The Vermont Commission on Women was founded in 1964 by Governor Philip Hoff.
The Commission’s purpose is to help women achieve legal, economic, social
and political equality in Vermont. The Commission acts as a public policy
advisor, planner and information source for both the Governor and the
Legislature on issues affecting women. The Commission also acts as an
educational resource by conducting research, producing publications and
providing educational conferences. Lastly, the Commission
serves as a clearinghouse for information and referrals to the general public.
This publication is particularly important to the Commission’s purpose
as it was an active participant in achieving: the establishment of the Family
Court; revisions to the criminal code for greater protection of women and the
enactment of the victim’s bill of rights; bail reform; stronger child support
enforcement; family and medical leave; anti-harassment laws in employment and
education; equity for women in insurance laws and regulations; gender-inclusive
language in the Vermont Constitution; a minimum wage increase; amendments to
the laws regarding abuse prevention; and other legislation important to women’s
interests.
The Vermont Commission on Women is comprised of sixteen commissioners, an Advisory Council composed of representatives from
comprised of representatives from statewide women’s organizations, the Commission staff, and
many dedicated volunteers.
Introduction
Welcome to the fifth edition of The Legal Rights of Women in Vermont! The goal
of this publication is to enhance the lives of women throughout the state
through increased knowledge. The more women know about their rights, the
more they can work for what they deserve. The publication is designed to allow
any woman to pick it up and find something useful to her life. No special legal
training is required to understand the material. This is a handbook that not
only provides a quick reference of legal rights, but provides enough information
to allow a woman to investigate these issues further on her own and to locate
valuable resources.
Please note that this publication is intended for a female audience. Although
almost all of the laws discussed are applicable to women and men equally, the
intention is to focus on the needs and interests of women. Occasionally, references
will be made solely to women with the exclusive use of female pronouns, although
much of the writing is gender-neutral.
Please let us know your ideas about how the Commission can continue to improve
this publication for your use - we would love to hear from you! Please call
us at (802) 828-2851 if we can be of any further assistance.
Acknowledgments
Susan M. Sussman, Esq., a civil rights attorney with years’
experience in women’s legal issues in Vermont, spent many hardworking months
expertly rewriting and updating this fifth edition. We are grateful to her for
interpreting her task in the broadest terms possible, even though it meant many
more hours of work than anticipated. Sue Storey, a talented graphic designer,
was gracious enough to donate the beautiful artwork and layout design, for which
we are very grateful.
The following people provided invaluable editorial review and assistance for
one or more chapters of this book: Janine Allo, Rachel Atkins, Sally Ballin,
Joan Bauer, Julie Brill, Jeffrey Cohen, Kerry DeWolfe, Judith Dickson, Sandra
Dooley (and many others at DSW), Hon. Susan Fowler, Paul Gillies, Lynn Goyette,
Jacqueline Hughes, Hon. Denise Johnson, Judith Joseph, Mary Kehoe, Trinka Kerr,
Sandra Levine, Jeri Martinez, John McCullough, Patti McManamy, Kyle Mooney,
Esther Perelman, Susan Murray, Sarah Nussbaum, Margaret O’Donnell, Robin
Orr, Tim Palmer, Karen Richards, Lila Richardson, Anna Saxman, Carol Shults,
Hon. Marilyn Skoglund, Seth Steinzor, Tom Van Cooper, the authors of the Vermont
Family Court pamphlets and all the writers and editors of the previous editions
of this publication.
Extra special thanks go to those who took the considerable time to review and
edit significant portions of the entire manuscript: Eileen Blackwood, Sally
Conrad, Beth Danon, Maxine Jo Grad, Beth Robinson, Judith Sutphen and Gail Zatz.
Even with all this assistance, the Commission must claim any errors or omissions
as its own.
In addition to the 1997 General Legislative Assembly who appropriated the funds
to have this publication revised, contributions were received from the following
individuals and law firms: Darby, Laundon, Stearns, Thorndike & Kolter,
Billi Gosh, Robert E. Manchester, Esq., Peter Thoms, and Wilson & White,
PC. Special appreciation goes to the League of Women Voters whose generous financial
contribution will enable distribution of this publication to the many women
in Vermont who will seek its assistance.
We are deeply grateful to Capital City Press, Inc. whose generous printing donation
made this edition possible.
Finally and most importantly, we acknowledge the thousands of courageous Vermonters,
women and men alike, who have fought to ensure that legal protection of women’s
rights in the State is as broad and fair-minded as possible.
Table
of Contents
Adoption
Consumer
Protection and Fair Credit
Domestic
Relations
Education
Employment
Rights
Governmental
Benefits
Housing
and Property Rights
Insurance
Name
Changes
Public
Accommodations
Reproductive
Rights
Violence
Against Women and Children
Wills
Adoption
If you are considering adoption or have been adopted, this chapter will help
you understand your rights under Vermont law.
Vermont’s Adoption Act was overhauled by the Vermont Legislature in 1996,
with additional amendments in 1997. This chapter provides an overview of some
of the major provisions of this complex law. There are different procedures
to be followed depending on whether you seek to adopt a minor (a child under
18 years of age), a stepchild, or an emancipated minor. All of the following
apply to the adoption of a minor, with a separate section regarding the adoption
of others (including second-parent adoptions).
People Who Can
Adopt
A petition for adoption of a minor can be filed in Vermont Probate Court
by:
• a person with whom a child has been placed for the purpose of adoption
• a person who has been selected as a possible adoptive parent by a person
authorized to make such a selection
• a person who has had physical custody of a child for at least six months
just before the filing of the adoption petition, if the filing of the petition
is allowed by the court
• a stepparent seeking to adopt a stepchild
• a person seeking to adopt an emancipated minor or an adult
(See Resources chapter - Adoption)
Adoption By
Unmarried Same-sex and Opposite-sex Couples
An unmarried couple, whether of the same sex or the opposite sex, can adopt
a child. (As of this 1998 edition, some Vermont Probate Court judges permit
joint adoptions, while others may require the parties to go through a “stepparent
or second parent” adoption procedure—see later section on Adoption
of Others.)
