Welcome to Vermont Prenup Laws 101! From its verdant rolling hills to the stunning fall foliage, Vermont is the epitome of New England charm. But beyond the beauty and charm of Vermont’s natural landscape, if you plan on getting a prenup in Vermont, you’ll need to understand its legal landscape as well. Read on to find out what makes a prenup valid and enforceable in the Green Mountain State.
Do I really need a prenup?
You should really consider one! A prenup (a.k.a. “antenuptial agreement” in Vermont) allows you and your fiancé to decide how to handle property division and spousal support (a.k.a. “maintenance” in Vermont) if you get divorced. Without a prenup, you lose control over these decisions if you can’t decide between yourself and your ex-spouse in a divorce, as Vermont’s default laws will dictate the outcome.
Vermont is an equitable distribution state, which means that the court will divide both assets and debts between spouses based on what is fair. Although fair does not mean equal (i.e., 50/50), you may have a very different idea of what you think is fair. Courts in Vermont consider a number of factors to determine what is fair, including the relative age and health of the parties, contributions to the marriage, and the length of the marriage, just to name a few. Check out Vt. Stat. tit. 15 § 75 for the full rundown of these factors.
Without a prenup, Vermont courts also have the discretion to determine whether maintenance (a.k.a. alimony) is appropriate based on several factors, including each spouse’s income, ability to work, the length of the marriage, and more. You can read through the full list of maintenance factors at Vt. Stat. tit. 15 § 752. Vermont also has specific guidelines regarding the amount and duration of an award based on the length of the marriage and the percentage difference between the spouses’ income (Vt. Stat. tit. 15 § 752).
The only way to override Vermont’s default laws is by getting a prenup before you get married.
Are prenups valid in Vermont?
Yes, as long as the prenup complies with the requirements outlined in Vermont case law. Here are the requirements:
- You and your fiancé have to get married for the prenup to be effective and sign the document before the wedding.
- The prenup must be in writing.
- It must be signed “voluntarily and freely” by both spouses (meaning, neither spouse should be pressured or coerced into signing).
- The agreement cannot be obtained through fraud.
- Both spouses must provide each other with “fair and reasonable” financial disclosure (this includes sharing information about your assets, debts, income, and any anticipated inheritances).
- Must not include unfair or unconscionable (i.e., egregiously one-sided) terms.
- Must not include terms that violate public policy (i.e., leaving one spouse dependent upon or close to qualifying for public assistance).
Take a look at the case Bassler v. Bassler, 593 A.2d 82 (1991) for the full scoop on what makes a prenup valid and enforceable in Vermont.
What can you put in a Vermont prenup?
In Vermont, case law governs the enforceability of prenups rather than specific statutes. This means you can look at prior decisions by Vermont courts to understand what types of clauses are enforceable in a Vermont prenup.
Based on cases like Bassler v. Bassler, 593 A.2d 82 (1991), Stalb v. Stalb, 719 A.2d 421 (1998), and Rock v. Rock, 308 A.3d 492 (2023), your prenup can address anything from property division to spousal support, as long as the terms are fair and consistent with public policy.
What can void a prenup in Vermont?
Based on Vermont case law, there are a few things you’ll need to be mindful of to ensure that your prenup is valid and enforceable. The case Bassler v. Bassler, 593 A.2d 82 (1991) set the framework for how Vermont courts determine the enforceability of a prenup. Let’s take a look at what can void a prenup in Vermont:
Prenup Signed Involuntarily
Both spouses must sign the agreement “voluntarily and freely” and free from fraud, duress, or coercion (Bassler v. Bassler, 593 A.2d 82 (1991)). Basically, this means that you can’t pressure or trick your fiancé into signing your prenup. Otherwise, it will not be enforced by Vermont courts.
Unconscionable (one-sided) or Unfair Terms
A prenup cannot be overly one-sided in one spouse’s favor (Bassler v. Bassler, 593 A.2d 82 (1991)). Terms regarding property division must be fair to both spouses (Bassler v. Bassler, 593 A.2d 82 (1991)). For example, if the terms of a prenup grant all the property to one spouse and leave the other spouse with nothing and no way to support themselves, a Vermont court may not enforce it.
