Posted by DivorceLine in Vermont Divorce Procedures
Complete overview of Vermont divorce laws for people considering a Vermont divorce or filing a Vermont divorce with issues to be resolved about child custody, child support, visitation and alimony.
Vermont Divorce Residency Requirements
In order to file your Complaint for Divorce in Vermont, you must make sure the Family Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Vermont residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:
A complaint for divorce or annulment of marriage may be brought if either party to the marriage has resided within the state for a period of six months or more, but a divorce shall not be decreed for any cause, unless the plaintiff or the defendant has resided in the state one year next preceding the date of final hearing. Temporary absence from the state because of illness, employment without the state, service as a member of the armed forces of the United States, or other legitimate and bona fide cause, shall not affect the six months’ period or the one year period specified in the preceding sentence, provided the person has otherwise retained residence in this state.
The divorce may be filed in the county in which either the husband, wife or both reside. (Vermont Statutes – Title 15 – Section 555)
Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Vermont. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Vermont residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.
Vermont Grounds for Divorce
The Complaint for Divorce is the initial document filed with the Vermont court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.
The court may grant a divorce from the bond of matrimony for the following reasons:
No-Fault Based Grounds:
(1) Living separate and apart for a period of at least 6 months with no chance of the marriage being saved.
Fault Based Grounds:
(1) Adultery; (2) Imprisonment for a period of 3 or more years. (3) For intolerable severity in either party; (4) For willful desertion or when either party has been absent for seven years and not heard of during that time; (5) On complaint of either party when one spouse has sufficient pecuniary or physical ability to provide suitable maintenance for the other and, without cause, persistently refuses or neglects so to do; (6) Incurable insanity. (Vermont Statutes – Title 15 – Section 551 and 555)
Every divorce case that is filed in the state of Vermont must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.
Vermont Uncontested Divorce
This information is an overview of the uncontested Vermont divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Vermont.
To file for divorce in Vermont, either spouse must be a resident of the state for at least six months before the action is started. Either spouse must be a resident of the state for a year before the action is final. Actions are filed in the county of residence of either spouse.
Grounds for divorce are No-Fault, living separate and apart for six consecutive months, with the resumption of marital relations not reasonably probable. Fault grounds include 1) adultery, 2) imprisonment for three years or more, 3) willful desertion for seven years, 4) cruel and inhuman treatment of intolerable severity, 5) incurable mental illness, 6) gross neglect.
Legal separation is available under the grounds of 1) living separate and apart without cohabitation for six months, and grounds 2 through 6 for a fault divorce. Either spouse must be a resident of Vermont for six months to file for a legal separation.
Actions are filed in the Family Court of the county of residence. The spouse filing for divorce is called the Plaintiff; the spouse responding is called the Defendant.
In Vermont, Family Courts offer the Pro Se Education Class for litigants who file for divorce without lawyers.
Vermont does not offer a summary or simplified divorce, but standard forms for all divorce paperwork are available.
If the divorce is not contested, a couple without children can be divorced by filing the following forms:
> Cover sheet (Form #800), which identifies the parties in the action:
> Summons, Complaint for Divorce and Notice for Appearance (Form #835);
> Health Department Vermont Record of Divorce or Annulment, which is used for statistic records;
> Affidavit of Military Service, which certifies that the Defendant enjoys no protections under the Servicemembers Civil Relief Act;
> Affidavit of Income and Assets (Form #813), which provides financial information about both spouses;
> Final Divorce Stipulation;
> Proposed Final Order, which includes the separation agreement.
An uncontested divorce for a couple with children includes all of the forms used for a couple without children, plus:
> A Summons, Complaint for Divorce and an Affidavit of Child Custody (Form #836);
> Affidavit of Income and Assets, which is a 17-page form used by the court to gain financial information to determine child support payments.
> Child Support Order, page 1 (Form #802).
(In either case — a couple with or without children — the Plaintiff, instead of filing the combined Forms 835 or 836 may file these forms individually. When this route is taken, the forms are a Notice of Appearance (Form #831), Summons (Form #832), Complaint for Divorce (Form #833) and Affidavit of Child Custody (Form #834)).
In a divorce, the Defendant may be served in one of six ways, as follows:
> Acceptance of Service, which is the most commonly used. The divorce papers, including the Summons and Complaint, the Notice of Appearance, is delivered by the Plaintiff to the Defendant.
> First Class Mail with Acknowledgment, which requires that the Defendant sign a Form #820 and return it to the court in a prepared envelope.
