the noncustodial parent would receive if they did not pay child support. Being timely and current on child support is viewed as a minimum standard, and a parent who pays on time may not receive special credit or even acknowledgment for it.

All child-related matters are controlled by a concept called equity. Here is the rule you need to know about equity:

He who seeks equity must do equity and come into court with clean hands.

This means you will have a hard time asking for anything and getting any kind of good result if you have not done what you were supposed to do.

However, if there is no court order, voluntary child support payments will look good for you, especially as opposed to “I’m not paying until there’s an order.” Every parent has a legal duty to financially support their minor children, even if there is no child support calculation. If there is no court order and the other parent is denying access to a child without justification, you will be able to point out that despite their obstinance, you continue to pay child support because you are a responsible parent. If there is a court order and the other side is interfering with your visitation or parenting time, you will be better served to continue paying your child support rather than taking the position, “I’m not paying until I get to see my kid.” If you refuse to pay because the other side is violating the order, you will both be viewed as guilty of violating court orders, even if the other side violated the order first.

If you are ordered to pay child support and your child custody situation needs to be changed, you should prioritize making your child support current. Otherwise, you risk spending a great deal of time and money only to lose the case, and for your child to not get the help it needs, because you allowed the judge to be distracted by your nonpayment.

Can a protective order be used to obtain custody of a child?

There are two answers to this question:

No, a protective order cannot be used to obtain child custody.

The protective order statute includes the following:

A protective order issued under the Protection from Domestic Abuse Act shall not in any manner affect title to real property, purport to grant to the parties a divorce or otherwise purport to determine the issues between the parties as to child custody, visitation or visitation schedules, child support or division of property or any other like relief obtainable pursuant to Title 43 of the Oklahoma Statutes, except child visitation orders may be temporarily suspended or modified to protect from threats of abuse or physical violence by the defendant or a threat to violate a custody order. Orders not affecting title may be entered for good cause found to protect an animal owned by either of the parties or any child living in the household.

In a case called Murlin v. Pearman, the Oklahoma Supreme Court held that a protective order was frivolous when it was filed to gain an advantage in a child custody case.

So the law is clear: a protective order cannot be used for child custody. Child custody cases are separate legal matters that are filed in family court.

Yes, protective orders are used every day to obtain child custody.

Every day in Oklahoma and Arkansas, people who are separating or breaking up file protective orders to gain leverage in their divorce or child custody case. Judges routinely award protective orders that include and cover minor children, meaning that the minor child is removed from the other parent, even when the other parent has a valid court order for custody. Parents use protective orders to obtain emergency, ex parte orders based on false or exaggerated statements even when they know that what they claim would be insufficient to obtain emergency custody of the child. Judges allow this to happen and refuse to find that it is frivolous conduct even though the Oklahoma Supreme Court said that doing so is frivolous.

If a protective order has been filed against you simply to obtain an advantage in a divorce or child custody case, you will need the assistance of an attorney to review the allegations and advise you concerning your options.

Can a child tell the judge where it prefers to live?

Yes. In many child custody cases, a judge may consider a child’s preference as a factor in its decision. The law says that at age 12, a child is of sufficient age to form an intelligent preference about custody and visitation. Children younger than 12 may also state a preference if the circumstances show that the child is intelligent and has good reasons for their preference.

No matter the age of the child, many courts view child preference testimony with skepticism. A child may be subject to manipulation, especially if one parent has had the child isolated from the other parent for a significant period of time or if one parent has substantial financial resources and can promise the child a reward for stating a specific preference. Even if no one has tried to influence a child, the child may feel an extraordinary, inappropriate amount of pressure when asked to “choose” a parent. Some judges are less comfortable than other judges with the idea of bringing a child into their office for an interview, so child preference interviews take place in several non-exclusive formats:

The parents may agree on what the child’s preference is, even if they do not agree about what is best for the child (in other words, a parent can claim that despite a child’s preference, the child’s best interests would be served by an alternative arrangement)
The child’s preference may come through the child’s counselor
The child preference may come through a court-appointed attorney for the child (different from a guardian ad litem)
The child’s preference may come through a court-appointed guardian ad litem (different from an attorney for the child)
The child may state a preference directly to the judge

A child’s preference does not mean that the child will run the show. The judge has to consider the preference in light of all the other circumstances of the situation. If your child has a strong preference, you cannot take anything for granted, and you will need to prepare your evidence for your custody case as if the child may not be interviewed at all.

What is the Process for Emergency Child Custody?

To request emergency custody of a child, the person seeking the emergency must be able to show that an emergency order is necessary because the child is in harm’s way and will likely be irreparably harmed if the emergency is not granted. An emergency motion must have a report of some kind attached, such as a police report, DHS report or a sworn statement by someone who is an eyewitness to the dangerous situation. In at least one Oklahoma court, the sworn statement cannot be made by the person who is asking for emergency custody – it must be from someone else.

The Background For Oklahoma’s Emergency Child Custody Law

Years ago, the law about emergency orders was unclear. There were no clear standards defining what was an emergency. As a result, people would claim things were emergencies simply because of their own oversight or disagreements. For example, it was common to see separated or divorced parents file emergency motions during Christmas break when they simply could not agree on how to divide the break.

In 2010, Oklahoma passed a law setting standards for emergency custody requests. The motion must show that the child is in surroundings that endanger the safety of the child and that if such conditions continue, the child would likely be subject to irreparable harm. Because emergency motions are presented in a hurry, the statute attempts to set some standards and expectations for reliability. In addition to the requirement that a report or a sworn statement be attached to the motion, the statute also provides that if any of the information in the motion that the judge relied on turns out to be false, the person who asked for emergency custody must pay attorney fees and costs that resulted from their emergency motion.

The Procedure For Emergency Child Custody Requests

The person seeking emergency custody has to create (type out) an emergency motion, attach a report or a sworn statement in support of the motion, and sign a verification attached to the motion asserting that the allegations are true. The person seeking emergency custody must also create a proposed emergency order setting out the relief they are requesting. Most judges require the person seeking emergency custody to call the other side (usually the other parent) to give them notice that they are seeking emergency relief. Emergency custody motions are generally reviewed the same day, and the judge will either issue an order granting emergency relief or deny the motion for failure to properly allege an emergency.

What are surroundings endangering the safety of the child, and What is irreparable harm? The answers depend on the facts and circumstances of each case. If domestic violence is taking place in a child’s home, it is probably an emergency situation, even if the aggressor is not the other parent. If drug use is taking place in a child’s home, again, even if the user is not the other parent, it is probably an emergency situation. However, other situations depend on the age and needs of the child. For example, there is a big difference between a 15-year-old being left at home for an hour versus an infant being left alone for an hour.

Even with the law setting standards for emergency custody orders, the procedure for emergency custody varies widely in each county and with each judge. For example, protective order law includes this:

Even though that is the law, the reality is many judges allow people to file protective orders on behalf of their children and use the protective order process to completely disrupt custody and visitation schedules for months. In some cases, the person who is seeking emergency custody will file a motion for emergency custody with the family judge and a petition for a protective order, sometimes with a different judge, and sometimes even in a completely different county! The standards for emergency custody and protective orders are different, so a parent could have inconsistent rulings by different judges concerning the allegations.

If an emergency order is granted, judges and attorneys operate by a “rule of thumb” and generally expect to have an adversarial hearing (a mini-trial) on the emergency either 10 days or 14 days after the emergency order was granted. There is no law on this. If DHS has an open investigation, some judges will refuse to permit the full hearing until the DHS investigation is complete. This means that if an emergency order is granted, months could pass before there is ever any kind of meaningful hearing or progress in the case.

What This Means For You

If you believe a child is in harm’s way, you have to have evidence to convince the judge that an emergency order is necessary that day. Most judges initially view emergency requests with skepticism, because everyone knows that some people still say things are emergencies that are not. You must be proactive about identifying potential witnesses and finding out if there are any reports, including police reports, DHS reports, news articles or medical records. You should also look for other evidence, including text messages, photos, and social media posts that you may be able to use. If you are successful in getting an emergency order, you cannot take anything for granted. You must continue to prepare for the adversarial hearing, which means organizing your evidence and subpoenaing your witnesses. You should expect that the other parent will deny everything at the hearing, so you will need as much strong, independent proof about the situation as you can get.

