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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

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, service in the armed forces, shall not affect the above requirements, provided the person has otherwise retained residence in this state. Complaints for divorce for any cause and for affirming or annulling the marriage contract shall be brought in the county in which the parties or one of them resides. Superior courts shall hear and determine complaints for divorce and for affirming or annulling the marriage contract and may issue process of attachment, execution and other proper process necessary for the dispatch and final determination of such causes.

LEGAL GROUNDS FOR DIVORCE:

A divorce from the bond of matrimony may be decreed:

1. For adultery in either party;

2. When either party is sentenced to confinement at hard labor in prison for life, or for three years or more, and is actually confined at the time of the bringing of the libel;

3. For intolerable severity in either party;

4. For wilful 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. On the ground of incurable insanity of either party, as provided for in sections 631-637 of this title;

7. When a married person has lived apart from his or her spouse for six consecutive months and the court finds that the resumption of marital relations is not reasonably probable. [Based on Vermont Statutes - Title 15 - Chapter 11: Subchapter 2 - Section 555]

LEGAL SEPARATION: A legal separation forever or for a limited time may be granted for any of the causes for which an absolute divorce may be granted. [Based on Vermont Statutes - Title 15 - Chapter 11: Subchapter 2 - Section 555]

PROPERTY DISTRIBUTION: Vermont is an equitable distribution state, meaning that the marital estate is divided equitably as compared to equally. Title to the property, whether in the names of the husband, the wife, both parties, or a nominee, shall be immaterial, except where equitable distribution can be made without disturbing separate property. In making a property settlement the court may consider all relevant factors, including but not limited to: (1) the length of the marriage; (2) the age and health of the parties; (3) the occupation, source and amount of income of each of the parties; (4) vocational skills and employability; (5) the contribution by one spouse to the education, training, or increased earning power of the other; (6) the value of all property interests, liabilities, and needs of each party; (7) whether the property settlement is in lieu of or in addition to maintenance; (8) the opportunity of each for future acquisition of capital assets and income; (9) the desirability of awarding the family home or the right to live there for reasonable periods to the spouse having custody of the children; (10) the party through whom the property was acquired; (11) the contribution of each spouse in the acquisition, preservation, and depreciation or appreciation in value of the respective estates, including the non-monetary contribution of a spouse as a homemaker; and (12) the respective merits of the parties. [Based on Vermont Statutes - Title 15 - Chapter 11: Section 751]

ALIMONY/ SUPPORT: The court may order either spouse to make maintenance payments, either rehabilitative or permanent in nature, to the other spouse if it finds that the spouse seeking maintenance: (1) lacks sufficient income, property, or both, including property apportioned in accordance with section 751 of this title, to provide for his or her reasonable needs; and (2) is unable to support himself or herself through appropriate employment at the standard of living established during the marriage or is the custodian of a child of the parties.

The maintenance order shall be in such amounts and for such periods of time as the court deems just, after considering all relevant factors including, but not limited to: (1) the financial resources of the party seeking maintenance, the property apportioned to the party, the party's ability to meet his or her needs independently, and the extent to which a provision for support of a child living with the party contains a sum for that party as custodian; (2) the time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) the standard of living established during the marriage; (4) the duration of the marriage; (5) the age and the physical and emotional condition of each spouse; (6) 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 (7) inflation with relation to the cost of living. [Based on Vermont Statutes - Title 15 - Chapter 11: Section 752]

NAME CHANGE: Upon granting a divorce to a woman, unless good cause is shown to the contrary, the court may allow her to resume her maiden name or the name of a former husband. The court may change the names of the minor children of divorced parents when application for that purpose is made in the complaint for divorce. [Based on Vermont Statutes - Title 15 - Chapter 11: Subchapter 3 - Section 558 and 559]

CHILD CUSTODY: The court shall not apply a preference for one parent over the other because of the sex of the child, the sex of a parent or the financial resources of a parent. The court may order parental rights and responsibilities to be divided or shared between the parents on such terms and conditions as serve the best interests of the child. When the parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent. In making an order under this section, the court shall be guided by the best interests of the child, and shall consider at least the following factors:

1. 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;

2. 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;

3. the ability and disposition of each parent to meet the child's present and future developmental needs;

4. the quality of the child's adjustment to the child's present housing, school and community and the potential effect of any change;

5. the ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, including physical contact, except where contact will result in harm to the child or to a parent;

6. the quality of the child's relationship with the primary care provider, if appropriate given the child's age and development;

7. the relationship of the child with any other person who may significantly affect the child;

8. 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

9. evidence of abuse, as defined in section 1101 of this title, and the impact of the abuse on the child and on the relationship between the child and the abusing parent. [Based on Vermont Statutes - Title 15 - Chapter 11: Subchapter 3 - Section 665]

CHILD SUPPORT: Vermont bases child support on the Income Shares Model. Except in situations where there is shared or split physical custody, the total child support obligation shall be divided between the parents in proportion to their respective available incomes and the noncustodial parent shall be ordered to pay, in money, his or her share of the total support obligation to the custodial parent. In any proceeding to establish or modify child support, the total child support obligation for the children who are the subject of the support order shall be adjusted if a parent is also responsible for the support of additional dependents who are not the subject of the support order.

The total support obligation shall be presumed to be the amount of child support needed. Upon request of a party, the court shall consider the following factors in respect to both parents: (1) The financial resources of the child; (2) The financial resources of the custodial parent; (3) The standard of living the child would have enjoyed had the marital relationship not been discontinued; (4) The physical and emotional condition of the child; (5) The educational needs of the child; (6) The financial resources and needs of the noncustodial parent; (7) Inflation; (8) The costs of meeting the educational needs of either parent, if the costs are incurred for the purpose of increasing the earning capacity of the parent; (9) Extraordinary travel and other travel-related expenses incurred in exercising the right to parent-child contact; (10) Any other factors the court finds relevant.

The court may order support to be continued until the child attains the age of majority or terminates secondary education whichever is later. If the parties agree, the court may include in the child support order an additional amount designated for the purpose of providing for postsecondary education.

HOW TO ENFORCE CHILD SUPPORT IN VERMONT – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have chosen to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF VERMONT:
http://www.leg.state.vt.us/statutes/chapters.cfm?Title=15