PROPERTY DIVISION
How Will Your Property be Divided?
Property division means that the court will divide your assets and liabilities between the two of you in your divorce. How will they be divided? Vermont is an “equitable property” state. This means that the rule of thumb is that everything you own, and everything you owe, should be divided in half. What sorts of things are divided? The house, any other real estate you own, your vehicles, your bank accounts, your retirement accounts, your credit card debt, etc. are all divided. The judge’s basic job is to account for everything and split it up in such a way that each party walks away with an equal net worth.
Does it matter whose name the asset or debt is in? For example, what if the house is in your spouse’s name – will it still be part of the division? Yes. The divorce divides everything you have, no matter whose name it is in, or who brought it to the marriage, or who earned the money to pay for it.
That’s the rule of thumb.
The Role of the Judge
The judge has some flexibility, however. The “equitable” part of the rule means that the division should be fair, even if it’s not equal. What this means in practice is that the longer your marriage lasted, the more equal the division will be. If one of you owned the house at the time of the marriage, and you’ve only been married for one year, the judge will probably try to put you back in pretty much the same position you were in before the marriage. Whoever owned the house before the marriage will probably get to keep it. But if you’ve been married for fifteen years, it probably won’t matter.
By the way, although there isn’t a rule stating this, most judges treat fifteen years as a “long term” marriage. Anything over that amount of time, and the fairness factors are probably not going to make any difference. You can expect a 50/50 split.
Exceptions to the 50/50 Split
But some things are more likely to be divided based on where they came from and who will get the benefit of them. Student loans, for example, almost always go with the person who got the education. You can imagine why this is so – if you borrowed money to increase your own education, you’re the one who will benefit from that education in the future. A judge will likely think it’s only fair that you get the debt for that schooling, too. Another frequent item that goes with the person who received it is a gift or inheritance from your family. Again, there isn’t a hard and fast rule on this, but if your family gave or left you something fairly recently (in the last few years especially), most likely you will get to keep it if you ask for it.
The Role of Third Parties
At the end of the day it’s important to remember that the Vermont Family Court only has power to enforce its decision between the two of you. If someone else is not part of the proceeding, like a bank or credit card company, that someone else doesn’t care that the court order says your former spouse must pay for it. If your name is on the mortgage, for example, and it doesn’t get paid, the bank can come after you even though the Family Court ordered your former spouse to pay for it. If your former spouse doesn’t pay for it, you will have to go back to Family Court to enforce the order. If your spouse is awarded the house, and you are still on the mortgage, make sure you get a provision in the order stating that your spouse has to pay off that mortgage within six months or sell the house.
One final note: once the divorce order is final, the judge usually cannot change the property division part of the order. So, unlike other parts of the divorce, you cannot go back to court if the property division seems unfair after the fact! You’re stuck with it.