If the judge will not permit a full, adversarial hearing until the DHS investigation is complete, you may think that the outcome will depend on what DHS says. This is not necessarily the case. DHS may “unsubstantiate” the allegations, yet the judge may disagree with DHS and keep the emergency in place. DHS may “substantiate” the allegations, but the judge may find that there is no emergency and vacate the emergency order. The work of DHS, like any other investigator, is simply a factor, or part of the evidence for the judge to consider.

Sometimes there are law enforcement investigations taking place at the same time as the emergency custody request, where law enforcement tries to determine if a crime possibly occurred. Just like with DHS, it is possible for someone to be arrested, yet the family law judge determines that there was no emergency. It is just as possible for no arrests to be made and for the family law judge to find that the allegations are true and keep the emergency order in effect.

Likewise, if there is a protective order in front of one judge and an emergency custody request in front of another judge, the judges may not treat the situation the same. The protective order judge may rule that the matter is a family law situation and dismiss the protective order, but the protective order judge may also keep the protective order in place indefinitely. The family law judge could dismiss the emergency, but the protective order could still be in effect. Or, even if the protective order is dismissed, the family law judge could still sustain the emergency and keep the emergency order in place.

Budgeting Time and Resources for an Emergency

Emergency custody motions are extraordinarily time-consuming. If a child in your family is in need of emergency intervention, then all other work must be set aside temporarily to address the situation. Your lawyer will focus only on your emergency to make sure that the facts are accurately set out in the motion and that the paperwork is correctly put together on a “rush basis.” When you take the emergency to the courthouse, the judge will often interrupt trial or their other business to review the emergency motion. If the emergency is granted, the work has just begun. Many people make the mistake of thinking that when the emergency order is granted, they can take their foot off the gas. That is not the case. When an emergency is granted, a “show cause hearing” is scheduled just a few days later. The show cause hearing is a mini-trial, like a temporary order in a divorce or paternity case. This means that witnesses may need to be subpoenaed and you and your witnesses will need to prepare for an intense, demanding, high-stakes hearing. You cannot take it for granted that because the judge granted the emergency initially, based on your paperwork, that the judge will still award you emergency custody at the hearing. At the show cause hearing, the other side gets to appear and give testimony and present witnesses and evidence to show that there is not an emergency. No matter the outcome of the show cause hearing, there is still a great deal of work to do. If you prevail at the show cause hearing and the emergency order remains in effect, the other side will receive instructions from the judge about what they need to do to fix the situation. If the judge vacates the emergency order at the show cause hearing, your case is not necessarily over. Just because there is not an “emergency,” it does not mean that the judge many not modify custody or visitation at a final modification trial weeks or months later. The emergency custody process requires many resources, including attorney fees, time, and attention.

Sometimes emergencies happen, and the courthouse is closed. Courts are only open Monday through Friday, from 8:30 to 5 pm. When a parent has good cause to believe that their child is a victim of abuse or neglect or suffering from the effects of domestic violence in the other parent’s home, visitation may be withheld. This is a very short-term, temporary solution, meaning that a parent with this kind of information must take legal action as soon as possible, rather than simply withhold visitation indefinitely.

If you have been falsely accused and someone has obtained emergency custody of your child, you need a courtroom trial lawyer who has experience in child custody emergencies, parental rights and criminal defense trials. Our law firm is one of the very few law firms that handle both family law and criminal defense cases. You may be facing an emergency child custody case in family court, a protective order in protective order court, and investigations by DHS and law enforcement. The stress is compounded by the reality that your contact with your child will be very limited, and sometimes nonexistent until you go to court. You cannot take anything for granted. You must prepare with your lawyer for the hearing as if it is a full trial because the judge has already determined, based on one-sided information, that your child is in a dangerous situation.

Attorney Fees in Protective Orders and Emergency Child Custody Cases

In protective order cases, the law says that if the petitioner prevails and obtains a protective order, the judge can award the petitioner their attorney fees associated with bringing the protective order. It is almost impossible for the defendant to recover attorney fees from the petitioner if the defendant wins. If the defendant wins, the defendant has to show:

The petition for a protective order was filed frivolously, and
No victim exists

This is a very high standard, and it is extremely rare to see defendants obtain attorney fees in protective order cases. It is very common to see petitioners obtain attorney fees in protective order cases.

In emergency custody cases, the law says that if any relevant information provided to the court which the court relied on to make its emergency custody decision turns out to be false, the court shall assess against the person who brought the emergency all attorney fees and costs incurred as a result of the emergency custody hearing. Even though this is the law, it is rare to see an award of attorney fees and costs awarded against the person who brought the emergency custody motion, even when most or all of the allegations in the emergency motion can be disproven.

How We Can Help You With Emergency Child Custody Cases

Our law firm has special skills for these situations. Many attorneys can tell you the law about emergencies, but few have a real strategy for the courtroom. Whether we are seeking emergency custody or contesting a false or exaggerated claim, our procedure for handling cases is a product of our skills, training and experience. If your parental rights have been impacted by an emergency custody order, you need a lawyer who can advise you about family law and criminal law. We can help you prepare to testify for these hearings so you can be prepared to handle the stress and anxiety of testifying and present your evidence in an effective, credible way.

Can a Father Obtain Custody of a Child if the Mother is a Fit Parent?

Yes. A father can obtain custody, and a mother can lose custody, even if both parents are fit parents.

There are many myths and misconceptions about child custody. Here is a short list:

Mothers will have an advantage in a custody case, especially if the child is a toddler or younger
Mothers cannot lose custody unless they are found to be “unfit”
Fathers will likely have alternating weekends or some form of parenting time (visitation) that is less than the mother’s time
Mothers will not have to pay child support
Only the noncustodial parent will have to pay child support – the custodial parent cannot be ordered to pay child support

What Should I Do When the Other Side Has Not Produced Their Required Information?

We Identify Necessary Evidence Early On

We stress the importance of information-gathering at the onset of our work in every case. We have found that proactively gathering and organizing information on our own, without a court order or a request by anyone, helps us have superior case analysis. Early information-gathering gives our clients an advantage for identifying and requesting more data, settlement offers and negotiation, and trial preparation. In many cases, we are able to obtain very favorable settlements or favorable court rulings based solely on the hard work we do with our clients by organizing our evidence as soon as possible. Our attorneys have taught these concepts to other attorneys due to our insight and perspective into the trial preparation process.

Sometimes, We Have To Push The Other Side To Produce Evidence

However, there are some cases where we need information from someone else: either the opposing party or a third party. In many cases, the opposing party does not produce needed material, even when they are legally required to do so. Often, we can get the judge involved and force them to produce because we can show that we have clean hands and have produced everything while they are obstructing progress in the case through bad behavior. Involving the judge takes time and can cause case delays, so in every circumstance, we try to pause and ask, “How bad do we really need this?” to evaluate whether the cost of pursuing the information will outweigh the benefit.

You May Be Temporarily Inconvenienced Due To The Other Side’s Delay

There are circumstances where we should stop case progress and even wait to have a hearing until the other side has appropriately participated in the exchange of information. Most of those situations are in cases where the other side is making a false or exaggerated claim and refusing to produce any evidence pertaining to their claim. The most difficult of those circumstances is when our client lives in another state or country. We have had clients make plans to travel from long distances for hearings, only to arrive and learn that the opposing party and their lawyer have been misleading about their evidence. Unfortunately, if we choose to proceed with a hearing in those cases, the other side will sit on the witness stand and offer bad evidence because they know they did not produce the requested evidence that would show that they are wrong.

Family law is notorious for bad behavior. Your opponent may be willing to see what they can get away with simply to run up your costs of preparation and travel to hearings that will be delayed due to their misconduct. You should work with your attorney to assess whether you are ready to have the hearing with what you have or if you should wait and work with the judge to force the other side to produce evidence. If you proceed with the hearing without everything you need, you may receive an unfavorable ruling from the judge simply because you did not have the information the other side should have produced.

Premarital Agreements

Why Should I Have a Prenuptial Agreement if I’m Not a Millionaire?

