Distribution of Military Retirement in Divorce

This is one of the least understood and commonly misapplied areas of family law - by lawyers and Judges alike. There seems to be this common misperception that if a non-military spouse is married to the military member for less than 10 years of his/her career then the non-military spouse is entitled to no portion of the military retirement. I have also heard the converse zelously asserted. NEITHER IS TRUE!! 10 USC 1408 made clear that it was leaving the question of whether or not "disposable retired pay" is divisible as a marital asset to each state! Oklahoma has published several opinions- at least one from the Oklahoma Supreme Court and several from the OK CIV APP regarding this issue - and the sub-issue of what to do when some or all of the military member's pay has been converted to VA disability benefits.

I will soon be submitted an article explaining these points of law to the OBJ. In the meantime, please feel free to comment with your thougts and whether or not you think such an article would be helpful. Thank you.

Divorce and the Constitution

Often times, the staples of law are overlooked in domestic court. As a former domestic judge, I know that sometimes, although unintentional, in an effort to reach a practical, amicable and uncomplicated result, United States Constitutional issues can be overlooked. Indeed, such issues are often so mired in the myriad of acromonious issues, vitriolic conduct of the parties and concerns for the interests of any involved children that they are difficult to spot. Many citizens do not fully appreciate the glorious constitutional rights bestowed upon each of us individually. Moreover, many lawyers do not fully understand, or do not bother to think about, them. Worse yet, even judges fail to recognize constitutional issues mired in the myriad of acrimonious positions asserted before them.

First, a little history is in order. The First Amendment is part of "The Bill of Rights" (the first Ten Amendments collectively constitute The Bill of Rights), which was passed in 1891. The First Amendment states, in its entirety:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.

While many legal issues have arisen under the First Amendment, this article is going to focus on the right to free association and will be discussed in the context of family law. So, you are asking: “I just read the First Amendment. Where does it say I have a right to freely associate with others?” (This is a real question, which was actually asked by a real lawyer!). The United States Supreme Court has held “The First Amendment … restricts the ability of the State to impose liability on an individual solely because of his association with another” (N.A.A.C.P. v. Claiborne Hardware Company, 458 US 886, 919, 102 S.Ct. 3409 (US 1982)). “Thus, the First Amendment protects freedom of association because it makes the right to express one’s views meaningful” (Minnesota State Board for Community Colleges v. Knight, 465 US 271, 308, 104 S.Ct. 1058, 1070 (US 1984).

There are, of course, limitations on one’s First Amendment right to freedom of association (see Roberts v. United States Jaycees, 468 US 609, 104 S.Ct. 3244, 3260 (US 1984)) that held infringements on freedom of association “may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms”). For instance, if one could show that the opposing parents' significant other was a danger to the children, i.e. a convicted sex offender, habitual drug user, physically abused the children etc., then "the best interest of the child(ren)" would override any First Amendment privilege the parent may have in hosting his/her significant other while the children are present.

So, given the law enumerated above, is it correct for a nisi prius domestic court to enter a "be good" order requiring that neither parent have an overnight visitor with whom he/she is involved spend the night while in posessions or custody of the children - without a showing that the 3rd party is a danger to the child(ren)? Does it make a difference if the nisi prius order is enterered on a temporary basis pending divorce or in a final decree/post decree modification? Please comment!

Comment on Articles

As you can see, a list of articles I have written is down the left hand side of this page. If you have any comments on the most recent article, published in the News Press, please feel free to share those comments by commenting on this post. I will hope to hear from you. THANK YOU!

Collaborative Divorce Process

There is a new movement afoot in divorce law. As everyone knows, divorce is costly - both economically and emotionally. One alternative approach that seems to be taking hold around the country is the "Collaborative Process." Essentially, both parties have lawyers (but not always). They enter into a contract, one clause of which requires that each party agrees not to file suit (a divorce) unless or until the process fails. The approach includes, depending on the parties, mental health professionals and a neutral party, arbitrator most times and can even include clergy, again depending on the parties' preference. The basic idea is to be parsimonious rather than acrimonious. The goal(s) of the process is tailor made for the parties involved.

Of those who voted on this page, 2/3 stated they would engage in the Collaborative Divorce Process. This is a significant number. While the CDP is not about to antiquate traditional divorce trial lawyers, hopefully it will help insulate some children from the maladies born of matrimonial acrimony.

