Financial Pitfall of Separation
For many married couples in Oklahoma, the road to divorce is not a straight line. It is common for a couple to separate, live apart for months or even years, and attempt to co-parent informally before finally deciding to file for divorce. However, under Oklahoma family law, this "informal separation" period can create a significant financial pitfall for the primary caregiver—a loophole that often makes it impossible to recover child support for the time spent separated prior to filing legal paperwork.
The Scenario
Consider a common situation: A married couple separates. The mother keeps the children, and the father moves out. For two years, they live apart. The father visits occasionally but pays no regular child support, and the mother, hoping for reconciliation or wanting to avoid conflict, does not go to court. Eventually, they decide to divorce. The mother files the petition and asks the court for "back child support" for the two years she effectively raised the children alone.
In many jurisdictions, this seems like a reasonable request. However, in Oklahoma, she is likely to find that the court cannot grant her request for those previous two years.
The Legal Distinction: Title 43 vs. Title 10
The impossibility of getting this back support stems from a sharp distinction in Oklahoma statutes between divorce (Title 43) and paternity (Title 10).
If the couple had never been married, the mother would file a paternity action. Under Oklahoma Statute 10 O.S. § 83, the court has explicit authority to award retroactive child support for up to two (2) years prior to the filing of the petition. In a paternity case, the law recognizes that the obligation to support exists prior to the filing of a paternity petition.
However, for married couples, child support is governed by Title 43. Unlike the paternity statute, Title 43 does not contain a provision that explicitly allows for a "look-back" period for child support prior to the commencement of the divorce action. In a divorce, the court’s jurisdiction to order support generally attaches only when the petition is filed.
The Consequences
Because the court’s power to order support in a divorce is typically prospective (starting from the date of filing or the temporary order), the two years the couple spent separated without a court case effectively fall into a legal black hole. Unless the couple had a signed separation agreement, the primary caregiver usually cannot go back and claim support for months or years prior to the filing date.
This legal reality makes "waiting to file" a costly decision for custodial parents. Oklahoma attorneys often advise that if a separation is inevitable, the custodial parent should file for divorce or separate maintenance immediately to "stop the bleeding" and preserve their right to financial support from that day forward.
Author: Ciera Freeman
From: Boeheim Freeman Law - Family Law Attorneys - Tulsa, Oklahoma - 918-884-7791