Skip to main content
David A Tracy

David Tracy’s Answers

39 total

  • I am considering a divorce. My husband is 100% disabled, but is able to walk, talk, drive, etc. He receives a disablity check

    He says that he is court ordered to have a provider and that I am the provider -that I signed papers when he left the hospital. He receives more money than I in disability and SS. I am also retiring this year and will be on a fixed income. Will...

    David’s Answer

    I would recommend you contact your local Legal Aid office, or your local bar association Lawyer Referral Service, for a consultation with an attorney. It sounds as though you are concerned about cash flow and support obligations if you divorce your husband. The answer to your question will depend on how much money each of you receives per month, and what you each need to meet your monthly living expenses. I do not understand your husband's reference to a "provider," but I can say with some certainty that the law does not require you to stay with him against your will.

    See question 
  • How long does a couple have to live together in the state of Oklahoma to be considered as common law marriage?

    My mother is in a live in relationship with a man that is 20 yrs junior to her. She and my father (now divorce) purchase her current home over 40 yrs ago, and it is paid off and in her name only. Can her live in man friend claim comment law marri...

    David’s Answer

    Anyone can claim a common law marriage. The question is whether one can prove a common law marriage. It has nothing to do with how long people have lived together. Common law marriage is actually a state of mind.

    The party asserting a common law marriage must prove the following elements: an actual and mutual agreement between the spouses to be husband and wife; a permanent relationship; an exclusive relationship; cohabitation as man and wife, and; the parties to the marriage must hold themselves out publicly as husband and wife. The party asserting a common law marriage has the burden of proof by clear and convincing evidence.

    Each case is fact specific. Filing taxes as a married couple is a strong indicator of common law marriage. Filing taxes as single people who live together is a strong indicator that there is no marriage. That's not the only indicator, though, and not always conclusive. How do the parties handle their other finances? Do they own property together? How do they introduce themselves to their friends and acquaintances? Is there health or medical insurance showing marital status? what about beneficiary designations on life insurance and retirement accounts?

    Oklahoma is one of only 8 or 9 states that recognize common law marriage. Evidence of a common law relationship can be contradictory and confusing. You might want to suggest to your mother a cohabitation agreement that states clearly the couple is not married. The agreement can specify who owns what property, and how the couple will share their finances, and what happens should the relationship end.

    See question 
  • How do i get my sons dad to sign over rights?

    my sons dad hasnt been in his life almost since birth,he did however sign the birth certificate. he has two warrents issused now for his other two children he doesnt care for. i have no contact with him at all. I do know hes currently living where...

    David’s Answer

    There is no private action revoke a parent's rights in Oklahoma. The State of Oklahoma can move to terminate a parent's rights in a juvenile case. The court can declare a child eligible for adoption without the consent of a parent in some circumstances. A person's status as a parent is otherwise considered a fundamental constitutional right, subject to due process and equal protection under the law. If the father tries to come back into your son's life, and you think your son's best interests are served by placing restrictions on the father's access, you may need the help of the family law court to oversee custody and parenting time decisions.

    See question 
  • Are my court orders from california able to be enforced in Oklahoma where me, my daughter, and her father live?

    I have sole physical custody in California and moved out here to allow her to know and visit her father. He never calls to see her and is saying I am the one that is keeping her from him when he changes or disconnects his phone every couple of mon...

    David’s Answer

    If both parents and the child have moved from California, and the child has lived in Oklahoma for at least 6 months, you can register your custody order for enforcement and modification. It can be registered for enforcement only if you don't meet the 6 month residency requirement. An Oklahoma court can put a patch on some of your problems, but it appears communication is a big part of your problems with the father. Those cannot be solved by a court. You might consider talking to an attorney about having a parenting coordinator appointed so you don't have to go to the courthouse to sort through every detail of co-parenting with a jerk (keeping in mind he would say the same thing about you). Research shows the amount of conflict a child is exposed to between parents has more effect on a child than whether the parents are divorced. Please keep that in mind when thinking about how to respond to the father's lack of consistency in parenting.

    See question 
  • My daughter had a newborn baby girl out of wedlock. The father came and picked up the baby and will not return her.