> Certified Mail, which requires a return receipt;
> Personal Service by the Sheriff, which means that the sheriff or local constable serve the Summons and Complaint.
> Publication, which is used when the Defendant cannot or will not be located. In this routine, after a diligent search, the Plaintiff advertises a notice announcing the divorce in a newspaper that is likely to be seen by the Defendant. This is done over three weeks.
> Outside the State, which involves using any of the methods listed above, plus a signed affidavit that the person who delivers the papers certifies that delivery.
In all circumstances, the Acceptance of Service, Acknowledgment of Service, Return of Service or the green card from the Post Office must be returned to the clerk of the family court by either the Plaintiff, the Defendant, the Sheriff or the post office.
The Summons informs the Defendant that he or she has 20 days to answer the Complaint. If the Defendant files an Answer, he or she may also file a Counterclaim. If the Defendant changes his or her mind after a counterclaim has been filed, the Counterclaim prevents the divorce from being dismissed.
If a Defendant fails to Answer, the action proceeds as an uncontested divorce, and the Plaintiff receives a default judgment is his or her favor.
Answers and counterclaims may be preparation for a contested divorce. When a couple cannot reach agreement on the division of assets and liabilities, child custody and visitation, they often prepare for trial even as they continue to work toward a settlement. Sometimes after the filing of the Complaint and the delivery of the Summons, the court imposes an Interim Domestic Order. This order prohibits the spouses from unilateral actions — taking custody of the children, looting assets or failure to maintain required medical insurance.
The court schedules a hearing in uncontested divorces after all paperwork and time requirements have been met. At uncontested hearings for marriages without children, the spouses must agree on the division and distribution of assets and liabilities and alimony, if any. The agreement is then memorized in writing as the Final Stipulation. At uncontested hearings for marriages with children, the spouses must agree to the division and distribution of assets and liabilities and alimony, if any, and the terms and conditions of child custody and visitation.
At the hearing, the Plaintiff must demonstrate that he or she and the spouse lived in Vermont for one year; that one spouse lived in the county where the action was filed; that the two spouses lived separate and apart for at least six months and there is no possibility of a reunification.
At the hearing, the court enters a divorce order, which normally become final 90 days later. The nisi period may be shortened, if one spouse or the other makes a request.
Vermont Simplified Divorce Procedures
Standard forms for filing of the complaint or petition are available. There are no legal provisions in Vermont for simplified divorce procedures. In all divorce cases in Vermont, a hearing is required and oral testimony of witnesses is required. However, in cases involving children, the court may, without a hearing, accept the written agreement of the parents regarding the children. An official statistical data sheet must also be filed with the Complaint and a statement of income and assets must be filed. [Vermont Statutes Annotated; Title 15, Section 662 and Vermont Rules for Family Proceedings; Rule 4].
Each state has its own unique filing procedure. When filing for divorce in Vermont, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Vermont Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Vermont Laws and the filing requirements.
Vermont Property Division Factors
In Vermont, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Family Court within the Decree of Divorce.
Vermont is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Family Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Family Court to be fair.
The court may consider all relevant factors, including but not limited to: (A) the duration of the marriage; (B) the age and health condition of the parties; (C) the occupation, source and amount of income of each of the parties; (D) vocational skills and employability; (E) the contribution by one spouse to the education, training, or increased earning power of the other; (F) the value of all property interests, liabilities, and needs of each party; (G) whether the property settlement is in lieu of or in addition to maintenance; (H) the opportunity of each for future acquisition of capital assets and income; (I) the desirability of awarding the family home or the right to live there for reasonable periods to the spouse having custody of the children; (J) the party through whom the property was acquired; (K) the contribution of each spouse in the acquisition of the marital property (L) the respective merits of the parties. (Vermont Statutes – Title 15 – Section 751)
Since Vermont is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.
Vermont Spousal Support/Maintenance/Alimony Factors
In Vermont the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Family Court will order support from one spouse to the other on a case-by-case basis as follows:
The court will consider the following when making a spousal maintenance order: (a) the financial resources of the party desiring maintenance; (b) the time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) the standard of living established while married; (d) the duration of the marriage; (e) the age and health condition of each spouse; (f) the ability of the spouse from whom maintenance is sought to meet his or her reasonable needs while meeting those of the spouse seeking maintenance; and (g) inflation with relation to the cost of living. (Vermont Statutes – Title 15 – Section 752 and 757).
