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!