When a couple divorces in Vermont, they must divide their marital property equitably. If they’re not able to negotiate a property settlement, they’ll have to ask the court to divide the marital property. The rule about equitable division doesn’t mean the division must be equal, but the court must start by presuming that marital property will be split equally between the spouses. From there, a set of factors will be considered that may result in a shift in the balance from one spouse to the other. Ultimately, the result must be a fair division that reflects the past efforts and future needs of both spouses.
In a divorce, the distribution of property depends on which property belongs to the marriage – marital property – and which property belongs to each of the two spouses – separate property.
Generally, marital property is property acquired or earned during the marriage. Property used for the benefit of the marriage, even if it started out as separate property, may also be considered marital property.
Separate property includes anything that belonged only to one spouse before marriage and was kept separate throughout the marriage. It could also include property given only to one spouse during the marriage, like a gift from the husband’s father to the husband alone or an inheritance upon the death of the wife’s great aunt to the wife alone.
The most common types of property divided at divorce are real property like the family home, personal property like jewelry and clothing, and intangible property like income, dividends, and benefits. All of the marital property must be divided between the spouses when the marriage ends. In Vermont, the court may also include the separate property of one or both spouses if it makes the total division more equitable. Marital debts must also be divided.
To determine whether the presumption of equal division should be adjusted, the court evaluates a variety of factors, including the spouses’ monetary and non-monetary contributions to the acquisition of assets. Monetary contributions to the marriage include property (other than separate property), any appreciation in the value of that property, income, and the use of separate funds for the benefit of the marriage. Non-monetary contributions include homemaking, child-care services, and other unpaid work. The court will also consider the length of the marriage, the ages and health of the spouses, and their respective occupations or employable skills. If one spouse contributed to the education, training, or increased earnings of the other spouse, those efforts will not be ignored. Additional factors are whether a spouse prefers a property interest instead of or in addition to a spousal-maintenance payment, and if there are children, whether the spouse with custody should receive the family home or at least the right to live in it.
Throughout the process, the divorcing spouses will have opportunities to agree between themselves on what is a fair division. If they decide, for example, to sell the house and split the proceeds, let the wife keep her retirement benefits, and give the husband the vacation cabin, then they can submit a separation agreement to the court. Usually, a court will accept this type of agreement without further involvement. On the other hand, if the spouses cannot work together, or if there are certain items of property that they cannot agree on, then the court will decide for them.
The court will consider whether either spouse should receive spousal maintenance (alimony) after the equitable division of property is complete. Spousal maintenance is a payment from one spouse to the other to help the recipient spouse maintain a lifestyle as close as possible to the marital standard of living. In addition, the court will look at the recipient spouse’s financial resources, age, physical and emotional condition, whether education or training is needed before that spouse can find employment, and the ability of the obligated spouse (the one who pays the support) to make payments.