Vermont Prenuptial Agreements
As home to Ben & Jerry’s ice cream and the USA’s leading producer of maple syrup, could getting married in Vermont be any sweeter? Welcome to our guide on prenuptial agreements in the Green Mountain State! As each state has its own unique laws and requirements for prenuptial agreements, this page will provide you with the important information you need to know about Vermont’s approach to these types of contracts.
Prenup basics in Vermont
First things first: in Vermont, prenups are called “antenuptial agreements.” An antenuptial agreement (or “prenup” as we’d prefer to call them) is a legally enforceable contract between two people who are planning to get married. The agreement becomes legally binding upon the marriage of the couple. A prenup may outline the division of property, alimony, and other financial matters in the event of divorce or death.
In Vermont, prenuptial agreements are governed by legal precedents established through court decisions (this is called case law) rather than specific statutes. This means that past rulings by Vermont courts shape the requirements and enforceability of prenups in the state. Some of the main decisions in Vermont that govern the enforceability of a prenup are 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).
What makes a Vermont prenup valid and enforceable?
Vermont law recognizes prenuptial agreements under court decision precedent (also known as case law). Here is what makes a prenup valid and enforceable in Vermont:
Formalities:
In writing and signed by both spouses.
Fair and Reasonable Financial Disclosure:
Each spouse must provide a “fair and reasonable” disclosure of their financial situation to the other. This means sharing your assets, income, debt, and even future inheritances.
Voluntarily and Freely Signing the Agreement:
Both spouses must enter into the agreement “voluntarily and freely” and without coercion or pressure.
Fairness of the Prenup Terms:
The terms of the agreement regarding the division of property upon divorce must be reasonably fair to both spouses.
Not Unconscionable:
A prenup will not be upheld in Vermont if it is substantively “unconscionable” at the time of execution. This means it shouldn’t have been shockingly unfair or one-sided when the prenup was signed.
No Fraud:
There must not be any fraud related to the creation of the agreement.
Public Policy Considerations:
The agreement cannot leave one spouse dependent on public assistance or close to needing public assistance.
>>For the fine print on what makes a prenup valid and enforceable, check out Bassler v. Bassler, 593 A.2d 82 (1991).
Do I need a lawyer for my Vermont prenup?
Vermont doesn’t have a specific law requiring an attorney for a valid prenuptial agreement. However, a recent Vermont Supreme Court case, though unreported, upheld a prenup even when one party didn’t have a lawyer. The Court noted that this person had the opportunity to get a lawyer but chose not to, highlighting that not having an attorney doesn’t automatically invalidate a prenup. Seguin v. Brown, No. 23-AP-115, 2023 WL 7490253, at *3 (Vt. Nov. 13, 2023).
Takeaway? Having a lawyer is not a prerequisite to a valid and enforceable agreement in Vermont. However, a court may consider whether or not you and your partner had the opportunity to consult with an attorney if your prenup is ever challenged.
Default law on property division in Vermont
What happens to your property if you get a divorce in Vermont without a prenup? Vermont is an equitable distribution state, which means courts aim to divide all marital property fairly, considering factors like the length of the marriage, each spouse’s age, health, income, earning potential, contributions to the marriage (including as a homemaker), and the needs of each party.
This division also takes into account whether one spouse will receive spousal maintenance (i.e., alimony) and the possibility of future inheritances, though only if there’s solid evidence about them. The goal is to achieve an equitable split, not necessarily an equal one, recognizing that a 50/50 division might not always be the fairest outcome.
>>See Vt. Stat. tit. 15 § 751 for the fine print on Vermont property division
Default law on alimony (a.k.a. “maintenance) in Vermont
In Vermont, without a prenup, a court can order one spouse to pay maintenance (also known as spousal support or alimony) to the other ex-spouse during or after a divorce if the spouse seeking support doesn’t have the means to meet their reasonable needs and can’t support themselves through employment. A Vermont court has some discretion in awarding the amount and duration of maintenance but will consider factors such as each spouse’s financial resources, ability to work, the standard of living during the marriage, length of the marriage, age, health, and more.
Vermont also has guidelines that lay out a range of how much a court can award based on the length of the marriage and a percentage of the difference in each spouse’s income. For example, for couples who have been together for under 5 years, alimony may only be awarded between 0 and 16% of the difference in the spouse’s income for up to 1 year or no maintenance at all. (You can see the full guidelines in the Vermont maintenance statute here.)
>>For the fine print on maintenance in Vermont, see Vt. Stat. tit. 15 § 752.