Unfortunately, if you are getting married, the odds of divorce are high. The current marriage rate is 6.1 per 1,000, and the divorce rate is 2.7 per 1,000. Over 20 percent of first marriages end in divorce within five years, and nearly half of marriages dissolve by the 20-year mark. No matter your reason for marriage, your philosophy, or your desire, you should recognize going into a marriage that if your spouse later requests a divorce, you will not be able to fully control the situation at that time.

A Prenuptial Agreement Can Improve The Rules For Divorce

However, you can control the situation to a degree if you take action before your marriage. With a prenuptial agreement, you can define the rules for divorce and remove some of the risks, uncertainty, and expenses associated with a divorce. Oklahoma has default rules that apply to divorces with no prenuptial agreement. For example, in “equitable distribution” states such as Oklahoma, the standard for property division is what is “fair,” not necessarily 50-50. In some divorces where there was no agreement before the marriage, people spend tens of thousands of dollars for their attorneys to fight about whether the division of property in their divorce will be equal or not. You can eliminate that fight with a prenuptial agreement. You may define your terms for spousal support: you may agree that neither of you may ever claim spousal support from the other, or you may implement a calculation or tiered approach to remove discretion from a judge in the future. You may define the standards for determining what is separate property and marital property, and you may even require each side to bear their attorney fees in the event of a divorce.

A prenuptial agreement is a risk management vehicle. Paying to address foreseeable issues can forestall extreme monetary expense and the emotional toll accompanying divorce proceedings that do not have such certainty. Although all risk and uncertainty cannot be eliminated, a well-written prenuptial agreement can save tens and even hundreds of thousands of dollars in exposure to spousal support, attorney fees, and invasion of what you believe to be premarital or gifted separate property.

As you can see, you do not need to be a millionaire or even have a lot of income or property for a prenuptial agreement to make sense. If you are getting married, you likely assume that the two of you will make more money as time goes on and that the two of you will accumulate more property over time as well. A prenuptial agreement does not have to be onerous or unfair to one side, and it can be mutually beneficial for each person to know what the terms will be if the marriage does not work out.

A Prenuptial Agreement Can Protect Your Children’s Estate

When a married person dies, their spouse takes at least 1/3rd of the deceased spouse’s estate. This is true whether there is a will or not. Even if you have a will providing for all of your property to go to your children, if you are married when you die, your spouse can claim a substantial part of your estate, no matter what your will says. The only exception to this rule is for a prenuptial agreement making some other type of designation for the property. Even though the law provides that a surviving spouse is entitled to part of the deceased spouse’s estate, the surviving spouse may not take more from the estate than what is provided in a valid prenuptial agreement. As you can see, if you have children from prior relationships and wish to set aside your estate for them, a prenuptial agreement can play an essential role in your estate planning and even be more powerful than a will.

When Will My Paperwork Be Done?

To finalize your case, the court order will have to be created by one of the attorneys. Whether your case is resolved through a private settlement or at a trial, the attorneys are responsible for preparing the paperwork rather than the mediator or the judge.

This is a problem in most cases because attorneys are both busy and great procrastinators. Divorce decrees and other orders have complex elements and require close attention to detail. For many lawyers, it is easier to put off drafting the papers and work on other projects, and many times, they will be granted a pass by the judge for many weeks. For cases resolved by agreement, delay can impact the deal as people start to re-think and second-guess the terms of their agreement over time. Settlements often fall apart for no other reason than the attorneys taking too long to type the court order.

We solved this problem. In 2021, we acquired powerful technology that includes sophisticated, fast document generation. We can generate final documents so quickly that we prepare the final court orders at your mediation session rather than weeks afterward. Our clients have an advantage in negotiation because we are able to capture agreements on-site and make the terms binding on both parties.

Every case is different, and many decrees and final orders contain provisions unique to the specific matter. Even so, our document-generation software allows us to create the standard parts of your documents speedily and easily add the custom terms and language necessary for your case.

During Our Marriage, My Spouse Started a Business. Now We’re Divorcing. My Name Isn’t on the Business. Do I Have a Claim?

Yes. Property acquired during the marriage is presumed to have been jointly acquired, no matter how it is titled (whose name is on it). The definition of marital property is so broad that unvested stock options acquired by one spouse during the marriage have been determined to be divisible as marital property.

The standard for defining marital property, which may be divided, is:

It is a valuable right that has been purchased through joint efforts of the spouses to the extent that it has been acquired or enhanced during the marriage, and, as such, becomes jointly acquired property during the marriage.

Business and asset valuation is an important part of divorce cases to ensure that each spouse obtains their fair share of marital property value. Even when a property is separate – a property that was owned by one spouse prior to the marriage – in certain circumstances, the non-titled spouse may have a claim to a part of the increase in value in the owning spouse’s separate property during the marriage. This is a common issue with deferred compensation plans, such as pensions and 401(k)s, when one spouse had an interest in the deferred compensation plan prior to the marriage and the plan increased in value during the marriage.

Should I Have a Prenuptial Agreement? I Recently Became Engaged. We Are Each Employed and We Have Some Assets, but Neither of Us

A prenuptial agreement, called an “antenuptial agreement” by some in Oklahoma, is a powerful tool for any couple who is about to be married, even if neither is a millionaire. Once signed, prenuptial agreements set the terms for support and property division in the event of death or divorce. As prenuptial agreements are almost impossible to set aside, it is important for each side to have skilled, independent legal advice and representation during the negotiation and drafting process.

What A Prenuptial Agreement Does

Prenuptial agreements have been around for thousands of years. A prenuptial agreement enables a couple contemplating marriage to define their expectations for the division of property and payment of support in the event of divorce. Prenuptial agreements also affect the disposition of property in the event of the death of one of the spouses, making the prenuptial agreement an estate-planning document. Once signed, a valid prenuptial agreement deviates from defaults set by law and alters the rights of the spouses. For example, a prenuptial agreement could say that, no matter what happens in the marriage, neither side will have a claim to support alimony. Prenuptial agreements have special favor in the eyes of the law and the courts, so, if prepared properly, a prenuptial agreement may be impossible to set aside. Prenuptial agreements are serious decisions and should not be entered into without much planning and thought and the advice of an experienced, specially-trained family law attorney.

The Prenuptial Agreement Process

Prenuptial agreements are enforceable so long as they are “fair, just, and reasonable.” The attitude of courts toward prenuptial agreements is favorable, as such agreements are said to foster marriage between a couple who might otherwise not marry and give both partners up front information about how the other’s property may be disposed of and thus eliminate unnecessary disputes and conflicts. If you wish to have a prenuptial agreement prior to marriage, then both of you will be best served if you are reach represented by your own attorney. This has at least two benefits: 1. Each of you will have independent legal advice and the ability to ask questions and obtain information privately, and 2. Later, it will eliminate the ability of one side to claim, “I didn’t have counsel – I didn’t know what I was doing.” Each side will be best served by keeping a copy of all correspondence between the lawyers through the drafting and negotiating process, as the communication may be useful later in demonstrating that each side was being served by their attorney. Each side should make full disclosure of his and her worth. This is often accomplished by a list of assets with values. The list should be a part of a conversation between the couple as the wedding and the prenuptial agreement is discussed, as it is important that in addition to the list, each side has generally accurate knowledge of the other’s worth. It helps if the correspondence between the attorneys reflects the transmittal of this information during the drafting and negotiation process, so neither side can later claim that they never actually saw or had access to the information. Prenuptial agreements take time to negotiate, prepare, and sign. Springing the idea of a prenuptial agreement just before exchanging vows raises many questions. Most attorneys will be uncomfortable with a prenuptial agreement proposal mere days before a wedding. If you desire a prenuptial agreement, you should discuss it with your partner months before your wedding takes place.

Challenging A Prenuptial Agreement

Prenuptial agreements are very difficult to challenge. As Oklahoma law has developed over time, our appellate courts have addressed a variety of situations. Prenuptial agreements may be set aside based on fraud or duress, both of which are extremely difficult claims to prove. However, if you are going through a divorce and your prenuptial agreement has a potential weakness, you may be able to negotiate more favorable terms if your spouse is not willing to take on the expense and risk of a hearing to challenge the prenuptial agreement.

Protective Orders

My Ex Filed a Protective Order Against Me. I Didn’t Do What I’m Accused of, but I Don’t Want to Be Around Them. Should I Care?