If the couple ends
their domestic relationship sometime after the adoption has occurred, Vermont’s
Family Court has jurisdiction to determine the rights and responsibilities of
each of the parents, as well as any parent-child contact and child support.
These situations will be subject to the rules and law which govern the child
custody and support portions of divorce proceedings. (See Domestic Relations
chapter.)
Children (and
Others) Who Can Be Adopted
Minor children can only be adopted if they have been placed for adoption by:
• a parent who has legal and physical custody of the child, or
• a guardian who has been authorized to place the child for adoption, or
• an agency to which the child has been given for the purposes of adoption
by the parent or guardian, or by a court order which has terminated parental
rights
A parent who has
legal and physical custody of a child cannot place the child for adoption if
the other parent has legal custody or rights of visitation with the child and
that parent’s whereabouts are known. An exception is made if the other
parent has agreed in writing to the adoption placement, or has been sent an
appropriate notice of the proposed adoption. (This would enable the other parent
to contest the adoption and take whatever steps may be available to that parent
during the court’s consideration of the adoption.) Except in those cases
in which a birth parent is unknown, a reasonable effort must be made to notify
that parent of the proposed adoption.
Evaluations
of Adoptive Parents
Whether a child is placed for adoption by an adoption agency or by the birth
parents themselves in a private placement, a favorable preplacement evaluation
of the adopting parent(s) must be received or updated within twelve months before
the placement occurs. There are a few exceptions to this rule, but a favorable
postplacement evaluation will have to be received in all cases before a final
adoption can take place.
Preplacement evaluations
must be performed by a person who is authorized by the Vermont Department of
Social and Rehabilitation Services. The evaluation has to be completed within
90 days after it is requested, unless the Probate Court allows for a longer
time.
If you receive
an evaluation saying that you are not suited to be an adoptive parent, you have
90 days from the time you receive the unfavorable evaluation to petition for
a review by the Probate Court.
Procedure for
Adoption
Once a child has been placed with you for purposes of adoption, you must file
a formal petition for adoption at the Vermont Probate Court within 45 days,
unless the court gives you a longer period of time. (This does not apply to
adoptions by a foster parent, relative or stepparent.) (See Resources chapter
- Adoption.)
There are many
requirements that have to be met and appropriate documents that have to be filed
while going through an adoption proceeding. Some of these include the preplacement
evaluation, the final evaluation, appropriate documents relating to the child,
the status of the birth parents, and the appropriate documents from the adoption
agency (if one was used).
Adoptions are granted
by the Probate Court if it finds that:
• adoption is in the best interest of the child
• the child has been in the physical custody of the person(s) seeking adoption
for at least 180 days (unless the court waives this)
• notice of the pending adoption has been given to the appropriate people
and entities
• every necessary consent, relinquishment, waiver, disclaimer in paternal
interest, judicial order terminating parental rights, or other document has
been filed with the court
• all appropriate evaluations have been filed with, and considered by,
the court
• the person(s) seeking to adopt is a suitable parent for the child
• the person(s) seeking to adopt has received all the health and background
information about the child which is required to be provided by law
• if applicable, any legal requirement governing an interstate or intercountry
placement for adoption has been met
• the Indian Child Welfare Act is not applicable, or that its requirements
have been met
Disclosure of Information to Adoptive Parents
Before a child is placed for adoption, either by a birth parent or an adoption
agency, the prospective adoptive parents must be given a fairly complete social
and health history of the child as well as of the child’s birth parents
and extended family. This information must be provided if it is reasonably available
from the parents, relatives or guardian of the child, the agency, any person
who had physical custody of the child for 30 days or more, and any person who
has provided health, psychological, educational or similar services to the child.
The Vermont Adoption
Act includes a long list of the type of information that needs to be provided.
It also specifically requires adoption agencies to inform the adoptive parents
about any unique requirements or special needs of the child that the agency
is aware of, including any adoption subsidy for which the child might be eligible.
Rights of Birth
Parents
In many cases, the birth parents may have given up or “relinquished”
their parental rights to an adoption agency. The agency then places the child
with a proposed adoptive family. A “relinquishment” is signed in the
presence of a judge. This relinquishment hearing cannot be scheduled until the
child is at least 36 hours old. Any relinquishment may be revoked within 21
days of having signed it by simply notifying the court in which the document
was signed. If the relinquishment is not revoked within 21 days it becomes final
and irrevocable unless a court orders otherwise.
If the birth parents
are making a direct placement of the child without going through an adoption
agency, they must sign a consent in order for the adoption to occur. The same
timelines as described in the previous paragraph apply here, as well.
Rights of Birth
Fathers
Consent of the biological father of the child to be adopted is not required
if he was not married to the birth mother, and he signed a notarized statement
denying paternity or disclaiming any interest in the child after the child was
conceived, and he acknowledged that his statement is irrevocable.
Otherwise, the
following men must be notified of the pending adoption and must either sign
a consent to the adoption or take other action to contest the adoption:
• The biological father of the child if he is identified by the birth mother
or is otherwise known to the probate court.
• A man who:
— was married to the birth mother at the time the child was born or was
legally separated or had the marriage terminated within 300 days of the child’s
birth, and
— has formally acknowledged paternity of the child or has filed a notice
to retain parental rights, and
— has demonstrated a commitment to the responsibilities of parenthood by
setting up a custodial, personal or financial relationship with the child, or
can show that he was prevented from or unable to do so.
• A man whom the person seeking adoption knows is claiming to be or who
is named as the father or possible father of the child and whose paternity of
the child has not been determined by a court yet (unless he has already signed
a formal statement denying paternity or disclaiming any interest in the child).
Notice of the adoption petition is not required to be sent to any of the above
men if their parental rights were formally terminated by a court.
Rights of People
Who Have Been Adopted
People who have been adopted and are at least 18 years old may seek to identify
their birth parents (or former parent, if that is the person who either voluntarily
or involuntarily terminated their parental rights), and other identifying information
kept by the official Vermont Adoption Registry. (See Resources chapter - Adoption.)
