By Helen Toor
The Family Division of the Superior Court handles several kinds of cases, including divorce, “parentage” and juvenile cases. Today, let’s discuss divorce cases.
If you and your spouse have reached an agreement about dividing your property and any custody arrangements, you can file a “stipulation” with the court. Otherwise, one party will file the divorce “complaint” and the other must file what is called an “answer.” The complaint must list the grounds for divorce. In Vermont, most divorces are what some refer to as “no fault” divorce. That means that no one has to prove that the other did anything wrong to get the divorce. Instead, living apart for six months or more is a basis for granting a divorce.
There are many issues to resolve in a divorce. These include dividing up property, whether one person will pay any support (what used to be called alimony) to the other and for what period of time, and who will get to stay in the home. If one party owns a business, that may have to be valued by an expert and a decision made about whether the other party is entitled to some portion of its value. If there are children under 18, there will have to be a custody order determining where the children will live and how much time each parent will have with them (“parent-child contact”), as well as who gets to decide major things like what school the children attend or what medical care they will receive. There must also be a child-support order stating whether one party must make payments to the other to help pay for the children’s expenses and how much those payments will be.
Even if both parents agree on all of these issues, judges are required to consider the best interests of the children. Sometimes that means they will question the parents about why they are proposing a certain schedule or other arrangement for the children. A judge can reject an agreement if he or she believes it is not good for the children, although it is rare that we do so.
There are several timeframes that restrict how soon the divorce can be finalized. For example, at least one party has to have lived in Vermont for at least a year before the divorce can be granted, and if there are children, the divorce cannot be granted until at least six months have passed since the case was filed.
If the parties can’t reach an agreement, it may be helpful to seek the assistance of a mediator who specializes in family law. Mediators are skilled at trying to find common ground between the parties and working out at least some of the disputes. However, if the parties end up going to court with no agreement, the first thing that will get scheduled is usually a “case manager’s conference.” The case manager is a court employee who will explain the process and attempt to clarify what is in dispute and whether some issues can be agreed upon. If disputes still remain, the case will end up before a judge for trial.
When hearing the evidence in a divorce trial (there are no juries in family court, although there may be assistant judges), a judge must apply the law in Title 15 of the Vermont Statutes in deciding how to divide property and award custody. There is no set rule in Vermont about what percentage of property goes to each party. Instead, when dividing property the judge is required to consider such things as the length of the marriage, the parties’ sources of income, their employability, the contribution of one party to the other’s education and training, and where the property originated.
People are often surprised to learn that everything owned by either party is considered joint property for purposes of a divorce, no matter whose name it is in. However, things like family heirlooms are usually awarded to the person whose family they came from. If those heirlooms are worth a lot, however, some other property might be awarded to the other spouse to even out the values.
Support from one party to the other is also governed by a number of criteria that are set forth in the law, including the financial resources of each party and their employability.
Custody issues require that the judge consider a number of things in deciding the best interests of the child. Those include the relationship of the child to each parent, how well each parent will be able to address the child’s future developmental needs, how the child is adjusted to his or her current living situation, who has been the child’s primary care provider and so on.
Once the custody order is issued, child support is calculated based on a formula set forth in the law. Child support is usually done by a different court official, a magistrate.
As soon as a divorce case is filed, a standard order is issued that limits both parties from transferring assets, cancelling insurance and so on. There are also temporary orders that get issued early in the case with regard to such things as custody arrangements and child support during the time the case is pending in court.
Use a lawyer
As always, because the law is complicated, it is wise to hire a lawyer if you are considering a divorce. This is true even if you have an agreement. There may be issues that will create problems down the road, such as unforeseen tax consequences or problems when one parent decides they want to move across the country with the children. Just having an agreement reviewed should not be terribly costly and may save you future headaches.
Helen Toor is a superior court judge serving on the civil court bench in Chittenden County. She was appointed to the bench in 1999 by Gov. Howard Dean. She writes occasional columns for The Charlotte News on matters of Vermont criminal and civil law. She lives in Charlotte.