Protective orders are some of the least understood, most abused legal procedures. One possible reason for this is that protective orders are very easy to obtain. Anyone who wants to file a protective order can go to a police station or the courthouse and, without the assistance of a lawyer, write out any accusation against anyone and obtain a protective order. Another possible reason that protective orders are misunderstood and abused is that there are generally no consequences for a person who files a false or exaggerated protective order. The law prohibits the judge from assessing attorney fees against the petitioner unless the judge finds that the protective order was “frivolous,” which is a very rare finding. Because protective orders are so easily obtained and there are almost no consequences for overstating or misstating facts, every day courtrooms are filled with protective order petitioners and defendants who are not represented by counsel. This is a mistake for each side. Even though the protective order is easy to get initially, at the hearing, courtroom rules of evidence and procedure apply. This means a petitioner who needs a protective order and is unrepresented may have difficulty obtaining a protective order due to being unprepared to present their evidence. It also means that a defendant who is unrepresented and falsely accused may end up with a life-changing permanent protective order against them, impacting their job, their hobbies, and their parental rights. Federal law prohibits protective order defendants from possessing firearms or ammunition, even during the temporary stage before the defendant has ever had a chance to present his or her side of the case to the judge. The law says that if a protective order has been issued against someone who is a parent, that parent’s time with his or her children must now be supervised – even if the person who filed the protective order is not the other parent, and even if the allegations do not involve anything to do with children. Many professions do not permit their employees or licensees to work if a protective order shows up on a background check. It is illegal for a parent to file for a protective order simply to obtain an advantage in their own custody case. Recently, Oklahoma law has developed to assure each side of a protective order the ability to request “discovery” from the other side to obtain information related to the allegations in the protective order case. For all these reasons and more, if you are involved in a protective order case, you need the advice and representation of a skilled courtroom trial lawyer.

General

Why Should I Hire Your Law Firm?

Choosing your attorney for any legal situation is the single most important decision you can make to affect the outcome of your case. There is much conflicting information about attorneys that can make the choice very difficult. The three most important criteria for choosing an attorney are:

Is the attorney an expert in this area of law?
Do I trust the attorney and the advice I receive?
Can the attorney deliver results in the courtroom?

What you need to know about lawyers that no one else will tell you:

Law schools do not teach law students courtroom trial skills, even though trial skills are both teachable and learnable. Most people are shocked and have a hard time believing this, but it is true. Refusal to teach trial skills is a deliberate choice and a failure of American law schools.

A United States Supreme Court Justice went to England and observed their trial lawyers and was surprised at the quality and consistency of their work, especially compared to what he’d seen from American trial lawyers. He started a special committee in the 1970s to investigate why many American trial lawyers were so terrible. The committee found that it was primarily the fault of U.S. law schools: One hundred years prior, all the way back in 1870, Dean Langdell at Harvard Law School decided that skills training was unnecessary, then all the other law schools copied Harvard and eliminated any skills training.

The committee called this problem “Langdell’s disease.” Does that sound like a good thing?

Incredibly, today, nearly fifty years after that committee’s findings, nothing has changed. Law schools still do not tell incoming students or current students that they will not be taught meaningful skills. Law schools actually lie to their graduates and tell them that they are ready to try cases simply because they finished law school, even though they were taught no useful skills in law school.

Our attorneys have acquired courtroom trial skills. We did it after law school. We have spent more time and money on skills training after law school than what was spent on law school. That single factor is what separates us from every other law firm in Oklahoma. No other law firm in Oklahoma can match our commitment to continued professional development and stay on the cutting edge of trial skills and legal developments.

As a result of our ongoing skills training, we have codified, literally written down, our process for handling cases, preparing them for settlement, and taking them to trial. We focus on what matters, and no matter which attorney in the office is working with a client, the client receives a uniform experience because we have a written process that is based on and focused on obtaining the best result for the client.

Why hire a trial lawyer if you think your case will be resolved and settled by agreement?

The legal community is a small community. Most of us know each other. We definitely know who is capable of handling a case in trial and who is not. This does not justify underestimating any opponent, but some attorneys try bully tactics and try to take advantage of the other side if they do not believe the other side is willing or able to call their bluff and present the case well at trial. The Oklahoma legal community knows that we are not afraid of trial and that we are good at trial.

We settle cases, and we try cases. We settle cases for good outcomes for our clients because we prepare for trial. If the other side is unreasonable, uncooperative or a bully, we are able to keep moving the case forward with or without their participation because we know how to do it.

Family law is fact-specific. Judges have very broad discretion when making decisions about divorce or child custody cases. There is generally a great deal of distrust between divorcing spouses or opposing parents. False or exaggerated allegations are frequent in every kind of case. All this contributes to uncertainty. You may be on the way to a settlement – a complete agreement – then the other side hires a new lawyer and announces that all deals are off. By preparing for trial with a lawyer who knows how to try a case, you may still maximize your chance of a good settlement while remaining prepared for trial in the event a trial is necessary, even if you are not the one who made the trial necessary.

If you are interviewing with an attorney, ask the attorney about their skills training. Most attorneys will either mention their law school or they will talk about their experience. Ask yourself, how much does experience matter? Do you know of a mechanic who has been around for 20 years, but you would never take your car to them? Do you know of a restaurant that has been open for 20 years, but you would never eat there? Do you know of a hotel that has been open for 20 years, but you would never stay there? Experience has some value – you don’t want the lawyer to learn hard lessons at your expense – but there are plenty of “experienced” attorneys who have no idea what they’re doing in the courtroom. Ask the attorney about their process. Do they have a manual or a written procedure for how a case should be handled? Why not?

Our skills training includes:

National College of Criminal Defense for cross-examination
National Association of Criminal Defense Lawyers for cross-examination, jury selection and defending against sex crime allegations
Association of Family and Conciliation Courts for presenting mental health evidence for parents and children
American Academy of Matrimonial Lawyers for valuing businesses and scrutinizing financial records
National Institute for Trial Advocacy for depositions
Trial Lawyers College for jury selection
National Family Law Trial Institute for trying divorce and family law cases and for valuing businesses

We combine our trial skills with cutting-edge knowledge of the law applicable to family law and trial skills. Have you ever seen a photo of an attorney standing in front of a bunch of boring law books that all look the same? We have a real library full of books and DVDs to add to our knowledge and trial skills. We have DVDs to watch with our clients to help them prepare to testify in deposition and trial, and we have books that clients can borrow to read to learn how to testify well. Our work with the organizations listed above includes aggressive continuing education on state, national and international developments in trial philosophy and practice.

Your Lawyer is a Reflection of You

You hire a lawyer for legal advice and for representation and advocacy on your behalf. Your lawyer is an extension of yourself. When your lawyer speaks while working for you, the words of your lawyer are attributed to you. What your lawyer does for you and your situation will directly impact the outcome.

If you hire a lawyer for an appeal and the lawyer does not send the papers in at the right time or does not include the proper filing fee, you will lose your right to appeal, and you will not be able to get more time because your lawyer messed up.
If your lawyer does not make a proper objection at trial and the case is lost because of bad evidence, you will not be able to challenge the evidence on appeal because you claim that your lawyer made a mistake.
If your lawyer makes a poor, unplanned opening statement, the judge may enter judgment against you after the opening statement without even having a trial, and there will be nothing you can do about it.
If your “bulldog” lawyer is disrespectful to the judge and to the other lawyer and mistreats and bullies witnesses, the judge and the jury will view you with disdain, because your lawyer is behaving that way as your agent, and his sloppiness and unprofessionalism will be your sloppiness and unprofessionalism.

A good lawyer who works with you on identifying your goals and best outcomes can be a positive force for you in every aspect of your situation. A good lawyer who has training and experience can help you prepare for worst-case scenarios and can help you improve your situation. A good lawyer can be a representation of you at your very best while dealing with other people during negotiations, preparation, trial and appeal.

All this is why the Oklahoma Supreme Court said that lawyers are not interchangeable commodities. Your decision and choice of a lawyer will have a profound effect on the outcome of your situation. A good lawyer may have a higher rate than a poor lawyer, but a good, experienced lawyer may be more efficient and effective with your dollars than a lawyer who charges much less. It has been said that “Nothing is more expensive than a cheap lawyer.”

