Chapter X
EXTRAJURISDICTIONAL
AGREEMENTS
A note of caution: Changes in divorce law are constant and can occur at any time either through new legislation or new state or federal court decisions. Each year, many such changes will occur. Your best and most current information will come from a lawyer who is competent in divorce practice and who keeps abreast of such changes and who is familiar with your own particular marital history.
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Despite the exceptionally broad discretion which is present in the trial court, there are certain types of orders which a trial court cannot enter, without an agreement by the parties that it do so, and, in Loudenback's Lay Divorce Guide several references have been made to this chapter - because, for most divorce issues, the parties are capable of entering into an agreement which makes provision for orders inconsistent with or even contrary to statutory law and, so, such orders exceed the court's power, i.e., its jurisdiction. That is why I call such orders "extrajurisdictional decrees" (although, as far as I am aware, no one but me calls them that). Upon occasion, the appellate courts refer to such orders as "consent decrees" - I have avoided that phrase because it is mentioned in Oklahoma appellate court decisions loosely and without exact meaning as to the topic of this chapter.
Examples of such agreements are these: orders concerning the post-high school educational expense of the parties' children; orders concerning life insurance to protect the full payment of a support alimony award; orders concerning co-ownership of property upon divorce (such as a business operation of the parties); orders concerning the funding of a child's trust; orders for support alimony to continue after remarriage of the recipient or death of the obligor; orders for variable amount support alimony, depending upon variables which are agreed to by the parties (such as a percentage of the payor's income); or orders for indefinite term support alimony (such as until the wife remarries).
It is probable that such agreements and resulting orders may bind the parties and the court in later enforcement and/or modification contexts concerning all issues, except for these: child custody, child visitation, and regular child support. To the extent that the parties would agree as to such child issues "forever more" and that orders entered pursuant to their agreement would be non-modifiable, such orders would be contrary to public policy and would most certainly not be obligatory upon the courts.
Until an Oklahoma Supreme Court decision in 1999, it seemed rather clear from earlier Supreme Court and Court of Civil Appeals decisions that: an extrajurisdictional decree begins with an extrajurisdictional agreement, required to be in writing, required to be a document other than the divorce decree, required to be filed with the court clerk and become part of the case history, and, in which agreement the parties expressly agree that the court enter the particular parts of their agreement in orders of the court which exceed the court's ordinary power. Preferably, though not necessarily, the agreement should contain express waivers of inconsistent applicable law.
However, in a 1999 decision, the Supreme Court appears to have abandoned many if not all of these requirements. A problem with the 1999 decision is that it did not reference an earlier Supreme Court decision which appears to impose requirements which may have been abandoned in the 1999 decision.
The general topic has been troublesome in the past with the Oklahoma Supreme Court, particularly during the 1970's. For example, whether the parties were legally capable of agreeing that support alimony not terminate upon remarriage was answered, "Yes," but only by a 5-4 Oklahoma Supreme Court vote. Two decisions clarifying the requirements were published in 1980 and 1981 but some doubt over those requirements appeared in a 1994, released for publication in 1995, as well as the 1999 decision decision by the Oklahoma Supreme Court alluded to above. Changes may yet occur in the future. When entering into an extrajurisdictional agreement, great care should be taken concerning its form and content and . One eye should be on the possibility that a particular agreement could be later declared to be a nullity. The Supreme Court has not been consistent in this area. For a more thorough analysis, see Survey of Oklahoma Divorce & Modification Issues.
Such agreements are not usually made if any issue in the divorce is tried to the court. If the parties do not reach total agreement, they are typically unwilling to enter into piecemeal agreements on such matters as are described in this Chapter.
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