    My daughter had a baby girl out of wedlock. The father came and picked the baby up Sunday and was to bring her right back. He has kept her and will not return her. My daughter has only seen her baby one day. He was with my daughter for 10 years an...

    David’s Answer

    You daughter needs legal help to assert her rights as a parent. The police cannot help you because this is a civil matter, not a criminal matter.

    You do not say if the alleged father is listed as father on the birth certificate. If he signed an acknowledgment of paternity, and the acknowledgment was recorded with the Oklahoma Department of Health, he has all the legal rights of a father. If he is not on the birth certificate, he is out of line taking and keeping the child.

    Your daughter needs to file a petition to establish parentage, if necessary, as well as custody, parenting time and child support. the Oklahoma Department of Human Services has an Office of Child Support Services that can help with child support, but not with the custody or visitation issues. You are on your own in that regard, and I urge you to get legal assistance promptly. Contact the Oklahoma County Bar Association lawyer referral service, or get a referral to a family law attorney.

    The "father's" actions will not serve him well in court. You will have to take the initiative to get the case to court. Good luck.

    See question 
  • My ex is trying to appeal our default divorce, what grounds does she have to stand on since she already passed the 20 days

    I just got awarded a default divorce and am trying to move on with my life. My ex has stated that she is going to bury me, meaning financially. How many days does she have to appeal the final decree?

    David’s Answer

    When you say "appeal," do you mean she is trying to vacate the default divorce? if she filed a motion to vacate less than 30 days after the default decree was entered, the court will likely vacate the default decree. The law views default judgments with disfavor, and prefers to have matters decided on their merits. You should visit with an attorney in your area for advice on how to protect your rights.

    See question 
  • Does she have to sign the divorce papers for him to get the divorce?

    my friend is trying to get a divorce from his wife who left him 2 months after they got married. he couldn't get a hold of her for a long time, so i found her on Facebook for him and started talking to her. she said she would sign the papers so we...

    David’s Answer

    Unfortunately for your friend, it take two people to agree to a settlement. If the wife fails or refuses to sign the decree, due process requires that the wife be given notice and an opportunity to be heard before the court will sign a decree. To meet these requirements, your friend will have to have a summons issued, and hire the sheriff's office or a process server to deliver the papers to her. If she doesn't respond, he may have to file a motion for default judgment and mail her notice of that hearing. Though this may seem a burden, remember that due process protects your friend as well as his wife from abuse by the legal system. Remember that the rules exist to protect all of us, not just to inconvenience some of us.

    See question 
  • Child custody

    I am involved in a custody battle with my ex. Right now we have weekly shared visitation until the final court hearing. Everytime I get my kids back from her they are severely sick. My 2 year old is now on breathing treatments. This last doctors v...

    David’s Answer

    You can hire a professional inspector to look for allergens, including mold, and other unsafe conditions at the mother's house. If necessary, you can get court order to allow the inspection. You will have to front the expense of the inspection. Make sure to hire an inspector who will give you a written report, and is willing to come to court to authenticate and explain it. You should have your own house inspected, too, just to be thorough (and you may want to hire a different inspector for your house since you don't know the results in advance).

    See question 
  • What can I do to make sure my ex picks up our son, instead of going to his girlfriends and saying he's working?

    He picks him up on Saturday morning, but on Friday night he always says he's working and I know that is not true. Would it be appropriate for me to go by his girlfriends home and knock on the door, knowing he is there and bring my son to him? He...

    David’s Answer

    It is hard on you and the child when a parent is inconsistent in exercising his time. You cannot control the other parent. You can, however, control your reaction to the other parent's actions. First, do not let your anger over this situation show in front of the child. Do not bad-mouth the other parent in front of the child. Allow the child to talk about his feelings. Reassure him that he is loved, and that any difficulties he is having with his father are the result of difficulties the father is having. Don't lay blame on the father, but reassure the child it's not the child's fault. If you have the chance, talk to the other parent calmly about the effect his lack of consistency is having on the child. He may not be aware. You cannot shelter a child from all of life's disappointments. You should anticipate the father's inconsistency and have a back-up plan so the child can adapt to another form of quality time.

    See question