Find Out More

If you want to learn more, contact us to schedule a meeting. Our initial consultations are more than a meet-and-greet. We will listen to you about your situation and your goals, and we will start the discussion about making a winning plan.

What is a pretrial conference?

A pretrial conference is a special hearing for a case going to trial. Pretrial conferences are governed by Rule 5 of the Rules for District Courts of Oklahoma. Both sides must work together in the weeks before the pretrial conference to create a pretrial conference order. The pretrial conference order summarizes the issues of the case, lists each side’s witnesses and exhibits, and tells the judge how long the attorneys believe the trial will take. The pretrial conference order is a controlling document, meaning, absent very rare circumstances, neither side can add witnesses or exhibits once the order has been approved and signed by the judge. If one side does not appropriately participate in the pretrial conference, severe penalties can be imposed by the judge against the unprepared side. In most cases, the pretrial conference is the last hearing before trial. This means that all pending discovery and mediation should have already been completed before the conference. Even though a pretrial conference may only take a few minutes, the final pretrial conference and the pretrial order are very important.

What Type of Fee Arrangements Do You Offer?

We offer several types of fee arrangements for our services, depending on a number of factors:

Flat fees

We offer flat-fee arrangements for uncontested, agreed family law cases. For a single fee, we provide paperwork, compliance with local and state rules, and guidance through the process, including assistance with filing and processing final documents.

We also offer a flat fee for some criminal defense matters.

We do not offer flat fees for contested family law matters. If you are not sure that your family law case is uncontested, then we cannot offer you a flat-fee option.

Hourly billing

Most of our work is done on an hourly billing basis. Our hourly fee agreements are called “Evergreen” retainers, which means that the client agrees to pay and maintain a pre-determined amount with us throughout the course of our representation. We work on both uncontested and contested family law, civil, and criminal defense matters by billing for our time. You can read more about that billing process here: How we bill

Contingency fees

We offer contingency fee services in select civil justice cases wherein we are engaged to represent the plaintiff. In a contingency fee arrangement, our fee is a pre-determined percentage of the total recovery awarded to the client. If there is no recovery, there is no fee owed to us.

How Can I Use Text Messages as Evidence?

There are 300 million smartphone users in the United States alone. Text messaging is part of virtually every adult’s daily life. Because so much information is shared by text message, these messages can be critical evidence in lawsuits, including family law cases.

Written evidence has to be produced in a format that can be read by the judge and preserved by the court reporter. This means it is not enough to have your phone at the trial if you want to show a text message. You must have the text messages printed out or in a PDF file that can be stored on a USB flash drive (or both).

It is relatively easy on most cell phones to take a screenshot of anything appearing on the screen. However, this is one of the least desirable ways to share your text message evidence. Screenshots from some cell phones are very low resolution, which means that when the texts are printed on paper they are so grainy that they are illegible. Screenshots are also limited to what you can see on the screen, so you can only see a few messages for any given screenshot. Text messages require so much context that many times, the meaning of the texts in a screenshot cannot be fully understood from the screenshot alone. So you need to be able to produce all the text messages in a format that is easily readable and understood.

There are basically two types of cell phones: Androids and iPhones. Text messages on Androids can often be exported to PDF format using a relatively cheap application called Legal Text Collector. Text messages on iPhones may be exported to PDF using iMazing, which costs much more than the Android option.

Exporting the text messages is the first step, not the only step. Sometimes, the other side will try to deny that the texts are authentic or legitimate. You will need to disclose the text messages to the other side as soon as possible because if you wait till the last minute, there is a rule of evidence that allows evidence to be excluded if it is being used as part of an unfair surprise. With careful planning, you may be able to use the discovery process to force the other side to either admit that your texts are real or to show any evidence that they have to support their claim that the texts are less than genuine.

If you only use screenshots, your attorney may have a difficult time properly arranging the screenshots in chronological order, and your use of screenshots may help the other side claim that the screenshots are missing important parts. There is a rule of evidence that if important context is missing, the messages may be excluded because they do not accurately tell the whole story.

So, back up your cell phones regularly to the cloud and to a computer, and keep your old cell phones when you transition to a newer model to preserve your evidence. Do not alter or delete messages from your message history, as a side-by-side comparison of the messages will cast doubt on the legitimacy of the evidence. And export your text messages into a good, readable format so that any reader can understand the important information and messages that were exchanged.

These concepts apply to other evidence. If you have the option to download PDF bank statements or take a screenshot from your phone, download the PDF. Even if the screenshot captured all the important information, it gives the other side license to complain about not having “the whole thing.” Those complaints can cause unnecessary delays in obtaining justice. It is worth the extra effort for you to obtain complete PDF records when you can.

I Didn’t Do Anything Wrong. Why Should I Spend Time and Money With a Lawyer?

A legal dispute involves at least two adversaries. A pure defensive approach only gives the factfinder one option: should I decide for the offense or not? This carries great risk because if your opponent proves their case at a minimal level, the judge or the jury has no option but to decide in their favor. Developing a plan, crafting a story and making your own request for an outcome creates a second option for the decisionmaker to choose.

Planning is a critical element of legal advice and strategy. An example of this concept comes from criminal defense strategy. In criminal cases in the United States, the government must prove each element of the criminal charge beyond a reasonable doubt. If the government fails to prove just one element, then their case fails, and the defendant must be acquitted. The defendant does not carry or share the burden of proof and has no obligation to speak. Even in this lopsided scenario, a successful defense strategy must include careful strategy, planning and storytelling to give the jury a reason to acquit, even though the defense has no legal burden of proof.

Our founding fathers understood this principle. George Washington said, “The best defense is a good offense.” Benjamin Franklin said, “By failing to prepare, you are preparing to fail.” In any legal dispute, you should:

Do a cost-benefit analysis. Planning consumes time and energy, and it can be expensive. The expense must be contrasted against your potential exposure in the event of a loss.
Make a plan. Gather and organize your evidence to tell your story and show the reality of the situation, in contrast to the other side’s false or exaggerated claims.
Take nothing for granted. Do not assume that the factfinder will see through the other side’s allegations. Rather than take an inactive or defensive approach of “Can they prove it?” you can work with a qualified trial lawyer to make a strong case.

When Will My Case Finally Be Over?

The simplest way to completely resolve a legal dispute is to reach an agreement. Opposing parties to a lawsuit are permitted, within certain limits, to reach settlement agreements resolving all issues in the dispute. However, even when legal matters are resolved by agreement, there still may be some opportunity for one side or the other to change their mind.

Motion for New Trial

When legal matters are decided by a judge or jury, either party may file a motion for a new trial within 10 days of the filing of the judgment. The grounds for new trial are limited to:

1. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial;

2. Misconduct of the jury or a prevailing party;

3. Accident or surprise, which ordinary prudence could not have guarded against;

4. Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice;

5. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property;

6. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law;

7. Newly discovered evidence, material for the party applying, which could not, with reasonable diligence, have been discovered and produced at the trial;

8. Error of law occurring at the trial, and objected to by the party making the application; or

9. When, without the fault of the complaining party, it becomes impossible to prepare a record for an appeal.

Additionally, if a litigant files a motion for a new trial and the motion is denied, then any appeal from the matter will be limited to the issues raised in the motion for a new trial. For example, a litigant may believe that there were three big errors in the trial, but their motion for a new trial only addresses one of the errors. If the trial court denies the motion for a new trial, any appeal will be limited to the issue raised in the motion, and they will be prohibited from complaining on appeal about the two errors that they did not mention in the motion for a new trial. Because of this risk of waiver, motions for new trial require careful thought and strategy.

Modifying, Vacating Or Correcting An Order

Within 30 days of filing a judgment, the judge may vacate or modify the judgment for almost any reason. This is called “term-time power,” and it applies to both settlement agreements and trial outcomes. If either side wishes to appeal, they must file the appeal in this 30 day window. If either side desires to request compensation for their attorney fees incurred in the litigation, they must file their attorney fee request in this 30 day window. In other words, there is really no finality for up to 30 days after filing of a judgment, including things like divorce decrees.