Vermont Child Custody Factors
In Vermont, the court will order custody to ether parent or both by considering the following factors:
(A) the relationship of the child with each parent and the ability and disposition of each parent to provide the child with love, affection and guidance;
(B) the ability and disposition of each parent to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment;
(C) the ability and disposition of each parent to meet the child’s present and future developmental needs;
(D) the quality of the child’s adjustment to the child’s present housing, school and community and the potential effect of any change;
(E) the ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent
(F) the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development;
(G) the relationship of the child with any other person who may significantly affect the child;
(H) the ability and disposition of the parents to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided; and (I) evidence of abuse. (Vermont Statutes – Title 15 – Section 664)
In Vermont, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.
Vermont Child Support Factors
Either or both of the parents may be required to pay child support, based on a consideration of the following factors: (1) the financial resources of the child; (2) the standard of living the child would have enjoyed if the marriage had not been dissolved; (3) the physical and emotional conditions and educational needs of the child; (4) the financial resources, needs, and obligations of both the non-custodial and the custodial parent; (5) inflation with relation to the cost of living; (6) the costs of any educational needs of either parent; (7) any travel expenses related to parent-child contact; and (8) any other relevant factors. Health insurance coverage for the child may be ordered to be provided. The court may require security or wage withholding. Every order of child support must be made subject to a wage assignment in the event of delinquency and require the payments to be made to the registry in the Office of Child Support, unless the situation falls under an exception to the rules shown in Vermont Statutes Annotated; Title 33, Section 4103. There are official child support guidelines available from the Vermont Department of Human Services which are presumed to be correct, unless they are shown to be unfair under the circumstances. There is an official child support computation worksheet available. [Vermont Statutes Annotated; Title 15, Sections 653 to 669, 757, and 781 to 783, Title 33, Section 4103, and Vermont Rules for Family Proceedings; Rule 4].
Vermont child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Vermont child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Vermont child support deviation factors that may be applicable to the situation.
Vermont Grandparent’s Rights
Grandparent Rights to Visitation: Visitation may be granted when an action for custody or visitation is or has been considered by the court, or if the grandparent’s child is dead, physically or mentally incompetent, or has abandoned the child. The court must find that the visitation is in the child’s best interest after considering the statutory factors relating to best interest. Title 15, Section 1011 (15 V.S.A. § 1011 et seq.).
When Adoption Occurs: Visitation rights terminate unless the child is adopted by a stepparent or a relative of the child.
Child Custody Statutes: Best interest of the child considering: (1) relationship of the child and each party, and each party’s ability and disposition to provide love, affection and guidance; (2) ability and disposition to provide food, clothing, medical care, other material needs, and a safe environment; (3) ability and disposition to meet the child’s present and future developmental needs; (4) quality of the child’s adjustment to present housing, school and community, and potential effect of a change; (5) ability and disposition to foster a continuing relationship with the other party; (6) quality of the child’s relationship with the primary care giver; (7) child’s relationship to other significant persons; and (8) ability and disposition of the parties to make joint decisions. 15 V.S.A. §665.
Parents May Choose: Yes
Vermont Military Divorce Laws
A Vermont military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection From Vermont Divorce Proceedings
There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Vermont court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Vermont court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
Residency and Filing Requirements
The typical military divorce filing requirements are as follows:
- You or your spouse must reside in Vermont
- You or your spouse must be stationed in Vermont
Grounds for Vermont Military Divorce
The grounds for a military divorce in Vermont are the same as a civilian divorce.
Dividing the Property
Along with the normal Vermont property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
Child Support and Spousal Support
In Vermont, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Vermont child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.
Vermont Child Support Guidelines
The Vermont child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Vermont child support order.
Vermont Child Support Guidelines
Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: YES
Secondary Education Support: NO
UIFSA: YES
* The Income Shares Model: Vermont child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Vermont child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.
For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.
As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.
For example: It is not common for a custodial parent to be paying support to a non-custodial parent.
Vermont Child Support Definitions
(1) “Available income” means gross income, less
(A) the amount of spousal support or preexisting child support obligations actually paid;
(B) the actual cost to a parent of providing adequate health insurance coverage for the children who are the subject of the order;
(C) FICA taxes (7.65% for regular wage earners and 15.3% for self-employed, or any amount subsequently set by federal law as FICA tax);
(D) state and federal income taxes, calculated as follows:
(i) for custodial parents, using the standard deduction, head of household filing status and exemptions for the parent and for each of the children who are the subject of the order (not to exceed five children), plus earned income tax credits if applicable;
(ii) for noncustodial parents, using the standard deduction, single filing status and one exemption.