Their success will depend, in part, upon when the request is made and when the
adoption was finalized. If the request for the information was made between
July 1, 1996 and December 31, 1997, the registry will only provide the identifying
information if the birth parent agrees to this disclosure.
Beginning January
1, 1998, if the adoption was finalized before July 1, 1986, the adoption registry
can only release the identifying information if the birth parent has indicated
to the probate court or adoption agency that s/he agrees to this sort of disclosure.
If the adoption was finalized after July 1, 1986, the adoption registry will
provide the information requested even without the consent of the birth parent,
unless the birth parent has filed a formal request for non-disclosure with the
registry or had filed a document with any court or adoption agency before July
1, 1996, that clearly indicated the desire for non-disclosure. The birth parent
can withdraw the request for non-disclosure at any time.
In certain limited
circumstances the probate court is authorized to release identifying information
to an adoptee despite the fact that no “consent to disclose” has been
filed with the registry. Specific findings of need must be made by the court
and an effort made to locate the birth parent in advance of the hearing for
the purpose of determining the birth parent’s position on the issue.
A person who has been adopted and is at least 18 years old, can give permission
to the registry to disclose their own identifying information, if requested
by the adoptee’s birth parent or sibling of the adoptee if the sibling
is at least 18 years old.
The identifying
information kept by the adoption registry includes:
• the adoptee’s birthdate, name at birth and after adoption
• the names and addresses of the adoptee’s former parents and adoptive
parents
• the date and court in which a consent or relinquishment of parental rights
was filed
• the date and court in which the petition for adoption was filed
• any agency which was involved in the adoption
• the date and nature of the results of the adoption petition
• any consent for disclosure or document requesting non-disclosure
• any non-identifying background information which was provided to the
adoptive parents, such as the social and health histories of the adopted child
and the child’s birth parents
Adoption of
Others
Ordinarily, in order for a child to be adopted, the parental rights of the child’s
prior legal parents must be terminated. Vermont law provides an exception for
the adoption of a minor stepchild, or the minor child (biological or adopted)
of one’s partner. In addition, the law provides for the adoption of an
emancipated minor or of another adult. But Vermont law does not allow a person
to adopt his or her spouse.
A stepparent or “second parent” may adopt the minor child of her or
his spouse or unmarried partner of either sex, if the spouse or partner:
• has sole legal and physical custody of the child and the spouse or partner
has had physical custody of the child for the six months before the adoption
petition was filed
• has joint legal custody and the child has resided primarily with the
spouse and stepparent for the 12 months before the adoption petition was filed
Such a stepparent or second parent adoption will not terminate the parental
rights of the adoptive stepparent’s or second parent’s spouse or partner,
although such an adoption does terminate any former parent’s parental rights.
For that reason, you must generally get the written consent of the child’s
other legal parent in order to obtain a stepparent or second parent adoption.
Relevant Laws
Vermont:
Adoption Act, 15A V.S.A. Chapters 1 - 7
Federal:
Indian Child Welfare Act, 25 U.S.C.A. §1901 et seq.
Consumer
Protection & Fair Credit
Consumers
have continued to gain greater protection against fraud and deceptive practices
in the 1990s.
Women should be aware of their rights under a number of different federal and
state laws and regulations regarding consumer and credit issues.
Telemarketing
and Home Solicitation Sales
One of the most frequently experienced consumer interactions occurs when someone
calls to try to sell goods or services over the telephone. This is called “telemarketing”
or “telephonic home solicitation sales.”
Under Vermont law, it is illegal for a “telemarketer” (a person who
markets goods or services over the telephone) to:
• Require you to pay any money or buy anything to enter a sweepstakes or
contest.
• Ask for advance payment to repair your credit, get you a loan or recover
money lost to another telemarketer.
• Take money from your bank account without your written consent.
• Use a courier service to pick up a payment from you, unless the goods
you are buying are delivered at the same time.
• Fail to provide you with a contract or receipt which includes the date
of the transaction, the name and address of the seller, and a statement of the
right to cancel within three business days after receiving the contract or receipt.
(A particular cancellation notice form must be provided along with the contract.)
If you change your mind about what, if anything, you want to purchase you have
the right to:
• Cancel your purchase within three business days of the call.
—The seller must give you written and verbal notice of this right, and
your three days do not begin to run until these disclosures are made.
• Receive a “chargeback” or credit on your credit card if you
were not properly notified of your right to cancel.
—This right continues for three years from the date of sale.
Solicitations
For Charities By Paid Fundraisers
You may receive a call or a visit from a paid fundraiser who is soliciting donations
for a particular charity. Vermont consumer fraud law was amended in 1997 to
provide greater protections to Vermont consumers by requiring certain information
to be disclosed. For example:
• Before a person makes a donation, every paid fundraiser must clearly
disclose that s/he is being paid by a particular charitable organization to
do this fundraising.
• Before a person makes a donation, every paid fundraiser must disclose
the person’s right to find out how much of their contribution will go to
the charitable organization and how much will go to the paid fundraiser. The
paid fundraiser must tell each person how they can get such information.
Debt Collection
Practices
Both federal and state consumer protection regulations exist to protect consumers
against unfair and deceptive debt collection practices. Under the Vermont Attorney
General’s rule on debt collection you have the right not to be threatened
or harassed by a debt collector or debt collection agency.
“Going
Out Of Business ” Sales
In 1996, the Vermont Attorney General’s office adopted a consumer protection
rule regarding the operation of “distress sales” (sometimes referred
to as “going out of business,” “close-out,” or “liquidation”
sales). The following practices are not allowed under this rule and are therefore
illegal under Vermont’s Consumer Fraud Act:
• Advertising the sale with words like “going out of business,”
“closing out,” “shutting doors forever,” “bankruptcy
sale” or other similar phrases, unless the seller is closing all of its
operations in Vermont.
• Selling items at this sale which were ordered less than 60 days before
the start of the sale or were ordered simply for selling them at this sale.
• Continuing the sale for more than 45 days from the beginning of the sale
unless the dates of a longer sale are included in the sales advertising or promotional
material.
• Reopening the same business in Vermont within one year of a distress
sale, even if it is under a new name, if the ownership and/or control of the
business has remained substantially the same. (There is an exception to this
for “change of circumstances” that might justify reopening.)