After 30 days pass from the date the judgment was filed, the rules for vacating or modifying judgments change. The procedure is different, and the grounds for vacation or modification of a judgment after 30 days are limited to:

1. By granting a new trial for the cause;

2. Where the defendant had no actual notice of the pendency of the action at the time of the filing of the judgment or order;

3. For mistake, neglect, or omission of the clerk or irregularity in obtaining a judgment or order;

4. For fraud, practiced by the successful party, in obtaining a judgment or order;

5. For erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings;

6. For the death of one of the parties before the judgment in the action;

7. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending;

8. For errors in a judgment, shown by an infant in twelve (12) months after arriving at full age; or

9. For taking judgments upon warrants of attorney for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.

If fraud is claimed, the petition to vacate claiming fraud must be filed within 2 years of the filing of the judgment.

Certificate of Mailing

Simply filing a judgment does not start the clock for the 10-day, 30-day and 2-year deadlines. In addition to filing the judgment, the person filing the judgment must also certify in writing that the filed judgment is being mailed to the opposing party. Then they must actually mail the filed judgment the same day to the opposing party. If the certificate of mailing is overlooked and not filed, that can mean that the finality timeline never started, and the opposing party may file a simple motion to have the case reopened. In cases resolved by agreement, this rule can be treated a little differently, so each side is required to keep an eye on the court docket to see when the judgment was filed in order to calculate their 30-day window.

Should I Gather Information Before a Case is Filed or Wait Until After Filing to Do Discovery?

You should try to gather as much information as possible before a lawsuit is filed. During a marriage, spouses generally have equal rights to marital property. Each spouse has equal access to certain financial information, including joint income tax returns and joint bank account statements. If you live in a marital home, even if your name is not on the deed, it may be very easy for you to grant access to an appraiser to value the residence before filing. When a case is filed, things change. In divorces, when a case is filed, a special court order called an “Automatic Temporary Injunction” goes into effect. This injunction and the separations and actions that begin when a case is filed can limit your access to information. While your attorney can engage in a process called discovery to ask the other side to respond to questions, gamesmanship is common, and their responses will likely be filtered by an attorney who sees their job as obstructing access to information.

In some circumstances, it is simply not possible to gather all the information that is needed before filing. You should still work hard to obtain everything you can on your own because knowing what you have makes it easier to identify the things that you do not have and make special requests for discovery.

Every family law matter has its own unique informational needs. We have put together a list of information as a starting point to help people think through the needs of their situation and make a strong case.

What is a “Scheduling Order?”

Virtually all lawsuits, including criminal cases, have a series of stages: investigative work that may be done before the case is filed, filing and serving the case, exchanging initial disclosures of evidence, discovery, pretrial motions and hearings, a final pretrial conference, trial, and possibly appeal. The length of time that each stage may take in any given case can vary depending on the circumstances. In many cases, one side wishes to move to trial quickly, and the other side wishes to delay trial, so there is tension between the adversaries in each stage of the case about whether and when to move on to the next phase of the case. To make sure that each side has enough time to complete the necessary work for each stage and ensure that neither side drags out the stages, judges can enter a special order called a “scheduling order.”

A scheduling order establishes firm deadlines for the completion of certain tasks by each side of a case. In Oklahoma state courts, scheduling orders are defined by a special rule called Rule 5 of Rules for District Courts of Oklahoma. Rule 5 explains the purposes of these orders and even includes a standard form. Either side may request a scheduling order, or the judge may enter one even if neither side has requested it. In federal court, it is common for judges to enter scheduling orders at the beginning of a case.

Scheduling Conferences

A scheduling conference is a court hearing for the lawyers to present their proposed deadlines for each stage of the case. Scheduling conferences are generally uneventful and often unnecessary because in most cases the lawyers can agree to proposed deadlines between themselves without going to court and simply present an agreed scheduling order to the judge for approval. If the lawyers cannot agree on deadlines, then a scheduling conference is a place where the lawyers can make an argument to the judge about how much time they need for any particular part of the case.

Pros and Cons of Scheduling Orders

A scheduling order can help ensure that a case moves forward, especially when the other side has an incentive to delay the case and try to avoid trial. Although the deadlines in a scheduling order are not supposed to be easily changed, some judges will allow the attorneys to essentially ignore the deadlines, while other judges will take a very rigid approach to the deadlines. The deadlines in scheduling orders must be treated seriously, even though the approach to scheduling orders varies by judge.

Sometimes, a deadline in a scheduling order cannot be met. In most circumstances, the lawyers can agree to move the deadline and present an agreement to the court to reschedule the deadline. There are different legal standards for moving a scheduling order deadline before the deadline has passed versus when the deadline has already passed. In other words, if the discovery was ordered to be completed by a certain date and one side needs more time, it is much easier for them to move the deadline if they ask for more time before the deadline expires as opposed to waiting until after the deadline passes then asking for more time. If a deadline is approaching that cannot be met, the problem must be addressed right away.

Our Approach To Scheduling Conferences And Scheduling Orders

Our process for handling cases is designed to ensure that our cases are well put together and ready for a trial as soon as possible. In many cases we do not request a scheduling order because we have worked up the case well enough that the necessary stages are evident and obvious to all the participants. However, sometimes we ask for a scheduling order when we anticipate that the other side is going to play games to try to drag out a case. For instance, as part of our process, we generally include a packet of evidence, discovery requests and a settlement offer as part of the paperwork that the other side receives from us at the beginning of a case. By doing this work, we knock out several stages of the typical litigation process all at once.
Unfortunately, we have had cases where we gave out our evidence, issued discovery requests, received their responses and made a settlement offer. Then, when we requested a trial, the other side claimed for the first time that “discovery is not complete” and sent our client discovery requests, months after the case was initiated, and months after they should have already engaged in discovery.
A scheduling order can sometimes preempt and avoid bad behavior by requiring lawyers to issue their discovery early in the case, preventing them from trying to restart stages of litigation to avoid trial.

We ask our clients to attend every hearing in their matter when possible so they can fully participate and be informed about developments in their case. Although scheduling conferences are routine events that only take a few moments, we invite our clients to attend and hear the deadlines that are issued so that they understand the judge’s expectations for progress in their case.

Do I Need to Be Present for Court?

Yes. You should plan on appearing at every hearing in your case, even if you and your attorney expect very little to happen at a particular hearing.

There are several types of hearings where you may not say or do anything. The names for these types of hearings vary and range from: “status conferences,” “reviews,” “pretrial conferences,” and “scheduling conferences.” Even though you may not expect to testify or participate in one of these hearings, and even if the opposing counsel has told their client (your opposing party) that they do not need to appear, you should plan on being present. Judges have broad discretion in handling hearings, and a judge may decide they need information from you, or your lawyer may need your input on the spot about a decision that could affect some part of your case. By appearing, you show that you are actively involved and interested in the outcome of your case. You will be better informed about the status of the case, the demeanor and temperament of the judge, and the working relationships between the attorneys, the judge, and the court staff.

We recognize that life happens, and sometimes circumstances do not permit an appearance at every court date. We represent residents of other states and foreign nationals who cannot appear in person for routine status and scheduling conferences. However, if you think you may not be able to be present at court, you should let your attorney know in advance to discuss your options. Options may include a request for a continuance, or you may be able to appear by video or telephone. If you cannot participate and appear at a hearing, you should reach out to the law office after the hearing and ask what happened and if there is anything specific that you need to know or do.

Should I Destroy Evidence That May Be Harmful to My Case?

You should not delete or destroy evidence that may be material to a lawsuit, including a divorce, even if the evidence is bad for your case. The legal concept is called “spoliation.” Spoliation refers to:

the destruction,
the material alteration or
the failure to preserve for another’s use

evidence in a pending or reasonably foreseeable litigation. This rule may seem counterintuitive, but it is the law in Oklahoma and most states. There are several reasons why getting rid of evidence is a bad idea.

Destroying Evidence Is Illegal

You have a legal duty to preserve evidence related to your case, even if it is evidence that you may not want to use for your own claim or defense. If you delete or alter evidence, the judge may impose sanctions against you. You may be required to pay the other side’s attorney fees. The judge may impose an “adverse inference” against you, which means finding that the missing evidence would have been good for the other side and bad for you. The value of your legal claims may be diluted or dismissed altogether.

You Cannot Fully Predict What Evidence Will be Good or Bad for You

Many legal claims and lawsuits are based on human error or misconduct. Someone, possibly you, made a mistake. When it becomes clear that there was a misstep, it is a natural reaction to feel anxiety or even panic, and those feelings are detrimental to your judgment and decision-making ability.

