Fault in Divorce (Property Division and Alimony/Maintenance)

About a decade ago, a judge said something to me along the lines of, “I don’t need to know the reason you are divorcing because if you two were getting along then you wouldn’t be here.” I have generally seen that thought process bear out across counties.  While technically there are seven different grounds for divorce, almost every divorce is based the last ground, which is why we call Vermont a “no fault” state. In fact, the court’s own forms for beginning a divorce case do not list all seven grounds, they just list the seventh ground with an option for “other” below it.

This means that typically infidelity or unkindness is not going to factor into a judge’s decision when dividing property or awarding alimony (which we call “maintenance” in Vermont). Sometimes, it might make a difference on the margins, but judges often avoid faulting one side or they blame both parties. If judges feel they can avoid the issue, they do.

Instances where I have seen it make more of a difference are where one side relied to their detriment on the other party being faithful. For example, one side starts a new career or moves far away from family in reliance of the continued support of their partner, only to discover shortly after the change that their partner wants to end the marriage.

Issues of domestic violence, severe alcoholism, and extreme gambling can also be relevant when considering awarding the house and credit card debt. However, very often clients come to me and explain that their financial situation is the result of the other party’s frivolous spending, which they tried for years to curb and the other side ignored. Usually in those situations, the party does not have the documentary evidence to support their assertions or the other side testifies that the expenses went to the benefit of the whole family. I have not seen a judge take such spending decisions into account. In other words, I have not seen a judge award a disproportionate amount of credit card debt to a party based on a finding that the debt was due to one party’s pattern of frivolous expenses. Still, this is not a hard and fast rule so there may be instances where such an argument is appropriate and persuasive to individual judges.