(iii) for parents who share custody as defined in section 657 of this title, using the standard deduction, head of household filing status and one exemption for the parent and an equal share of the
exemptions attributable to the children who are the subject of the order, plus earned income tax credits if applicable.
(E) in cases where a child is in the custody of the department of social and rehabilitation services:
(i) the additional housing costs necessary to allow for the child’s return where the department of social and rehabilitation services plan is for reunification with the parents;
(ii) family court or department of social and rehabilitation services mandated out-of-pocket expenses necessary to comply with the child’s case plan.
(2) “Child care costs” means the actual child care costs reasonably incurred by a parent on behalf of the children due to employment or employment related education. Monthly child care costs shall be calculated based on an annualized amount. Child care costs shall not include the amount of child care subsidies or child care tax credits if available.
(3) “Court” means the court with jurisdiction over a child support proceeding.
(4) “Extraordinary expenses” means any extraordinary medical or education expenses, including expenses related to the special needs of a child, incurred on behalf of involved children. Extraordinary medical expenses shall include but not be limited to uninsured annual medical expenses in excess of $200.00.
(5) “Gross income” means actual gross income of a parent.
(A) Gross income shall include:
(i) income from any source, including, but not limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and spousal support actually received. Income at the current rate for long-term United States Treasury Bills shall be imputed to non-income producing assets with an aggregate fair market value of $10,000.00 or more, other than a primary residence and not more than $15,000.00 of the value of a motor vehicle;
(ii) expense reimbursements or in-kind payments received by a parent in the course of employment or self-employment or operation of a business if they reduce personal living expenses;
(iii) the potential income of a parent who is voluntarily unemployed or underemployed unless
(a) the parent is physically or mentally incapacitated; or
(b) the parent is attending a vocational or technical education program related to current employment, or a job training program sponsored by the department of employment and training, the department of economic development, or the agency of human services; or
(c) the unemployment or underemployment of the parent is in the best interest of the child;
(iv) gross receipts minus ordinary and necessary expenses where a party is self-employed or derives income from proprietorship of a business, joint ownership of a partnership or a closely held business operation; and rents, minus ordinary and necessary expenses. In determining ordinary and necessary expenses, the court may exclude amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses. The court may also determine that other business expenses are inappropriate for determining gross income for purposes of calculating child support.
(B) Gross income shall not include the amount of money received from means tested public assistance programs, including but not limited to, aid to families with dependent children, supplemental income, food stamps, and general assistance.
(6) “Parental support obligation” means the proportion of total support obligation a parent is ordered to pay in money as child support.
(7) “Self-support reserve” means the needs standard established annually by the commissioner of social welfare which shall be an amount sufficient to provide a reasonable subsistence compatible with decency and health. The needs standard shall take into account the available income of the parent responsible for payment of child support.
(8) “Total support obligation” means the sum of money determined by adding (i) amounts derived from the support guideline appropriate to the parties’ available income, (ii) child care costs, and (iii) extraordinary expenses.
Vermont Divorce Definitions
This collection of definitions will help clarify some unique characteristics to the Vermont Divorce laws, process and paperwork which is filed with the court.
Filing Party Title:
Plaintiff
The spouse who will initiate the Divorce by filing the required paperwork with the court.
Non-Filing Party Title:
Defendant
The spouse who does not initiate the Divorce with the court.
Court Name:
State of Vermont, Family Court, _____________ County
The proper name of the court in which a Divorce is filed in the state of Vermont. Each jurisdictional court typically has a domestic relations or a family law department or division.
The state run office devoted to enforcing existing child support orders and collecting any past due child support.
Document Introduction:
In Re the Marriage of
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.
Initial Divorce Document:
Complaint for Divorce
The title and name of the legal document that will initiate the Vermont Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.
Final Divorce Document:
Decree of Divorce
The title and name of the legal document that will finalize the Vermont Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.
Clerk’s Office Name:
County Clerk’s Office of the Family Court
The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
Legal Separation:
The grounds for legal separation (divorce from bed and board) are: (1) living separate and apart without cohabitation for 6 months; (2) adultery; (3) imprisonment for 3 years or more or for life; (4) willful desertion for 7 years; (5) cruel and inhuman treatment of intolerable severity; (6) incurable mental illness; and (7) gross neglect. Either spouse must be a resident of Vermont for 6 months before filing for legal separation. [Vermont Statutes Annotated; Title 15, Sections 551, 555, and 592].
Property Distribution:
Equitable Distribution
The applicable Vermont law that will dictate how property and debt is to be divided upon Divorce.