If you make rash decisions and try to delete or manipulate evidence, you may actually make your situation much worse. For example, if you say something negative in an electronic message and then delete the message out of fear that it may be used against you, it is possible that the other side will claim that you said things much worse than what you actually said, and you will not have any proof to give context or to show that they are exaggerating. “Bad” evidence may end up proving something different than you may even be able to imagine. A traffic ticket for reckless driving could be good evidence to show where you were (and where you weren’t) at a specific time. You cannot fully predict the value or quality of your information, so you should preserve it to protect yourself.

A trial is about credibility. Judges and juries are constantly evaluating who they can trust. Witnesses and lawyers often lose credibility by making misstatements about collateral or side issues that don’t have anything to do with the critical issues in the case. Spoliation is one way that can happen. You could cause unnecessary harm to your legal position by simply failing to keep evidence about what happened.

How to Deal with Bad Evidence

Work with a qualified trial lawyer. Show them everything. Rules of confidentiality and privilege completely protect your conversations with your lawyer. Talk to your trial lawyer about your bad evidence. You may learn that what you perceive as harmful may be irrelevant, neutral, or even good evidence for your situation. By taking ownership of the evidence and addressing it appropriately, you may be able to give mitigating context for it while simultaneously enhancing your credibility for your case.

How Much Money Should I Have Set Aside for My Case?

Ideally, should have at minimum $20,000 cash at hand, and the best answer we can give you is $40,000 plus a full-time job. That’s in 2024 dollars, so add 15% for every year beyond 2024. Does every case cost $20,000? Absolutely not. And that’s good news for you because if your case resolves for $8,000, or even $5,000, the remainder will be much-needed money you get to keep. But if your ex is malicious, or an abuser, or a narcissist, or even if he’s none of those but hires one of the lawyers at a “big firm” who has to bill $40,000 per month just to pay their overhead and keep their job, then you will experience some real nonsense, and you will have to both keep up and push back. Even if you’re reasonable and have your act together, you’ll need your lawyer to address the motion practice and discovery, including depositions, to get you to a negotiating table or a courtroom where it matters. Having a job helps too – it means you have cash flow while your case is going on – and you’ll be productive, busy, and be able to address legal bills beyond the $10,000 or $20,000 budget if it comes to that. If you don’t have that kind of cash? There are options, including Affirm from LawPay.

How can I reduce my attorney fees?

There are several ways you can reduce their attorney fees. It is important to stay focused on the ultimate resolution of your case – the “big picture” – so you are not distracted by the many variables and unpredictable elements of a lawsuit that can be distracting.

Being proactive can help. As much as possible, you should gather any requested information in a timely manner and notify the firm when the information is ready.

Before each appointment, make an outline or list of the information you want to discuss with your attorney.

Work with your attorney to place a reasonable limit on what you want to accomplish in your case. Consider how you may compromise issues with the opposing party to avoid unnecessary hearings and conflicts when possible. Mediation can resolve issues that seem unresolvable if both parties are willing to compromise.

Consider private, individual counseling to discuss and address emotional nonlegal issues and anxiety associated with litigation. Lawsuits are stressful. Investing in psychological help is valuable, as you’ll generally be better able to cope with the stress of the case and recognize elements that are within your ability to control versus elements and things beyond your or your attorney’s control.

What is the procedure for a contempt charge?

Indirect contempt proceedings are unique creatures. They are neither civil nor criminal, yet they carry important features of each process. In Oklahoma family law cases, contempt charges often run parallel or are integrated into the civil aspect of the family law case in which the contempt charge is grounded, and the Discovery Code is typically understood as incorporated into the charge of contempt. In addition, the accused must be informed of their rights and the charge against them and may be entitled to court-appointed counsel. The accused has the right to trial by jury. A contempt charge carries up to six months in the county jail and a $500 fine.

There are two types of indirect contempt charges, each carrying a heightened burden of proof. The United States Supreme Court case of Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, is controlling for contempt charges. A charge of indirect contempt is either remedial, designed to coerce compliance with a court order, or penal, designed to punish noncompliance with a court order. The burden of proof at trial varies depending on the nature and purpose of the contempt charge. For a remedial charge, the burden of proof is the clear and convincing standard, and the contemnor must be given an opportunity to purge, or correct, the contempt charge. A punitive charge is designed solely to punish noncompliance, and it carries the full burden of proof beyond a reasonable doubt associated with criminal charges, due to the potential for jail time. The nature of the proceeding is determined by the relief sought by the moving party.

A case of indirect contempt begins by filing a charging document, usually called an application for citation for indirect contempt of court, specifically setting out the allegations against the party charged with contempt. A contempt charge concerning support should include a request to update the amount due throughout the litigation; otherwise, the contempt charge will only concern the amount of support that is expressly identified in the complaint. The citation will summarize the allegations, set the date, time and place for arraignment, and include a warning that failure to appear at the arraignment could result in a bench warrant. The party charged with contempt must be served with the application and the citation unless they are represented by counsel.

The initial appearance by the party accused of contempt is called an arraignment, just like a criminal case, and at that time, they have the right to know the specific allegations against them, the right to an attorney, and the right to demand trial by jury. In most circumstances, the parties will be able to conduct discovery prior to trial.

In many contempt charges, it is obvious that the court order was not followed. The issue for trial is one of willfulness, meaning either that the party charged with contempt could have complied with the court order but did not, that circumstances beyond either party’s control made compliance not possible, or that the noncompliant party did not intend to violate the order. Willfulness, or the lack thereof, is often demonstrated through circumstantial and comparative evidence. If one claims in their defense that they did not pay an ordered obligation because they could not pay it, the challenge will be to determine whether they had funds, whether they made other purchases, and what level of effort they made to acquire funds or to pay the obligation. Both parties should explore these questions; however, the inability to comply with a payment order is an affirmative defense for the accused rather than an element of contempt to be proven by the accuser.

Guardianships

How Can I Get Help for Children in My Extended Family Who Aren’t Being Properly Cared for?

Guardianship may be an option for minor children who do not have proper parental care. Guardianships are usually necessary in unfortunate circumstances, including the death or incarceration of both parents or abandonment of the children by the parents. To obtain guardianship of a minor child in a situation where the parent does not agree that he or she is unfit, the potential guardian must prove that the parent is “unfit.” The United States and Oklahoma Constitution provide strong protections for parental rights, so a person seeking guardianship of a minor over the objection of the child’s parents must have strong evidence that the parents are unfit to have custody and care of children. This often means that the parent is guilty of abuse or neglect. Prospective guardians must pass stringent, thorough background checks and investigations to demonstrate that they are qualified to have guardianship of children. While many guardianships are resolved by agreement, in many circumstances, they are not agreed, so each involved individual will need strong legal counsel to protect their rights and the interests of the children. Because so many guardianships concern parental fitness, many times there are other legal considerations and rights at issue. For example, if family members do not act quickly enough to intervene for their relative children, the state may remove the children and place them in foster care. In other cases, guardianship can be a predicate to the establishment of grandparent visitation rights. Guardians generally have the responsibility for managing the child’s property and income, such as Social Security survivors or disability benefits. Individuals involved in or associated with guardianship cases will benefit from the analysis and advice of an experienced, knowledgeable family lawyer.

Spousal Support/Alimony

How Can I Assess My Alimony Claim?

In the most general sense, support alimony in Oklahoma is about need and ability to pay. Spousal support alimony may be awarded if the requesting spouse demonstrates both: 1. A “need” for alimony and 2. That the other spouse has the “ability to pay” support. Spousal support alimony is a “transitional” concept, meaning spousal support alimony is generally supposed to be calculated to assist the spouse who needs the support to “transition” into post-marital life. Historically, alimony was only awarded to females. The United States Supreme Court determined that considering gender for alimony claims violates the Equal Protection provision of the United States Constitution. Now, either spouse may make a claim for alimony, regardless of gender. Oklahoma law does not give us a method or mathematical formula for calculating support alimony. Alimony is fact-sensitive and depends upon the application of a number of factors, including:

The length of the marriage
The age of each spouse
The earning and income-producing capacity of each spouse
The physical condition of each spouse
The financial means of each spouse
The mode, or standard of living to which each spouse became accustomed during the marriage
The amount of income-producing property awarded to each spouse
The anticipated length of time it will take for the recipient to transition to the workforce
The recipient’s cost of living during the transition or adjustment period
The conduct of the parties

International Legal Representation

I’m not a U.S. citizen, but I’m involved in a family law dispute in your state. What should I do?