“Rent
To Own” Sales
A new consumer protection rule regarding “Rent-to-Own” businesses
was adopted by the Vermont Attorney General’s Office and became effective
in 1997. One of the provisions of this rule requires businesses to provide a
written agreement to every consumer before entering into the rent-to-own contract.
This agreement has to make particular disclosures, some of which include:
• the total cost of the merchandise that will be paid before the item is
owned (including initial payment, amount and total of weekly or monthly payments
and any other charges that need to be paid), and what the item would have cost
if it had been bought for cash (instead of through a rent-to-own arrangement)
• whether the item is new or used
• a description of the merchandise, including applicable model and identification
numbers
• who is responsible for damage to or servicing of the merchandise
• whether insurance is required
• all deadlines for payments and any charges for late payment, default,
etc.
• an explanation of any repossession, termination and reinstatement rights
Contests
and Prizes
Vermont’s Consumer Fraud Act also encompasses an Attorney General Rule
regarding promotional games. Under this rule games of skill, contests, sweepstakes
or give-away promotions cannot require you to purchase something or to pay an
entry fee or service charge in order to enter or to remain eligible. The rule
also makes it unlawful to indicate that anyone is a “winner” or has
been “selected” when the enterprise is a promotional scheme and all
or a substantial number of those “entering” receive the same “prize”
or “opportunity.”
Addressing Violations
of Consumer Fraud
(See Resources chapter - Consumer)
If you believe you have been subjected to any violations of Vermont’s Consumer
Fraud Act or any of the Attorney General Consumer Fraud Rules, you can:
• contact the Consumer Assistance Program of the Vermont Attorney General’s
Office
• hire a private attorney
Vermont’s
Lemon Law
You have the right to return your car for a new one or an adjusted refund, if
it turns out that you have purchased a “lemon.” This is defined under
Vermont law as a motor vehicle which does not conform to the manufacturer’s
written warranty and which, after a “reasonable number of attempts,”
cannot be properly repaired. A reasonable number of attempts are considered
to have been taken if either:
• you have taken the car in to be repaired for the same problem at least
three times, as long as the first attempted repair occurred within the warranty
period, or
• your vehicle is out of service for a total of 30 or more days during
the warranty period
If you would like to make use of Vermont’s Lemon Law, you need to contact
the Vermont Motor Vehicle Arbitration Board. (See Resources chapter - Consumer.)
Credit
Transactions
Lending institutions such as banks, and other places that offer credit, are
prohibited by federal and state law from treating women differently, or from
discriminating against them, because of their sex or marital status. The federal
Equal Credit Opportunity Act also makes it unlawful for lending institutions
to discriminate against people because of race, religion, national origin, age
or receiving public assistance. Vermont credit laws also outlaw such discrimination
as well as discrimination on the basis of sexual orientation.
Fair
Credit Reporting Act
Federal and state laws ensure the accuracy and privacy of information kept by
credit bureaus and consumer reporting agencies. These laws give consumers the
right to know what information credit bureaus and consumer reporting agencies
are distributing about them to creditors, insurance companies and employers.
The federal Fair Credit Reporting Act provides that:
• You have the right to be told, at the time you apply for insurance, that
a credit report will be ordered.
• If your application for credit or insurance is turned down or treated
adversely in any way, you have the right to be told whether the decision was
based in any way on information obtained by the investigating agency.
• Youmust be told where your credit file is located, and that you and another
person (such as a lawyer) may inspect it at reasonable times.
• You must be told that you can file a one page rebuttal (response to the
report) which the credit agency must then furnish to all those who use the file
later.
• If you suffer damages from mishandling of information, you can sue and
recover. There are also criminal penalties.
In 1992, the Vermont legislature amended its Consumer Fraud Act to also include
requirements concerning fair credit reporting practices. This includes the right
to request one free credit report every twelve months.
Relevant
Law
Vermont:
Charitable Solicitations, 9 V.S.A. §2471
Consumer Fraud Act, 9 V.S.A. §2451, et seq.
Lemon Law (New Motor Vehicle Arbitration Act), 9 V.S.A. §4170, et seq.
Vermont Attorney General Consumer Fraud Rules
Contests and Prizes - Rule CF 109
Debt Collection - Rule CF 104
Distress Sales - Rule CF 114
Fair Credit Reporting - Rule CF 112
Rent-to-Own Disclosures - Rule CF 115
Telephonic Home Solicitation Sales - Rule CF 113
Federal:
Equal Credit Opportunity Act, 15 U.S.C.A. §1691, et seq.
Fair Credit Reporting Act, 15 U.S.C.A. §1681, et seq.
Domestic
Relations
“Domestic
relations” refers to the complex legal rights of women involving marriage,
separation, divorce, child support enforcement, establishing parentage and the
rights of unmarried same-sex and opposite-sex couples.
Marriage
Vermont does not recognize “common law” marriages. The fact that
you consider yourself married, or the fact that you have lived together for
a certain number of years, does not mean that you will be considered “married”
under the law.
In order to become legally married in Vermont, you need to:
• get a marriage license from the town clerk where either you or your partner
reside
• have the marriage “solemnized” (performed) by a Vermont minister,
judge or justice of the peace (or a minister from outside Vermont if that person
gets appropriate approval before the marriage from the probate court of the
district in which the marriage is to occur)
• have the marriage license signed by the authorized person who performs
the marriage
• have the marriage occur within sixty days of the date the license is
issued
• have the marriage license filed with the town clerk within ten days after
the marriage occurs (usually by the person who performs the marriage)
In Vermont, you do not need to have a blood test before getting married. You
do not need to have anyone other than the person performing the marriage sign
or “witness” the marriage license. If you miss the filing deadline
for your marriage license, you can file a “delayed certificate of marriage”
with the probate court in the town where the license was issued.
In 1992, the law was amended to do away with the requirement that you had to
wait at least three days after getting your marriage license from the town clerk
before you could get married.
A person cannot marry her or his parent, grandparent, child, grandchild, sibling,
niece or nephew, aunt or uncle.
