So far we have explained the basics of how the court's family division works, but there is still a lot more to know. Here are answers to some frequently asked questions.
Q. What if I need a divorce but we have no children?
A. Your divorce case will be simpler because you won't have to deal with children's issues. To get started, get the packet of forms for divorce without children. After you file and serve the papers, the case will go through the same steps as a divorce with children.
If you are the defendant in the case, file either a Notice of Appearance or Answer and Counterclaim within 21 days of being served with the court papers. The Notice of Appearance simply tells the Court that you are going to take part in the case. Mail a copy to the other party and file the original with the court. The Answer and Counterclaim is a longer form that you may want to file and serve on the other party. In it you ask the court for a divorce as well. If the other party decides to withdraw, you can still go forward on your counterclaim.
If you do not file an appearance or an answer then the court will assume that you don't care about how the case comes out. The court can go ahead and decide all of the issues in the case without giving you any more information.
Q. How is a parentage case (for unmarried parents) different from a divorce?
A. There are several differences between a parentage case and a divorce:
- The court will not decide any property issues. The only issues decided in a parentage case are custody, visitation and child support
- If either party disputes that the alleged father is the father of the child, you may have to go through a paternity test first
- The court will give a child support order but cannot give a spousal support order (alimony)
Q. What issues about the children have to be decided by the court or agreed to by both parties?
A. Here are the issues you need to think about and discuss with the other parent if you can:
- Where will the children be living? With one parent most of the time, or split time with both parents?
- When and under what conditions will the children be spending time with the other parent? If you have good reasons to ask for conditions on visits for safety reasons (conditions like supervision by another family member or no use of alcohol or drugs during visitation), raise those issues with the other parent, the case manager or the Judge.
- How much child support will be paid?
- How will you cover your child's health care expenses? Can either of you get medical insurance at work? Is your child eligible for public insurance (Dr. Dynasaur, Medicaid, VHAP, Green Mountain Care, or other state programs)? How will you share any unmet medical expenses?
- Are there any other child-related issues that you want to include in your agreement? For example, are religious upbringing, education, medical treatment, or grandparent visits an issue?
There are two types of custody or "Parental Rights and Responsibilities": physical (where the child lives) and legal (the right to make decisions for the child about medical treatment, education, routine care, religious upbringing, etc.). Physical and legal rights and responsibilities can be held by one parent or can be shared. So, for example, if the children live mostly with one parent, that parent has primary physical responsibility.
It is important to note that the court cannot order shared rights and responsibilities unless both parties agree. The court may split legal responsibilities so that one parent is responsible for some decisions and the other parent responsible for others. For example, one parent could have the right to make decisions about religion, but the other parent would have the right to make all other legal decisions. In difficult cases, the court may appoint a "guardian ad litem." This person helps the court decide what would be in the children's best interests.
Q. What is a parent coordinator?
A. In cases where the parties cannot agree, the court can appoint a parent coordinator. This is to help the parents set up a schedule and follow the court's orders. The parent coordinators are specially trained to look out for the best interests of the child during a divorce or other family law case. The parent coordinator will talk to important people in the child's life and make a recommendation to the court about what would be the best parent-child contact schedule, or parenting plan.
If either parent disagrees with the parent coordinator's recommendation, they can file an objection with the court. The court will then schedule a hearing to determine whether or not to follow the parent coordinator's recommendations.
Q. How long will my court case take?
A. That depends on several things. If you are getting divorced, even if you have agreed on all issues, you must wait at least 6 months after living separate and apart before you can have a final hearing.
If you have minor children, the court will not schedule a final custody hearing until at least 6 months after the case was filed.
Q. How do I file for other reasons or "grounds" for divorce?
A. Most divorces in Vermont are granted on the grounds that the parties have lived separate and apart for 6 consecutive months and are not likely to get back together.
While Vermont law includes 6 other grounds for divorce, the forms are not set up to let you file a divorce on those grounds. If you decide you want to file for other reasons than that you have been separate and apart for 6 months and won't be getting back together, then you should consult a lawyer. If you list a reason for divorce and do not prove it, the judge may not grant the divorce.
If one party tells the court that there are "irreconcilable differences," the court can order a divorce, so the court almost always grants the divorce on this basis even if one party is at fault. Serious abuse may be relevant to other decisions the court must make in a divorce case, like custody, visitation or spousal support. This is true even if you ask the court to give you a divorce based on living separate and apart for 6 months.
Q. If I'm the Defendant and I get the divorce papers in the mail, am I agreeing to everything in the complaint if I sign and return the "Acknowledgment of Receipt" form?
A. No. By signing and returning the form, you are only agreeing that you got the divorce papers. You will have the chance to explain where you stand on issues at the conference, the mediation, and any formal hearings you may have.