Insufficient Financial Disclosure
Each spouse has to make a “fair and reasonable” disclosure to the other of their financial status (Bassler v. Bassler, 593 A.2d 82 (1991)). This means you need to delineate everything, from assets and debts to any income and any anticipated inheritances, along with their corresponding values. If you hide, incorrectly list, or omit your financial information, you run the risk of your prenup being unenforceable.
Terms That Violate Public Policy
Vermont courts frown upon terms that leave one spouse dependent upon or eligible for public assistance to receive financial support (Bassler v. Bassler, 593 A.2d 82 (1991)). In Bassler v. Bassler, the Vermont Supreme Court refused to enforce a prenup that left the wife without any portion of her husband’s property. Moreover, by the time the parties divorced, the wife received public assistance.
Real prenup case in Vermont
To understand how Vermont courts typically handle prenuptial agreements, let’s examine real-life cases that provide valuable insights into their approach to enforceability.
The landmark prenup case in Vermont
In 1983, Linda (the wife) and her daughter moved in with George (the husband). George lived on his mother’s estate. Linda and George eventually had a child of their own. George agreed to marry Linda only if they signed a prenup. Linda agreed and signed a prenup that heavily favored George and left her with nothing. When the couple decided to divorce, Linda moved out with her two children and began receiving public assistance. Meanwhile, George continued to live on his mother’s estate. Linda initiated the divorce, and George requested that the court enforce the prenup.
The court ultimately determined that the prenup was unenforceable as it left Linda with nothing and reliant upon public assistance. Without the prenup, this outcome would not have resulted under Vermont’s default laws. Moreover, the court cemented the fact that it is against Vermont’s public policy to enforce a prenup that is unconscionable (one-sided) and leaves one spouse reliant upon or eligible for public assistance at the time of divorce. Bassler v. Bassler, 593 A.2d 82 (1991)
How commingling can ruin a Vermont prenup
This case teaches us a very valuable lesson about prenups: Avoid mixing assets with your spouse that you agreed to keep separate in your prenup. In 2023, the Vermont Supreme Court ruled that a prenup can be voided if the couple consistently acts in a way that contradicts the terms outlined in their prenup.
In this case, the couple’s prenup stated:
- Each spouse would keep their pre-marital and marital assets separate.
- The spouses would divide any jointly held assets acquired during the marriage based on the respective spouses’ contributions.
- Living expenses would be paid according to each spouse’s income.
- Each spouse would be responsible for their own debts.
- The wife would receive wages as compensation for any work she performed for the business.
However, as a married couple, the spouses completely deviated from these terms. When the parties divorced, the separate assets outlined in the prenup no longer existed. Instead, the spouses combined their major separate assets (except for the marital residence and the business) into one investment account listed solely in the husband’s name. However, the account also held both spouses’ funds, including the wife’s wages and contributions to the business, in addition to the proceeds from the sale of a jointly owned motorhome.
At the time of divorce, the court examined these actions and reasoned that the couple had abandoned the terms of their prenup. If a couple acts in a way that’s inconsistent with the terms outlined in their prenup, and there is no other written agreement in place, the court reasoned that the prenup can be rescinded. Rock v. Rock, 308 A.3d 492 (2023)
Do you need a lawyer to make a prenup in Vermont?
While it is not a legal requirement in Vermont, courts can assess whether the parties had the opportunity to consult with independent legal counsel if your prenup is ever contested.
In an unreported 2023 case, the Vermont Supreme Court enforced a prenup where only one party had representation. (Seguin v. Brown, No. 23-AP-115, 2023 WL 7490253, at *3 (Vt. Nov. 13, 2023)). The Court focused on the fact that the unrepresented spouse had the opportunity to seek legal counsel but chose not to.
Bottom line? You do not need legal representation to have a valid and enforceable prenup in Vermont.
Does the prenup need to be notarized?
Notarization is not a requirement for a valid and enforceable prenup in Vermont. However, it’s still recommended. Why? Because it provides proof that your spouse signed the agreement if they ever argue that they didn’t. It also provides proof that your spouse knew they were signing a prenup if they ever argue that they were somehow tricked into signing the document.
Main takeaway on Vermont prenup laws
That’s the long and the short of it on Vermont’s prenup laws! Give yourself a well-deserved pat on the back for making it all the way to this point. Now that you’re well acquainted with Vermont’s prenup law landscape, you’re ready to get started on your prenup. Keep these guidelines in mind and treat your bride or groom-to-be to a scoop of Ben and Jerry’s ice cream when you finally finish your prenup!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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