(Although same-sex couples have been unable to obtain licenses to marry in Vermont,
a challenge to this was pending in court as of the writing of this 1998 edition.)
Legal
Separation
Under Vermont law, a “legal separation” can be granted for the same
grounds as in a divorce. (See section on Divorce, below.) It can stay in effect
for a limited or an unlimited time. It can also be entered into by agreement
or by court order. Since it is not a divorce, you cannot remarry. In almost
every other respect, however, a legal separation is the same as a divorce.
Divorce
Generally divorce is one of the most difficult legal problems that many women
will face. Getting a divorce may be either complicated and costly, or straightforward
and relatively inexpensive, depending on the circumstances in each case.
The complexity of a divorce or legal separation depends on how well the parties
relate to each other and how many issues are in contention.
The terms of most
divorces in Vermont are the result of negotiated agreements between the parties,
which are then formally approved by a Family Court judge. A much smaller percentage
(about 20%) are cases where the parties cannot reach agreement (“contested
cases”) and where the terms of the divorce are decided by a judge after
a hearing in court.
The major issues to be decided in a divorce usually include:
• who the children will live with and how they will be supported
• how the property will be divided
• who will be responsible for paying outstanding bills
• whether there will be any spousal maintenance (alimony)
The most common ground for divorce in Vermont is a showing that the couple has
lived apart for at least six months and that there is no reasonable chance of
“reconciliation” (i.e. that the couple will not get back together).
You do not have to have lived apart for six months before filing for divorce,
but you have to have lived apart for six months by the time your divorce is
granted (the final hearing). It is also possible to claim that you have lived
apart for six months, even though you are living under the same roof, if you
have stopped having a marital relationship.
Although used infrequently,
the other grounds for divorce in Vermont are: intolerable severity; nonsupport;
imprisonment for three or more years; adultery; incurable insanity; willful
desertion or absence for seven years while not being heard of during that time.
You have to have
lived in Vermont for at least six months before you can start a divorce. The
divorce process is handled in Vermont through the Family Court in each county.
(See Resources chapter - Domestic Relations.) Each county has its own Family
Court and the process in each may be somewhat different. The Family Courts can
decide cases involving divorce, separation, child support, parental rights and
responsibilities (custody), parent-child contact (visitation), grandparent visitation,
paternity, abuse prevention, juvenile delinquency, abuse and neglect, and certain
mental health proceedings.
Depending on the county, various stages of your divorce may be in front of a
Family Court Magistrate (especially if there are children of the marriage),
a Family Court Judge, or, in rarer cases, an Assistant (“Side”) Judge.
Representing
Yourself, Going to a Mediator or Hiring a Lawyer
Whether you are thinking of divorcing your spouse, or if your spouse has started
a divorce against you, one of the first questions you will have to decide is
whether to hire a lawyer or to represent yourself.
You might consider
representing yourself (being “pro se”) if the decision to get a divorce
is mutual and you and your spouse are able to communicate well and can work
out such things as the division of your property, who will pay the outstanding
bills, whether any spousal maintenance (alimony) will be paid, and, if you have
children, the parental rights of each parent. The Family Court in each county
may have a program to assist you if you have chosen to represent yourself in
the divorce. It is important to check for clinics or workshops that may be provided
by your local Family Court. There are also some valuable pamphlets provided
by the Family Court which explain the divorce process and how to fill out the
appropriate forms.
Before deciding
whether you and your spouse need to hire separate lawyers, you might want to
hire a mediator together to help you resolve any disputes or conflicts regarding
the difficult issues in your divorce. A mediator is a trained, neutral third
person who might be able to help you and your spouse design a mutually acceptable
divorce agreement. If mediation is successful, it is recommended that you have
the written agreement reviewed by a lawyer to make sure that it has been properly
done, before sending it to the court.
It may be advisable
to hire a lawyer to help you through the process if:
• you and your spouse have too many disagreements about the terms of the
divorce (e.g. custody of the children, distribution of property, responsibility
for debts, etc.)
• your spouse has a lawyer (or is a lawyer)
• there are substantial assets to be divided
• there has been physical or emotional abuse in the marriage
If your spouse
has hired a lawyer, it is advisable for you to consider hiring your own lawyer
to represent your interests. You should not take advice from your spouse’s
lawyer since that person is not allowed to represent both of you. (As of this
1998 edition, some family courts are experimenting with an exception to the
court rules prohibiting one lawyer from representing both sides. Therefore,
in some counties, a single attorney may be allowed to represent both parties
when there is a “mutual divorce,” i.e. if you and your spouse have
consented to all the terms of your divorce agreement and have good communication.)
If you decide to
hire an attorney, you should talk to several until you find one you like. (See
Resources chapter - Legal) Choosing a lawyer is highly personal. If there are
serious disputes in the divorce, you should make sure that you are hiring an
attorney who understands you and your needs. You should discuss how much the
lawyer will charge you (“fees”) and how you will be billed. Most lawyers
charge an hourly rate, require a downpayment (“a retainer”) and are
not able to give you an estimate of how much the whole divorce process will
cost. However, it is important to learn what the charge will be based on, to
put the agreement in writing and to work out a payment schedule, if necessary.
When
Abuse Is Involved
If you have already received a Relief From Abuse Order you should inform the
court of that at the time you, or your spouse, begin the divorce process. The
court will then combine your abuse case with your divorce case. Your Relief
From Abuse Order will stay in effect even after you begin your divorce. The
order can be extended, while the divorce is pending, beyond the date the order
was originally supposed to expire. This can be done by writing to the court
(making a motion) and showing that it is necessary to protect you or your children.
There is no need to show that any new abuse has occurred or that there has been
any change in circumstances when asking for the order to be extended while the
divorce is pending.
If you have already
started your divorce case and need to be protected from abuse, you can either
go to court for a Relief From Abuse Order or make a motion to the court asking
for relief from abuse as part of your divorce case. (See Violence Against Women
and Children chapter.) Make sure you deliver any new or amended court order
to the police (i.e. a changed Relief From Abuse Order or Temporary Order) so
they know which order is the most current and the one that should be enforced.
