More Categories

Rule 4.0 – Divorce and Other Family Proceedings

May 14, 2021 | Family Law, Vermont

(a) Applicability of Rules.

(1)In General. This rule applies to actions for divorce, legal separation, dissolution of a civil union, affirmation or annulment of marriage, parentage, desertion, and nonsupport, except as modified or supplemented by Rule 4.1 for cases involving minor children, Rule 4.2 for motions after judgment, and Rule 4.3 for certain special procedures.
(2)Rules of Civil Procedure.

(A) The Vermont Rules of Civil Procedure apply to actions under this rule and Rules 4.1–4.3 except as provided in (B) and (C) and as otherwise provided in specific rules.
(B) V.R.C.P. 16.3 (Alternative Dispute Resolution) and 79.1 (Appearance and Withdrawal of Attorneys) do not apply to actions under this rule and Rules 4.1–4.3.
(C) V.R.C.P. 58 (Entry of Judgment) applies to actions under this rule and Rules 4.1–4.3, except that a judgment need not be set forth in a separate document.
(b)Complaint; Commencing an Action; Service; Parties.

(1)Complaint. The complaint must:

(A) state facts establishing the jurisdiction of the family division;
(B) state the particular facts of the claim and the relief sought;
(C) be signed and sworn to by the plaintiff, if of sound mind and of the age of 16 years;
(D) state the residence of the defendant or allege that it is not known by the plaintiff and cannot be ascertained by reasonable diligence;
(E) have attached a report in the form prescribed by the Commissioner of Health providing statistical data about the parties; and
(F) state whether any divorce, annulment, abuse prevention complaint, or separate support proceedings have been filed by either party against the other and whether any orders have been issued in those proceedings. A copy of any order issued, if available, must be filed with the complaint.
(2)Commencing an Action; Service.

(A) The action must be commenced in accordance with V.R.C.P. 3. In any published notice of an action for divorce in which adultery is a ground, the words ‘a certain person named in the complaint” must appear in place of the name of any alleged paramour of the defendant.
(B) Service may be made by any of the following methods:

(i) The defendant may be served personally by any method provided in V.R.C.P. with a summons and complaint and the notice of hearing signed by the clerk.
(ii) The summons, complaint, and notice of hearing may be served by mailing them to the defendant at one or more of the addresses supplied by the plaintiff or by the defendant or otherwise, by certified mail, return receipt requested and delivery restricted to the addressee. The plaintiff must pay the expense.
(iii) If certified mail is refused by the defendant, the clerk may serve the notice of hearing, summons, and complaint by mailing them to the defendant by ordinary first-class mail and by certifying that such service has been made.
(iv) Service may be made by publication by order of the court, as provided in V.R.C.P. 4(g).
(v) At any time, service may be made by delivering to the defendant by any method chosen by the plaintiff the summons and a request that the defendant waive service by any other method. The summons and request must be accompanied by the complaint, the notice of hearing, and a waiver of service form. The defendant must sign and date the waiver of service and return it to the court no later than 21 days from the date the documents were delivered, or 60 days from that date if the documents and requests are delivered to the defendant outside a state or territory of the United States. If the defendant answers the complaint, the defendant must do so within 21 days of the date that the defendant signed the waiver or, if the waiver is undated, within 21 days of the date that the waiver is filed with the court. Failure to comply with a request to waive service may result in the imposition of costs, including reasonable attorney’s fees, against the defendant for expenses incurred in effecting service by another means.
(C) Real or personal property may be attached, or trustee process may be used, in connection with the commencement of an action for divorce.
(3)Parties.

(A) Notwithstanding the provisions of V.R.C.P. 17(b), a minor who is a party to a proceeding need not be represented by next friend, guardian ad litem, or other fiduciary, unless the court so orders.
(B) When any party to an action to which this rule applies has been authorized to proceed in forma pauperis under V.R.C.P. 3.1(b), and during the course of the proceeding and prior to a final judgment, the court determines that the applicant has the ability to pay all or a part of the waived fee, the court may order either party to reimburse the state for the fees waived or costs paid. If the applicant fails to pay the fee within a reasonable time, the court may dismiss the proceeding. The court may assess the waived fees and costs as a charge against the marital assets if the court finds that the marital assets are sufficient for the support of the parties and any dependent children. If such reimbursement is not made voluntarily upon demand, the clerks are authorized to proceed by execution or action to recover all fees or costs that any party becomes liable to reimburse under this subparagraph.
(c)Proceedings Prior to Judgment.

