In Oklahoma, debt division and property division in divorces are mandated by 43 I O.S. §121. Section 121 provides that: When a divorce is granted, the wife shall be restored to her maiden or former name if she so desires. The Court shall enter its decree confirming in each spouse the property owned by him or her before marriage and the undisposed of property acquired after marriage by him or her in his or her own right. Either spouse may be allowed such alimony out of real and personal property of the other as the court shall think reasonable, having due regard to the value of such property at the time of the divorce. Alimony may be allowed from real or personal property, or both, or in the form of money judgment, payable either in gross or in installments, as the court may deem just and equitable. As to such property, whether real or personal, which has been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall, subject to a valid antenuptial contract in writing, make such division between the parties as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to be paid such sum as may be just and proper to effect a fair and just division thereof. The court may set apart a portion of the separate estate of a spouse to the other spouse for the support of the children of the marriage where custody resides with that spouse.

Therefore, by statute, our courts are required to award separate property (that which is acquired prior to the marriage or after the marriage by gift or inheritance) to the party who owns such property, and to divide property which was jointly acquired during the marriage in a just and reasonable manner. Case law indicates that our court's division of jointly acquired assets must be "equitable", and while "equitable" does not mean exactly 50-50, it means as close to down the middle as is practical under the circumstances. Teel v. Teel 766 P.2d 994 (Okla. 1988).

THE USE OF PRENUPTIAL CONTRACTS

Prenuptial contracts are more often than not used today to alter the outcomes that might occur in the application of our rules of property and debt division and spousal support to a couple who are seeking a divorce. Such contracts are no longer the province of the rich, but have become common among all kinds of couples for a variety of reasons. Prenuptial contracts are becoming more common, because divorce is more common. People's expectations about marriage and the likelihood of the endurance of the marriage have changed dramatically in the last fifty years. Without commenting on those causes or the desirability of same, we must recognize that we live in a different culture from that of our parents and their parents.

A contract entered into in contemplation of marriage (the consideration for which is the marriage itself) is frequently referred to as an antenuptial agreement, a prenuptial agreement or a premarital agreement. The use of such contracts and their applicability have changed with time. At this writing, prenuptials are used to settle the parties rights incident to divorce and death.

While this article will not discuss how our courts determine the validity of an antenuptial contract, it should be generally noted such contracts are interpreted like any other contract in law, and are subject to the defenses generally available in contract disputes. Also, to be valid, an antenuptial contract must be predicated on a full, fair and frank disclosure of assets and liabilities by each party. In re Cobb's Estate, 1956 OK 299, 305 P.2d 1028.

Prenuptial agreements are used to set aside to each spouse the separate property of that spouse. The mandate of 43 O.S. § 121 requires the same outcome. However, a prenuptial agreement can be used to insure that such separate property is clearly identified as such and will cut down on legal fees that might otherwise have been spent in doing discovery as to assets and liabilities.

The mere fact that an antenuptial agreement makes no provision or an unfair provision for one or the other spouse does not render the agreement unenforceable. Matter of Estate of Burgess, 1982 OK CN APP 22, 646 P .2d .

Prenuptial agreements are also used to eliminate potential risks of alimony and attorney's fees in divorce actions. Custody and child support matters may be addressed in a prenuptial contract, but courts are not likely to enforce such provisions because they are viewed as against public policy.

Prenuptial agreements may also be used to affect inheritance rights or rights incident to the death of one of the spouses. For example, the right to inherit property from a deceased spouse when there is no will, as provided for by our statutes of Descent and Distribution, is barred by the waiver of any claim to the property of the other party in a prenuptial contract.

In Oklahoma, a spouse who dies having executed a will which gives his or her surviving spouse less than what is provided for by the Descent and Distribution statutes may elect to "take against the will", and take his or her statutory share of the estate. However, a spouse's right to elect to "take against the will" can be and will be waived if the surviving spouse has agreed to release any interest in the property of the other in a valid antenuptial contract.