Going through the
Relief From Abuse process does not result in a divorce unless you properly begin
a divorce case as well.
Uncontested
Divorces
An uncontested divorce is when you and your spouse have agreed to get a
divorce and are able to work out all the important terms. You can go through
this “uncontested” process whether or not you are represented by a
lawyer and as long as you do not need the court to decide any contested issues.
(Some of the documents/forms referred to below can be obtained from your local
Family Court.)
When
There Are No Minor Children Involved
The following will give you a rough idea of the process for a completely uncontested
divorce when there are no children involved:
• Begin the process by filing a Summons and Complaint for divorce (along
with some other documents) in the Family Court of the county in which you or
your spouse reside. In order to start a divorce you have to have lived in Vermont
for at least 6 months.
• “Serve” (deliver) the Summons and Complaint to your spouse.
In uncontested divorces, this is usually done by having the person who receives
the documents sign a form agreeing to “accept service” of them. Otherwise,
the papers need to be served by a sheriff or by some other approved method.
• Work out a final divorce agreement with your spouse on issues such as
how the property will be divided, who will pay spousal maintenance (“alimony”)
- if anyone, who will pay any outstanding bills, whether you wish to change
your last name. (Consider using a mediator to help you, if needed. Also consider
having a lawyer look over this final agreement.)
• File the final agreement with the court.
• Attend the “uncontested final hearing” in Family Court, if
you are the person who filed the original divorce papers (the plaintiff). In
order to be granted a divorce you or your spouse will have to have lived in
Vermont for at least a year. At the final hearing you will give certain information
to the Judge, such as:
• you or your spouse has lived in Vermont for one year;
• one of you has lived in this county when you filed your divorce;
• you and your spouse have lived separate and apart for at least six months;
and,
• there is no reasonable possibility that you will get back together again.
The Judge will then usually sign a Final Divorce Order at the end of the hearing.
In most cases this will be the same as the final agreement you filed with the
court. (It is possible that the court will sign the Final Divorce Order without
holding a final hearing. Since this differs in each Family Court, you should
check with the Family Court in your county for more information.)
• You and your spouse sign an “Acceptance of Service” form, acknowledging
that you received the Final Divorce Order. If your spouse is not present at
the final hearing, the Order will need to be served on that person. You are
both required to follow the terms of this final order.
• The divorce becomes final at the completion of a waiting period (called
a “nisi period”). This is usually three months after the final divorce
order is signed by the judge unless you ask, and the court agrees, to make it
shorter. Some reasons for shortening the time are that you intend to remarry
or you want to file taxes as a single person at the end of the year.
When Minor Children
Are Involved
If you and your spouse have minor children almost everything described above
still applies, but you also need to be aware of a number of additional forms,
procedures and requirements, in order to go through an uncontested divorce.
• Reach an agreement on parental rights and responsibilities (“custody”).
There are two major parts to “custody.” One is called legal rights
and responsibility (the right to make major life decisions for the child, such
as education, medical and dental care, religion and travel arrangements). The
other is called physical rights and responsibility (the right to provide routine
daily care and control of the child - this is usually the parent with whom the
child will primarily live). If both parents are in agreement, legal and physical
rights and responsibilities may be shared, divided or split between the parents.
• Reach an agreement on parent-child contact (“visitation”).
Depending on how much time the children will be living with each parent, you
should figure out a schedule or arrangement for the other parent to spend time
with the children. This can be as loose or structured as you would like, depending
on your ability to calmly work out issues regarding your children with your
spouse.
• Attend a child support hearing. Once a divorce is started, a hearing
to determine child support is almost always immediately scheduled. This is either
a hearing with a Magistrate for the Family Court, or a conference with a Case
Manager for the Family Court. You will have to exchange information about each
of your income and assets in order to determine who is to pay child support
and in what amount, according to the “child support guidelines” that
have been established in Vermont.
It is possible for you to work out an agreement about child support in advance
of this hearing. You can do this by each filling out the required paperwork
including a separate Affidavit of Income and Assets from you and your spouse
and a joint Child Support Worksheet. These forms utilize Vermont’s child
support guidelines which figure out how the children will receive the same proportion
of parental income after the parents’ separation as they would receive
if their parents were living together. (Depending on the rules of your Family
Court, you may not need to attend the child support hearing if you have already
worked out an appropriate agreement.)
Parents can also agree to change the support to be paid if they believe that
the guidelines would be unfair. If parents agree to change the support from
the guidelines, they have to write down why the change is appropriate, taking
into account many specific factors. The Magistrate’s role is to protect
the children. If an agreement changes the amount of support under the guidelines,
and the reasons for the change do not make sense to the Magistrate, the parents’
agreement may not be approved.
If you and your
spouse agree upon child support payments, you should decide whether it is to
be paid until the child reaches adulthood or for a longer period of time. In
Vermont, “adulthood” is achieved when the child is 18 years of age
or when s/he finishes high school, whichever event occurs later. It is up to
you and your spouse whether to include a provision about how your child’s
college education will be paid for, since the court cannot, on its own, order
either party to pay for college.
Also included in
the child support agreement is who will be responsible for the medical and health
support of the children.
(See section in Contested Divorces on “Child Support” and “Wage
Withholding” for more detailed information about the child support guidelines,
the information that must be exchanged, how to go about deviating from the guidelines
and how to deal with the “wage garnishment” requirement in child support
orders.)
• Work out a final divorce agreement or stipulation and file it with the
court. This should include all your agreements regarding parental rights and
responsibilities, child support, property division, payment of outstanding bills,
spousal maintenance (“alimony”- if any), resumption of your maiden
name, and any other issues that are important to you. Keep in mind that once
an agreement on property division is reached and ordered by the court as part
of the Final Divorce Order, it cannot be changed at a later time by the court.
• The final divorce hearing cannot be scheduled until six months have passed
from the time the divorce process began (the time the complaint for divorce
was filed in court). This is because Vermont law imposes a mandatory six-month
waiting period for divorces which involve minor children.
Contested Divorces
Sometimes there are matters that you and your spouse cannot resolve on your
own, with the help of a mediator or through your lawyers. The following sections
describe the major issues that a court might need to decide if you are unable
to reach an agreement regarding them with your spouse.
