Will You Marry Me?
The Question That Could Make You a Felon
By Michael E. Chionopoulos and Marion Mason

Will you marry me? Not knowing the law in Oklahoma before asking that question has likely created more felons, although not necessarily convicted felons than any other single question. Divorce has, regrettably, become a law practice staple. Every lawyer in Oklahoma must know a little something about divorce law. Whether engaged in a highly specialized practice completely unrelated to domestic law or a more general practice, almost every lawyer will undoubtedly be asked family law, and more specifically, divorce questions. What member of the Oklahoma bar has not been asked a family law question? Even if only at a party where a significant client, or one that the lawyer hopes will become a significant client, says "You know, I am glad you are here tonight - my friend is going through a divorce and has been told…" Some of the more important and sophisticated members of the bar, after trying not to show their preference for avoiding such minatory legal issues, do not wish to appear uninformed on any point of law and will use logic rather than substantive knowledge to answer the question. This article is intended to clear up a common misconception about the arcane, and often incorrectly analyzed, legal issue of remarrying during the six-month post-divorce prohibition.

Most lawyers know of at least one occasion where a client, friend or family member has done just that - been divorced in Oklahoma and remarried in another state before the end of the six-month prohibition period. On numerous occasions the following question has been posed to lawyers throughout Oklahoma: "My divorce decree says that I cannot remarry in Oklahoma for at least six months, unless I marry the person I just divorced, but I can go to Texas and get married, right?" Most often, the answer comes, and usually in stentorian tone: "Sure, your divorce decree says you cannot get remarried 'in' Oklahoma." However, such an answer represents only half of the analysis required. While this article is not intended to address ethical issues, a lawyer giving such advice would be remiss not to consider the professional responsibility ramifications arising from an incomplete analysis. It is true that Oklahoma law prohibits only those marriages 'in' Oklahoma during the six-month period. It is, however, also true that under certain circumstances, Oklahoma has criminalized violation of the six-month prohibition.

Although not required to contain a specific recitation of Oklahoma law1, most divorce decrees contain language consistent with at least the first part of 43 Okla. Stat. §123, which states:

It shall be unlawful for either party to an action for divorce whose former husband or wife is living to marry in this state a person other than the divorced spouse within six months from date of decree of divorce granted in this state, or to cohabit with such other person in this state during said period if the marriage took place in another state; and if an appeal be commenced from said decree, it shall be unlawful for either party to such cause to marry any other person and cohabit with such person in this state until the expiration of 30 days from the date on which final judgment shall be rendered pursuant to such appeal. Any person violating the provisions of this section by such marriage shall be deemed guilty of the felony of bigamy. Any person violating the provisions of this section by such cohabitation shall be deemed guilty of the felony of adultery (emphasis added).

The language in a typical divorce decree is designed merely to put the parties on notice that there is a specific prohibition against remarriage in Oklahoma to any one other than the person they just divorced, for a period of six months following the divorce decree. The typical divorce decree does not usually continue on by advising the parties regarding potential consequences for violating the prohibition.

It is well settled that the prohibition in a decree of divorce has no extraterritorial effect, and is enforceable only in the state where the decree is granted, and that outside of such state the marriage is generally treated as valid.2 It was also long held that where"… the parties leave the state of their domicile and go into another state and marry, for the purpose of evading the law of the state of domicile, and forthwith return to the state of domicile, the marriage is generally held void in the state of domicile."3 However, in 1992 the Oklahoma Supreme Court expressly overruled previous decisions4 and held that a marriage conducted in another state during the six-month prohibition period against remarriage is valid.5 The now-overruled cases interpreted a previous version of the statute discussed herein. Essentially, there was a point in time when out-of-state marriages celebrated within the prohibition period were void in Oklahoma. Today, however, such marriages will be recognized - but there could be criminal sanctions for cohabitation in Oklahoma, whether there was a subsequent marriage or not, during the prohibition period. One who has been divorced in Oklahoma and leaves Oklahoma for the purpose of frustrating the six-month prohibition on marriage to someone other than their most recent former spouse has accomplished their goal, but the newlywed, albeit unknowingly in most cases, will have also committed a felony upon returning to and cohabitating in Oklahoma.