(1)Civil Rule Not Applicable. V.R.C.P. 65 (Injunctions) does not apply to proceedings for orders under this subdivision.
(2)Interim Domestic Orders. Upon commencement of a proceeding under this rule and Rule 4.1, the court will issue an interim domestic order on a form to be prepared by the Court Administrator. The order may include any or all of the following provisions:

— Orders concerning removal of personal property from the family residence;
— Prohibitions on each party’s interference with the personal liberty of the other;
— Orders prohibiting the selling, concealing, or otherwise disposing of real or personal property of the parties after the proceeding’s commencement;
— Orders requiring the forwarding or delivering of the parties’ mail;
— Orders concerning the continuation of credit cards or credit accounts of each party;
— Orders concerning the incurring of debt by the parties after the proceeding’s commencement;
— Orders requiring the continuation of the insurance policies, including health insurance, maintained by either party for the benefit of the other or any minor children;
— Orders prohibiting the removal of the parties’ minor children from the state, except for brief temporary absences;
— Orders permitting the use of bank accounts for usual and customary living and business expenses;
— Orders prohibiting derogatory remarks about the other parent in the presence of minor children.

An interim order under this section does not change any interim or final abuse order that already may be in effect. Those orders remain in full effect. Either party, on motion and notice, may object to and obtain a hearing on any provision of the interim order.

(3)Temporary Relief. At any time after the proceeding’s commencement, either or both parties may apply for temporary relief. The court may make any orders pending final hearing that the court would be authorized to make upon final hearing except as provided in paragraph (4).
(4)Actions Other Than Parentage. In actions other than parentage actions:

(A) The court may change title of real or personal property without the parties’ consent only for good cause.
(B) At any time after the proceeding’s commencement, on motion of either party the court may enjoin the other party from conveying, concealing, or interfering with the property or clothing of the moving party or of that patty’s minor children or from interfering with the possession, use, and control of any property in the possession of either patty and claimed by the other.
(C) The court may make any mandatory or other orders in respect to the possession, control, or use of the real and personal property of either spouse, of the minor children, or of the couple jointly, that may be just and equitable.
(D) The court may enjoin either party from conveying or removing from the state any portion of his or her property that the court finds may be necessary to secure the maintenance which may be decreed, or the rights of either party, or the performance of any order or decree that may be made during the action’s pendency.
(E) The court may issue a temporary order for spousal maintenance.
(5)Status Conference: Scheduling: Discovery Orders. Subject to the provisions of Rule 4.1(c) if parental rights and responsibilities are involved:

(A) Unless requested earlier by a party or scheduled by the court, a status conference will be held when the action is ripe for final hearing. A superior judge assigned to the family division in the unit in which the complaint was filed will preside over the status conference. The conference may be held by telephone, in a courthouse in another county, and as part of any other duly noticed hearing held by the superior judge. The court may hold an uncontested final hearing immediately upon the conclusion of, or in lieu of, a status conference.
(B) At the status conference the judge will determine whether the matter is contested or uncontested. If the matter is contested, the judge will:

(i) schedule a hearing date or a further status conference;
(ii) inquire whether issues relating to infidelity, physical abuse, sexual abuse, child abuse or neglect as defined in 33 V.S.A. § 4912, or parental unfitness will be raised at the hearing. An unfit parent is defined, for purposes of this rule, as a parent who is demonstrably incapable of providing an appropriate home for his or her child;
(iii) determine whether or not expert witnesses will be called to testify;
(iv) issue orders authorizing or compelling discovery under subdivision (g) of this rule and Rule 4.1(b); and (v) issue any other order appropriate under V.R.C.P. 16.
(C) Unless the court orders otherwise, parties represented by counsel need not be present at a status conference.
(d)Hearing Required; Exceptions; Appearance by Parties.

(1) The court will enter a final judgment in an action for divorce, legal separation, dissolution of a civil union, or parentage only after hearing, unless the judgment is:

(A) a dismissal for want of prosecution; or
(B) entered in accordance with subdivision (e) of this rule.
(2) The hearing may be held without notice to the defendant if the defendant has not entered a written appearance as provided in Rule 15(a).
(3) Even if the defendant does not file an answer, the defendant may, upon entering a written appearance as provided in Rule 15(a), be heard on issues of parental rights and responsibilities, spousal maintenance, child support, maintenance supplement, property distribution, and counsel fees. If the defendant or any other party joined in the proceeding files a responsive pleading, that party must provide under oath the information required by the Uniform Child Custody Jurisdiction and Enforcement Act, 15 V.S.A., chapter 20.
(4) The court may exclude from the hearing all persons except officers of the court and parties in interest.
(e)Exception for Uncontested Proceedings.