Temporary Hearings
If you and your spouse cannot agree on how to arrange your lives while the divorce
is pending, you may need to have a Temporary Hearing in Family Court to decide
these issues. Some of the issues that might need to be decided at a Temporary
Hearing include:
• who has the right to temporarily live in the marital home while the divorce
is pending
• whether either spouse is entitled to spousal maintenance (“alimony”)
• where the children will live, how and when they will have contact with
the other parent (“visitation”), how much will be paid in child support,
how decisions affecting the children will be made, etc.
• who will have temporary possession of personal property (such as cars,
tools, clothing, furniture, etc.)
• who will have temporary responsibility for paying the debts (such as
the mortgage, taxes and insurance on the home, credit card bills, and other
bills of the marriage)
After hearing from both sides, the court will issue a Temporary Order which
will be in effect until it is changed at or before the Final Divorce Hearing.
Division of
Property
If you and your spouse cannot decide how to divide your “marital property”
the court will make this decision for you. The “marital property”
includes everything you and your spouse own, either by yourself or together,
at the time of your divorce. This can include anything you or your spouse has
inherited, property given to either of you, property either of you owned before
the marriage and anything you and/or your spouse acquired during the marriage.
It does not matter who has title to the property or who paid for it. The biggest
issue usually involves valuing your marital home and any other major assets,
including businesses and pension plans.
The court will
divide the property in question in a way that seems fair to the court. The court,
by law, has to look at several factors to determine how the property should
be divided. These include:
• the length of the marriage
• the age and health of the parties
• the job, source and amount of income of each spouse
• vocational skills and employability of each spouse
• the contribution by one spouse to the education, training or increased
earning power of the other
• the value of all property interests, liabilities and needs of each spouse
• whether the property settlement is instead of, or in addition to, spousal
maintenance (alimony)
• the opportunity of each spouse for acquiring property and income in the
future
• the desirability of awarding the family home or the right to live there
for reasonable periods to the spouse having custody of the children
• the party through whom the property was acquired
• the contribution of each spouse in obtaining and maintaining the property,
including the non-monetary contribution of a homemaker spouse, and
• the respective merits of the parties (e.g. what the behavior of each
spouse was during and after their separation, whether either party was abusive
or abused alcohol)
Once the court has issued a final divorce order, the property division cannot
be changed at a later time.
Debts
If you and your spouse cannot decide who is going to be responsible for paying
each of your outstanding bills and debts, the court will make these decisions
for you. This can happen either as part of a Temporary Order (while you are
separated and the divorce is pending), and/or as part of the court’s Final
Order (when you get your divorce). Such debts can include bank and personal
loans, credit cards, medical bills, utility bills, etc. The division of debts
is part of the total property settlement. The court will divide them fairly,
taking into consideration who incurred the debt and for what purpose.
Be aware that if
your spouse has been ordered by the court to pay for a jointly incurred loan
(a loan which both of you originally signed for) but does not do so, it is possible
for you to be sued for that debt by the creditor. If this happens, you can try
to ask the court to force the non-paying spouse to pay, but this still does
not relieve you of your liability for the debt.
Spousal Maintenance
(“Alimony”)
Spousal maintenance is more familiarly referred to as “alimony.” This
is the payment of support by one spouse to the other spouse. The purpose of
spousal maintenance is to prevent financial and social hardship and disruption
which the divorce may cause a person who has been dependent on the other spouse
for financial support. Either spouse is eligible to receive such maintenance,
if it is appropriate.
The court may order
or approve the payment of spousal maintenance when one spouse lacks sufficient
resources (income and/or property) to provide for her/his own reasonable needs
or is unable to support herself/himself through employment at the standard of
living established in the marriage.
The court considers
the following when making a decision about spousal maintenance:
• the money and property available to the spouse who is asking for maintenance,
the property awarded in the divorce, the spouse’s ability to meet her/his
needs independently and whether the amount of child support includes any money
for the spouse (such as a housing allowance)
• the time it will take and the cost to get sufficient education or training
to enable the spouse seeking maintenance to find appropriate employment
• the standard of living during the marriage
• the length of the marriage
• the age and physical and emotional condition of each spouse
• the ability of the other spouse to meet her/his reasonable needs while
also meeting the needs of the spouse seeking maintenance
• an adjustment for inflation
If you want to
seek spousal maintenance, you must ask for it during the divorce process because
you cannot ask for it after the divorce is final. Once spousal maintenance is
ordered by the court, the amount and length of time it is ordered may be changed
later if there is an unanticipated substantial change of circumstances. While
maintenance often ends when you remarry, it sometimes continues past remarriage.
For example, if it is ordered in part as repayment for the contributions you
made to the marriage partnership (such as helping a spouse through school),
or if the remarriage does not improve your financial security.
Parental Rights
and Responsibilities (“Custody”)
Often, the most significant issue in contested divorces is who will have custody
of the children. This is referred to as parental rights and responsibilities.
There are two major
parts to parental rights and responsibilities (“custody”). One is
called legal rights and responsibility (the right to make major life decisions
for the child, such as education, medical and dental care, religion and travel
arrangements). The other is called physical rights and responsibility (the right
to provide routine daily care and control of the child - this is usually the
parent with whom the child will primarily live).
When parents are in dispute over the custody of their children the court will
decide how to assign these parental rights and responsibilities - in other words,
who will be the primary parent. (As of this 1998 edition, the law in Vermont
was still developing, regarding whether, how and under what circumstances parental
rights and responsibilities can be divided in contested custody cases.)