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How commingling can destroy your prenup in Vermont
In a 2023 Vermont Supreme Court case, the court ruled that a prenuptial agreement can be voided if the couple’s actions consistently contradict its terms. In this specific case, the couple had a prenup stipulating separate ownership of assets, but over time, they combined their major assets into a single investment account and shared expenses, clearly demonstrating their intent to disregard the agreement. This led the court to declare the prenuptial agreement abandoned.
The court specifically stated that a couple can void their prenup by “commingling [their] marital or non-marital property or by conduct which shows an intent to ignore the agreement and treat non-marital property as marital property.” Rock v. Rock, 308 A.3d 492 (2023) (We go more in-depth on this case below).
Bottom line? Act in accordance with your prenup in Vermont. If you want to keep a bank account separate, make sure you actually keep it separate and don’t mix funds with your spouse.
How to end a marriage in Vermont
To file for divorce in Vermont, at least one spouse must have lived in the state for six months. However, a final divorce decree won’t be granted until one spouse has been a resident for a full year. (Vt. Stat. tit. 15 § 592). In addition, Vermont has various grounds for divorce, including:
- Adultery
- Imprisonment
- Intolerable severity (feeling threatened/in danger)
- Willful desertion
- Permanent physical or mental incapacity
- Living apart for six consecutive months, the court finds that the resumption of marital relations is not reasonably probable.
- (Vt. Stat. tit. 15 § 551)
The most common grounds for divorce is the last one (it’s the easiest one to file), which requires you and your partner to live separate and apart for six months before filing for divorce.
Vermont case law
In Vermont, prenuptial agreements are shaped by the precedents set in court decisions rather than by specific statutes. This means that understanding Vermont case law is crucial when creating or enforcing a prenup in the state. Let’s explore what Vermont courts have to say about these agreements.
Vermont’s foundational case on prenups, shaping Vermont’s view on prenups even today
In Bassler v. Bassler, the Vermont Supreme Court refused to enforce a prenup because it denied the wife any portion of the husband’s property, and she was receiving public assistance at the time of the divorce.
Linda and her daughter moved in with George on his mother Dolores’s estate in 1983. Linda and George eventually got pregnant, and George agreed to marry her but only if she signed a prenup. The prenup heavily favored George and said Linda got nothing. After separating, Linda and her two kids went on public assistance while George remained on the estate. Linda filed for divorce, and George asked the court to enforce the prenup, which basically said Linda gets nothing.
The result? The court ruled that the prenuptial agreement was unenforceable because it left Linda reliant on public assistance, a situation that could have been avoided if the agreement was not in place.
This court also laid out the foundation for what makes a prenup enforceable in Vermont. It said that the enforceability of a prenup is governed by consideration of whether:
- Each spouse has made fair and reasonable disclosure to the other of his or her financial status
- Each spouse has entered into the agreement voluntarily and freely
- The substantive provisions of the agreement dividing the property upon divorce are fair to each spouse.
The court also noted that Vermont public policy will not allow the enforcement of a prenup that is unconscionable (i.e., overly one-sided) at the time it is executed.
Additionally, where, at the time of the divorce, a prenup leaves one spouse a public charge or close to it, the agreement may be unenforceable as against public policy.
A 2023 Vermont Supreme Court case on how your actions can void a prenup in Vermont
The Vermont Supreme Court, in 2023, decided an important prenuptial agreement case. The court said that if a couple acts against the terms of their prenup, it can be rescinded based on their actions without another written contract in place. The court held that the parties’ actions in this specific case were clear in that they intended to cancel the agreement.
In the case, the 1994 prenup stated that:
- Each spouse would keep both pre-marital and marital assets separate,
- If they acquired jointly held assets, they would divide them based on their respective contributions.
- They would pay living expenses in proportion to their income and separately pay their individual debts;
- They would file separate tax returns or, if filing jointly, allocate tax funds and liabilities according to their respective incomes.
- The wife is to be compensated for any work she does for the business entirely through wages.
The parties did not follow any of these provisions. By the time of their divorce, the assets listed in the prenup no longer existed. Instead of maintaining separate property as the prenup dictated, they had consolidated their major nonretirement assets, excluding the marital home and the LLC, into a single investment account held in the husband’s name. This account, however, contained funds from both parties, including the wife’s salary and contributions to the business, as well as proceeds from the sale of their jointly owned motorhome.
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The information on this page was last updated in July, 2024. Hello Prenup provides a platform for self-help. The information provided by Hello Prenup along with the content on our website related to legal matters (“Legal Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither Hello Prenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.
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