(1) In any action for divorce, legal separation, or dissolution of a civil union, the court may grant a final judgment without hearing where the record demonstrates that the action is not for parentage, desertion, or nonsupport and where the following documents have been filed with the court sufficiently before a scheduled final hearing:

(A) A request signed by both parties that the court proceed without final hearing.
(B) A stipulation outlining an agreement executed by both parties that sets out the terms and conditions of resolution for all issues in the divorce action. The stipulation must also specifically state the facts upon which the court may base a decree of divorce, legal separation, or dissolution of a civil union and which bring the matter within the court’s jurisdiction and that:

(i) the terms and conditions may be incorporated by the court in its final order;
(ii) both parties are aware of their right to appear before the court for final hearing and are, by the execution of the agreement, knowingly and voluntarily waiving their right to appear in person before the court;
(iii) neither party is the subject of a final abuse prevention order in a proceeding between the present parties;
(iv) each party is entering the stipulation freely and voluntarily; and
(v) the parties have exchanged all financial information, including, but not limited to, income, assets, and liabilities.
(C) A proposed final order containing the terms and conditions of the parties’ agreement. The proposed final order will be approved as to form by both parties’ attorneys, if any.
(2) Upon the filing of all documents required under paragraph (1), the court may grant and enter the final order without a hearing after the court has reviewed all of the documents and has determined that the terms and conditions of the parties’ agreement are fair and equitable. If the court determines that the agreement of the parties is not fair or equitable, or for any other reason, the court may order a final hearing.
(f)Counterclaim. A counterclaim may state any cause within the jurisdiction of the family division, including a demand for divorce or annulment of marriage, and may be filed by leave of the court at any time prior to judgment. In an action for divorce, defendant’s failure to assert counterclaims for divorce or nullity of marriage or any other claim will not bar assertion of those claims in a subsequent action.
(g)Discovery. Discovery may be taken as in civil actions, except as follows:

(1) The court may order discovery of any matter discoverable under this subdivision, whether or not a party has requested such discovery.
(2) Depositions, physical examinations, and mental examinations may be taken only by order for good cause, and subject to Rule 5, except that depositions may be taken without court order on issues of child support, spousal maintenance, and property division as in civil actions.
(3) A proposed final order containing the terms and conditions of the parties’ agreement. The proposed final order will be approved as to form by both parties’ attorneys, if any. Interrogatories may be served and used only as follows:

(A) A party may through written interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions as to which the expert is expected to testify and a summary of the grounds for each opinion.
(B) A party may not serve on any other party more than 25 additional interrogatories, including all discrete subparts, without leave of court or written stipulation. Leave to serve a greater number of interrogatories will be granted only for information that was not, or could not have been, included in a timely filed Form 813 and to the extent consistent with the principles of V.R.C.P. 26(b)(l).
(C) Interrogatories, requests to admit, and requests to produce may only be obtained on an issue of infidelity, physical abuse, sexual abuse, child abuse, or neglect as defined in 33 V.S.A. § 4912, or parental unfitness by order for good cause.
(4) Following final judgment in any proceeding under this rule, in response to a party’s request made no more often than once per calendar year (or tax year, if different), a party must furnish the information required by paragraph (6) and Rule 4.1(b)(4). When a motion to modify is filed, parties must file affidavits and documents pursuant to paragraph (6) and Rule 4.1(b)(4), regardless of prior disclosures made during that calendar year. Failure to comply will subject a party to the sanctions set forth in 15 V.S.A. § 662 and V.R.C.P. 37.
(5) A party may request that tax records or other private information be sealed by filing a motion for protective order under V.R.C.P. 26(c).
(6)Certificate or Affidavit of Income and Assets.

(A) In any action subject to this rule in which a party is not, or may not subsequently be, obligated to pay child support, the parties must file a certificate, subject to the obligations of V.R.C.P. 11, that they have disclosed to each other all financial information, including, but not limited to, income, assets, and liabilities; but on order of the court, each party must file an affidavit of income and assets. The certificate must be filed on the earlier of the following dates: 30 days after the service of the complaint or on the date of the case management conference or, if no conference is scheduled, at least 7 days before the date of the first-scheduled court appearance. The affidavits must be filed on the date set in the court’s order requiring the filing.
(B) An affidavit filed pursuant to subparagraph (A) must be accompanied by:

— that party’s pay stubs for the four most recent pay periods in which employment income was received, if any;
— monthly income and expense statements or equivalent documents covering the period following a self-employed person’s last-filed income tax return; and
— documentation of all other income received during the period following any person’s last filed income tax return (including social security, workers’ compensation, unemployment compensation, disability, and pensions).

On or before the date when the affidavit must be filed, the parties must exchange tax returns for the two most recent years in which returns were filed, together with all schedules and other documentation that were submitted to the Internal Revenue Service.

Vt. R. Fam. Proc. 4.0

Adopted Aug. 25, 2016, eff. Dec. 5, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018.
Former Rule 4 was abrogated and replaced by Rules 4.0–4.3, eff. Dec. 5, 2016.

Reporter’s Notes-2018 Amendments

Rule 4.0 is amended to change its 20- and 5-day time periods to 21 and 7 days, consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter’s Notes to simultaneous amendments of V.R.F.P. 1.