2018-01-11 / Letters

The State of Spousal Maintenance Reform in Vermont

To the Editor: The Northfield News
The Spousal Maintenance Task Force has submitted its report to the Legislature and there is still much work needed to be done to bring comprehensive reform to Vermont. The Task Force public hearing that was held on November 6, 2017 overwhelmingly showed that there are significant issues with Vermont’s statutes and case law that need to be clearly defined to meet the charge of Act 60, bringing consistency, predictability and fairness to all Vermonters going through the divorce process.
The recommendations by the Task Force are an important first step and their efforts are to be commended in spite of the short period of time to address this important and complex issue. However, additional time and effort is needed by the Legislature during the upcoming Legislative session to make spousal maintenance reform a reality for the Judiciary, lawyers and parties.
What is the definition of spousal maintenance and what is its purpose? Spousal maintenance should be the payment of support from one ex-spouse with the Ability to pay to an ex-spouse in Need of support for a reasonable length of time. This needs to be clearly defined in statute.
Not everyone can afford the expense of a lawyer to represent them when they are going through the divorce process in Vermont. In fact, between 60-70 percent of all divorces do not have representation by a lawyer. Shouldn’t our statues and case law be clear and concise so that those individuals that represent themselves have a clear understanding of what to expect when they begin the divorce process? That is not the case in Vermont today!
Under present statute and case law, judicial discretion is the presumptive factor when the courts issue a spousal maintenance award in Vermont, and other critical determining factors are secondary. With Judicial discretion there is no guarantee of protection for low income recipients to ensure they even will get spousal maintenance, much less a fair settlement. Instead, the courts should use the guidelines and factors found in Act 60 as the presumptive law and judicial discretion should be second, based upon a defined set of deviation factors, to protect those individuals that have extenuating circumstances that do not fit into Act 60’s guidelines. Judges need to clearly define why they are deviating from the guidelines. The law should be designed for the many, with a safety valve for the few, with more clarity and consistency.  If the parties know what to expect, they will have a greater ability to settle amicably without the conflict and legal fees that can decimate the parties and their children.
Spousal maintenance should end at remarriage or cohabitation and should be added to the list of factors found in Act 60. Remarriage ends spousal maintenance in every state except Vermont and many states are adopting its end at cohabitation. The courts can deviate when necessary but only in extreme circumstances with specific reasoning by the court.
Spousal maintenance payments should end at the national retirement age. Payors are looking for an end date and recipients are looking for financial security. The Task Force did recognize that the impact of this issue should be added to the list of factors; however, the guidelines in Act 60 still allows for permanent spousal maintenance for marriages over 20 years. More work needs to be done by the Legislature on this issue so that both parties can move on with their respective lives. Everyone deserves the right to retire.
The maintenance of the previous standard of living was discussed briefly by the Task Force, but not acted upon. This should be removed from the list of factors found in Act 60 to determine spousal maintenance in Vermont. In today’s society it is unrealistic to think that when one household becomes two that the standard of living will not be impacted by both parties. It is not fair when one party is financially crippled for a financial windfall for the other party. Spousal maintenance should be based upon need and ability to pay, and not be used as a reward or entitlement. Fairness and equity for both parties should be the rule of law.
Compensatory spousal maintenance is ill defined under current law in Vermont. The only way that equitable standards could be applied to all citizens in Vermont is by clear definition in the statute by the Legislature. 
The Task Force has recommended to the Legislature that the changes in Act 60 do not alone constitute a substantial change and would not by themselves allow for a modification to an existing spousal maintenance order. The Family Law Committee of the Vermont Supreme Court has been working on revising and developing changes to the existing statues for 9 plus years. Clearly, they recognized that there were serious issues that needed reform. Laws are being brought up to date after many decades of neglect to reflect current familial structures and changing times in society. When the law changes, it should change for all. Everyone deserves equal protection under the law.  We also believe representation from Vermont Alimony Reform and the Vermont Commision on Women should by represented in the Family Law Committee. 
Vermont Alimony Reform looks forward to continuing to work with the Legislature during the upcoming Legislative session to bring consistency, predictability and fairness to all parties involved in the divorce process. More work needs to be done and we are hopeful that the Legislature will make true spousal maintenance reform a reality in 2018.
Rick Fleming
President 
Vermont Alimony Reform

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