Open Ocean Triathlon

Well ... I participated in my first "open ocean" triathlon. Unlike pool swims, or even lake swims, the open ocean is much more challenging and much more fun! The weather was perfect, the water beautiful and my time SLOW! I need to get back in shape ... as you can see by the photo on the left part of the page where I am gasping for air after climbing a hill. Remember, training the mind means also training the body!

Iranian President -Amadnejad

WOW - an amazing 78% of those who voted on this page said that The Iranian President speaking at Columbia University was "free speech" and supported it! Of course, 22% of those who responded said that it was an inappropriate forum. It seems that even when people are saying things with which we disagree, Americans still favor the right of that person to say it! An overwhelming majority seems to still believe in the basic constitutional rights of our representative democracy!

Andrew Meyer, Florida Student, "tased" - necessary or excessive force? By Michael E. Chionopoulos

The main video, and some alternative videos of Andrew Meyer being tased at the University of Florida can be found at http://www.youtube.com/watch?v=mJbh2MlNHug&mode=related&search There was an in depth discussion of the issues involved here on this page. Moreover, you were asked to vote. 87% of those that voted stated that the University Police used "necessary", as opposed to excessive, force! While it is true that immediately following the incident some media sensationalists made ludicrious statements comparing the University Police actions to the human rights violation of Sadaam Hussain's reighn of terror, once people had the "facts" (and not media, objective-driven, spin) 87% determined for themselves that the force used was reasonable and necessary.

WELCOME HOME 1-180th INFANTRY

The 1-180 Infantry Battalion, Oklahoma Army National Guard, is returning from Afghanistan. These men and women are indeed some of the most special people in the entire world - I know this because I had the honor of serving in that Battalion as a young Captain. Currently lead by Lieutenant Colonel Bobby Yandell, the Battalion is returning from a "combat tour." For most of the soldiers it is their 2nd or 3rd tour in the Middle East within the last few years.

Starting in June 2002, the Battalion trained for a "Peace Keeping" mission in Egypt. From January 2003-July 2004, lead by now Colonel Kevin McNeely, the Battalion flexed American military muscle between the border of Egypt and Israel - maintaining a delicate peace agreement between the two nations governing rules within the Sinai desert. Some soldiers of the Battalion went with other units to Iraq; the entire Battalion went to Afghanistan with the 45th Separate Infantry Brigade; and then was tasked to go right back as a Battalion.

The sacrifices made by these men and women and their family members is so under appreciated - not for want of thankfulness, but for want of understanding with regard to the training, family hardships, professional (civilian career) hardships and employer hardships necessary to make these deployments successful.

TRUE PATRIOTS - these men and women deserve our most deep respect. Unlike an "active duty" soldier, there is no retirement rainbow at 40 or so years old. Rather, many of these men and women will serve more than 25 years and still not collect a penny of retirement if and until they live to 60 years of age. They get no health care benefits once released from their deployment; no re-employment assistance (accept the ability to hire a lawyer on their own dime if an employer violates USERRA); no mental health screening before discharge; and about 1/2 of the retirement at 60 that an active duty soldier gets 20 years earlier. These men and women do not do what they do for money - they do it for love of nation and love of freedom and they do not complain. Rather, they embrace the opportunity to serve. So the next time you see one of them ... or any soldier, sailor, airmen or marine ... say "THANK YOU!"

As we continue to go to the mall and the movies and on vacation, it is difficult to remember that the sons and daughters of America remain quietly in harm's way. Please try to remember to thank them for their sacrifices - even if you do not agree with the war. What is the saying? "Hate the game, not the player!"

Domestic Violence Survey - Michael E. Chionopoulos

I am moving sites ... from http://www.okiejudge.blogspot.com/ to this new site. Of course, you can still visit the old site with the link provided here. At least for now, I will leave the domestic violence survey on the old site.

I also intend to start a new survey on this site, with some refinement due to my learning experience in phrasing questions from the first research. This will be an ongoing project, from which I hope to obtain data that will allow me to write work(s) that will draw attention to the growing problem of domestic violence and, hopefully, will cause new resources and inovative interventions to be created for victims.