The following scenario represents a typical fact pattern. Richard and Madison Discord have discovered that their matrimonial bonds were formed with defective emotional epoxy. As a result, Mr. Discord moves out of the family home and divorce proceedings are undertaken by one of the parties. Either with or without the involvement of children, the divorce process is often slowed down by acrimonious and/or parsimonious conduct of one or both parties. In the mean time, however, Mrs. Discord begins dating Mr. Right. Ultimately, the Discord divorce is granted on April 1, 2003, and restores Mrs. Discord to her maiden name of Bargainquest, some 26 months after filing of the initial petition. Ms. Bargainquest, now anxious to become Mrs. Right, asks her lawyer if it is valid for her to go to Texas and marry Mr. Right during the six-month prohibition. Since the divorce decree prohibits only remarriage 'in' Oklahoma, the lawyer answers affirmatively. Later that evening, while celebrating Ms. Bargainquest's recent matrimonial emancipation, Mr. Right asks, "Will you marry me?" On April 18, 2003, Ms. Bargainquest and Mr. Right slip quietly across the Red River and are married in Wichita Falls, Texas. Thereafter, Mr. and Mrs. Right return to Oklahoma and reside as husband and wife.

Analysis of the above example reveals several things: First, the legal advice given to Mrs. Right was correct, but it was also incomplete. If Mr. and Mrs. Right were married in Oklahoma, the marriage would be considered polygamous and, therefore, void. While it is true that, because Mr. and Mrs. Right were not married in Oklahoma, the marriage is valid, Mrs. Right was not told that her failure to adhere to the six-month prohibition is grounds for annulment of the marriage by either party8 or that returning to the state of Oklahoma and cohabitating with Mr. Right after such marriage constitutes a felony.9 Additionally, according to 43 Okla. Stat. §123, above, Mrs. Right is "deemed guilty" of adultery by virtue of living with Mr. Right in Oklahoma during the prohibition period. In other words, Mrs. Right is no longer innocent until proven guilty. Rather, the statutory language cited above shifts the burden of proof to Mrs. Right so that she is in the uncomfortable position of proving she is not guilty.

Admittedly, the likelihood that Mrs. Right will be prosecuted is remote. The district attorney has to manage available and limited resources to prioritize prosecution efforts. While Mrs. Right's actions clearly constitute a felony, it would be difficult to persuade the average person that Mrs. Right's legal transgression should be resourced and prosecuted over a rape, murder or other violent crime. Moreover, under most circumstances it is unlikely that Mrs. Right's crime would come to the attention of a prosecutor. Indeed, absent Mr. Discord's specific complaint, it is highly unlikely that Mrs. Right's crime would be discovered.

In summary, getting remarried in Oklahoma during the six-month prohibition period will likely render that marriage void and could give rise to a felony charge of bigamy. Remarrying outside the state of Oklahoma during the six-month prohibition period will result in a valid marriage, even in Oklahoma. However, cohabitation in Oklahoma with one other than the most-recently divorced spouse during the six-month prohibition period, with or without a subsequent marriage, could result in a felony charge of adultery.

1. Wasson v. Carden, 594 P.2d 1223, 1225, 1979 OK 69 (overruled on other grounds).
2. Harvey v. State, 238 P. 862, 864 (1925).
3. Harvey v. State, 238 P. 862, 864 (1925).
4. Branson v. Branson, 123 P.2d 643 (Okl.1942); Mantz v. Gill, 296 P. 441 (Okl.1931); Mudd v. Perry, 235 P. 479 (Okla.1925). See Copeland v. Stone, 842 P.2d 754, 757-758, 1992 OK 154, for further explanation.
5. Copeland v. Stone, 842 P.2d 754, 757-758, 1992 OK 154.
6. Copeland v. Stone, 842 P.2d 754, 756, 1992 OK 154.
7. Copeland v. Stone, 842 P.2d 754, 758, 1992 OK 154.
8. 43 Okla. Stat. §126.
9. 43 Okla. Stat. §123.

ABOUT THE AUTHORS

Michael E. Chionopoulos is a 1992 OCU graduate. He recently returned from a tour of duty in the Middle East, during which he was promoted to the rank of major, as the command staff judge advocate with Task Force 1-180th Infantry. Currently, Mr. Chionopoulos is the co-host of Saturday Night Law on KTOK talk-radio. Mr. Chionopoulos is also OBA House Counsel Section chairman.

Marion Mason earned a B.S. in criminal justice and psychology from Cameron University in 1999. She served as the staff judge advocate non-commissioned officer with Task Force 1-180th Infantry in the Middle East and was awarded the "Warrior Jag Memorial Jefferson Cup" for successfully defending a soldier in an administrative action. Sgt. Mason intends to apply to law schools in Oklahoma upon her release from active duty in 2004.