You need legal representation in the United States. You are permitted to hire U.S. legal counsel to advocate for your interests, regardless of your residency or citizenship status. If you live outside of the U.S., you need a lawyer who has special skills for cross-border work. You may also need a lawyer in your jurisdiction. If that’s the case, our law firm is set up to work alongside your local lawyer. We have experience with the logistical and practical issues associated with international cases. Our attorneys frequently work with clients and their attorneys and advisors worldwide. We are highly responsive and available for videoconferencing at times that make sense for your time zone, in addition to our regular business hours. Our attorneys will communicate with you about your case’s legal and practical aspects, and we will explain your options in detail so that you understand your situation. If possible, set yourself up to communicate effectively with your lawyer. Make sure you have access to a private email account and keep your notification settings on so that you can receive all electronic correspondence about your matter. You may need to participate in court hearings by video, so you should up free accounts across various videoconferencing platforms, including Zoom, Skype, and Microsoft Teams. You should also work with your local financial institution to ensure that you can send and receive money by wire for your case’s financial needs and requirements. You can be proud of your culture and heritage without fear of a U.S. court being biased against you. Your status as a foreign national may not be as relevant as you think for a U.S. family law case. Generally, family law courts are not permitted to use your citizenship as a factor against you, unless you are determined to be a flight risk. It is common for U.S. citizen litigants to falsely claim that a foreign national is a flight risk to try to create a bias in the court’s mind; however, that strategy can backfire. If your opposing party makes an unfounded flight risk claim, it could damage their credibility and work to your advantage during the legal process. As members of the U.S. State Department’s Office of Children’s Issues Attorney Network, our office has assisted foreign nationals with the return of their children to their home country. We are pleased to represent the interests of non-U.S. citizens in various legal matters in our jurisdictions.

Which parent may obtain a passport for our minor child?

Issuance of a passport to a minor child is a matter governed by federal law. State trial courts have the authority and ability to enter orders permitting or restricting the travel of a minor child and obtaining a passport by either parent. Generally, both parents or legal guardians of a child under the age of 16 must sign a passport application for a minor child. There are exceptions to this rule, including a birth certificate listing only one parent, a court order giving one parent sole custody of the child, or a court order that expressly authorizes one parent to apply for a child’s passport without the involvement of the other parent. It is a federal crime under the International Parental Kidnapping Crime Act for one parent to take a child outside of the country against the other parent’s wishes. However, the United States does not have exit controls at its borders. Once a passport has been issued, the Department of State will not revoke it. It may be difficult to prevent a child’s international travel once a passport is issued for the child. If your minor child may travel internationally, addressing international travel protocol in your child custody order is important. Our law firm has proprietary language for special circumstances to address passport application, use, and storage, and an express provision that the terms of The Hague Abduction Convention apply if there is an abduction or wrongful retention.

May I travel outside of the state with my child during my divorce?

When the divorce process begins, a special court order goes into effect. The Automatic Temporary Injunction was designed to protect each spouse’s rights pending a court order, and it includes some provisions concerning minor children. Several parts of the Automatic Temporary Injunction could impact travel with your children:

1. Neither parent may disrupt or withdraw their children from an educational facility and programs where the children historically have been enrolled, or day care,

2. Neither parent may hide the children from the other parent, and

3. Neither parent may take the children outside of the State of Oklahoma, directly or in concert with others, except for vacations of two (2) weeks or less duration, without the prior written consent of the other parent, which shall not be unreasonably withheld.

This tells us that communication is critical. Even if you have longstanding vacation plans of less than two weeks in duration, it is important to share the itinerary and schedule with the other parent to avoid any misunderstanding or claim that the children are being hidden or that their education is being disrupted. In some circumstances, getting permission from your assigned judge to travel out of state with your child while your divorce is pending may be appropriate.

Child Support

In a Shared Parenting Situation, Which Parent Pays Child Support?

Child support is both income-based and time-based. Income for child support is defined as a parent’s gross (pre-tax) income per month, while parenting time is measured by each parent’s number of overnights with a child over the course of a year. A year is 365 days, so ½ of a year is 182.5. When both parents have equal time with a child as measured over a year (one parent has 182 overnights and the other parent has 183 overnights) the child support obligor will generally be the parent having greater gross monthly income than the other parent. Depending on each parent’s income, a parent can have up to 204 overnights with a child during a year (with the other parent only having 161 overnights) while still being the child support obligor. As child support is a function of income and child support, legal custody is irrelevant for child support calculation purposes. Thus, depending on income and the parenting schedule, it is possible for an individual to be the sole custodial parent with the most annual parenting time, yet still be the child support payor. Child support is calculated based on gross income yet paid out of net income. It is not tax-deductible, and it is not taxable income for the recipient. As a result, child support often results in a significant redistribution of discretionary income from one parent to another.

Can We Waive Child Support if We Agree on Everything?

Every order that deals with custody and visitation must also deal with child support. The order must have a child support calculation attached. Parents cannot “waive” child support. Child support is a mathematical calculation. Some of the biggest factors that impact child support are each parent’s gross monthly income and the number of overnights each parent has throughout the year. Sometimes, the child support calculation will require the child support obligor to pay $0 per month, but this is not a waiver of child support. Sometimes, parents can agree to deviate upwards or downwards. Deviations are limited to specific circumstances and subject to approval by the judge.

Durable Power of Attorney

How do I customize a DPOA?

The DPOA is highly customizable, allowing your delegated powers to be broad or narrow, depending on your specific wishes. The person you appoint should ideally be someone who understands your values, wishes, and financial situation thoroughly.

When does my DPOA take effect?

Your DPOA can take effect immediately, or you can structure it so that it only becomes effective if you are incapacitated. You can also specify conditions that must be met before your agent can exercise their powers.

What powers are granted to my agent?

With a Durable Power of Attorney, your agent gets the power to manage your bank accounts, investments, real estate, and other financial matters. They can handle the upkeep of your property, make repairs, pay bills, and make decisions about selling or renting your property. In addition to financial matters, your agent can also make medical decisions on your behalf. These include consenting to or refusing treatment, communicating with doctors, and making decisions about end-of-life care.

What are the benefits of having a DPOA?

Having a DPOA can provide peace of mind, knowing that someone you trust is empowered to make decisions for you if you become incapacitated. It ensures that your financial affairs and healthcare needs are handled without interruption. Moreover, a Durable Power of Attorney can help you avoid time-consuming and expensive court proceedings, as it may preclude the need for a court-ordered guardian.

Getting Started

How can I schedule a meeting?

You may call or text (918) 208-0129 or (479) 579-2121 to give us your first and last name, your mobile number, and your email address. We will reach out to you for a little more information and discuss options for meeting. For family law cases, we have a powerful online intake pathway.

Oklahoma Family Law Intake

Arkansas Family Law Intake

If you cannot meet in person, we can set up a meeting over Zoom.

Why is there a consultation fee for family law and criminal defense matters?

There are several reasons why we charge a consultation fee. We work hard to gather enough preliminary information before and during your initial meeting so we can give you a candid, no-nonsense, personalized assessment of your situation and options. That first meeting generally takes up to an hour. There is a great deal of public demand for our time and services. Sometimes, we are asked to consult on a matter simply to conflict us out of representing the other side. We charge a consultation fee due to the value-add of our time and attention given during your initial meeting.

What should I bring to my first meeting with you?

You do not necessarily need to bring anything to your initial meeting with us. During the intake process, we may send you a list of information that may be helpful for your type of case. If you are consulting with us about an existing court order or decree, it may be helpful for us to have a copy of the documents to review before and during the meeting.

Should I bring someone with me to our meeting?

The attorney-client privilege only applies when you and an attorney speak alone, one-on-one. For you to have the most protected, private, and confidential consultation possible, no third party may be present in the room or within earshot of the conversation. Even knowing this, some people choose to bring a parent, significant other, or trusted friend with them to the first meeting. Ultimately, it is up to you.