Vermont law requires
that the court take the following factors into consideration when deciding which
parent should be awarded legal and/or physical rights and responsibilities,
in the best interests of the child:
• the relationship of the child with each parent and the ability and disposition
of each parent to provide the child with love, affection and guidance;
• the ability and disposition of each parent to assure that the child receives
adequate food, clothing, medical care, other material needs and a safe environment;
• the ability and disposition of each parent to meet the child’s present
and future developmental needs;
• the quality of the child’s adjustment to the child’s present
housing, school and community and the potential effect of any change;
• the ability and disposition of each parent to foster a positive relationship
and frequent and continuing contact with the other parent, including physical
contact, except where contact will result in harm to the child or to a parent;
• the quality of the child’s relationship with the primary care provider,
if appropriate given the child’s age and development;
• the relationship of the child with any other person who may significantly
affect the child; and
• the ability and disposition of the parents to communicate, cooperate
with each other and make joint decisions concerning the children where parental
rights and responsibilities are to be shared or divided;
• evidence of abuse and the impact of the abuse on the child and on the
relationship between the child and the abusing parent.
(For information about changing a court’s decision on parental rights and
responsibilities see later section on “Changing Court Orders.”)
Children’s
Rights in Contested Custody Cases
Because decisions regarding children can be very difficult to make, the courts
sometimes seek the advice of other professionals, such as psychiatrists and
social workers, when parental rights are contested. The court often appoints
a guardian ad litem to represent the best interests of the child. A guardian
ad litem is a person who looks out for the child’s interests in court.
This person may or may not be a lawyer.
The law discourages
testimony of minor children. Before a child may testify, a guardian ad litem
must be appointed for the child and a hearing must be held to determine whether
the testimony of the child is needed, whether the importance of the testimony
outweighs the potential harm to the child and whether the evidence cannot be
obtained from another source. If the testimony of the child is found to be necessary,
a lawyer must be appointed to represent that child.
Parent / Child
Contact (“Visitation”)
In contested cases, the court will also decide the extent and frequency of contact
that a child will have with each parent. This is familiarly known as “visitation.”
Even if one parent is given the sole legal responsibility for the children,
the other parent will be given the right to have parent-child contact.
It is the public
policy of Vermont that after parents have separated, it is in the best interests
of minor children to have maximum physical and emotional contact with both parents,
unless direct physical harm or significant emotional harm to the child or a
parent is likely to result from such contact. If there is a risk to the child,
limitations may be placed on the parent such as restricting where the parent
may visit the child or prohibiting alcohol and drug use during visitation.
Even when there
are serious concerns about a child’s safety, a parent will usually not
be denied contact completely. The contact may be ordered to occur only under
the supervision of an appropriate person or structured to protect the child
and give the parent the opportunity to change and to be more responsible as
a parent. Some counties have “supervised visitation centers” which
can be used when a child is at risk. Denying a parent contact with the child
is usually only ordered by a court when all other options have failed.
How much time a
spouse can spend with the child does not depend on how much child support is
being paid, or even if it is being paid. If a spouse does not pay child support,
the custodial spouse cannot prevent that spouse from spending time with the
children. Although you are entitled to enforce payment of child support through
the courts, you may not do so by limiting visitation rights. In fact, a parent
can file a motion asking the court to enforce visitation rights, if they have
been denied by the custodial parent. Similarly, if one parent refuses the other
parent contact with the children, this does not permit or excuse non-payment
of child support.
Courts cannot force
a parent who is not spending enough time with the children to change such habits.
In this situation, education or counseling is more likely to help.
If one parent decides
to relocate, the parenting arrangement may have to be renegotiated or decided
by the court to insure the children still have the opportunity to spend time
with both parents. At the time of the writing of this edition, it seems to be
the law in Vermont that the parent with primary rights and responsibilities
cannot be prevented from moving out of state with the children. But the portion
of the divorce order regarding parent-child contact (“visitation”),
as well as possibly other provisions, will probably have to be reworked in court
or by agreement.
Grandparents
Visitation
A court can award grandparents the right to visit their grandchildren, if the
grandparents have made a written request to the court during an ongoing divorce
case. The court will determine if this formal order for visitation is in the
best interests of the grandchildren, based on consideration of a number of factors.
Grandparents also have the right to seek formal visitation if the parent of
the child has died, is physically or mentally incapable of making a decision,
or has abandoned the child.
Child Support
As soon as a divorce is started, a hearing will be scheduled to determine how
much child support needs to be paid. Both spouses will have to attend that hearing
in a contested case. Both parents have a legal and moral obligation to support
their children. The purpose of child support is to help ensure that the children
will be supported in the same manner as they would have had the parents continued
to live in the same household. Child support takes into consideration the true
costs of raising children and the standard of living the children had when the
parents were together. The amount of the support obligation is determined by
the combined available income of both parents.
Vermont law has
established “child support guidelines” which set the amount of child
support based on the available income and number of children. Vermont law requires
the following to be done, in order to determine the support obligations:
• Both parents have to complete a form called “Affidavit of Income
and Assets.” These forms have to be exchanged between the spouses and also
filed with the court.
• Each parent has the right to see the other parent’s four most recent
pay stubs, or if the parent is self-employed, the business records of income
and expenses.
• Each parent must exchange income tax returns for the past two years and
file a form with the court stating that the exchange has taken place.
• Once the gross incomes of both parents have been determined, the child
support guideline tables are used to find the “after tax income” for
each parent. Deductions are given to the parent who pays for the health insurance
of the children, for a parent who has other minor children living in his or
her household, and for a parent who is paying other child support obligations.
Child support orders do not take into account any unemployment which is voluntary.
For example, a parent cannot get out of making child support payments simply
by quitting his/her job.
• The calculations will also take into account the cost of any child care
which is required for a parent to work or go to school, and the cost of extraordinary
educational and medical expenses for the children.
• The guidelines also take into consideration how much time the children
will spend with each parent (whether there is sole physical custody with one
parent or shared physical custody), or whether the physical custody of the children
is being divided between the parents (with some children living with one parent
and some with the other).
In addition to
establishing the child support amount, the Magistrate will also make orders
for the children’s medical and health support, if that has not already
been agreed to by the parents. Either parent may be ordered to include and pay
for health insurance for the children if either has a reasonable policy through
their employment. Any health expenses of the children which are not covered
by insurance (medical, dental, orthodontic, optical, prescription, etc.) will
be part of the shared obligation of the parents. Expenses over $200 per year
are considered “extraordinary” and will be divided between the parents
based on the income of each. (Also see Insurance chapter, section entitled “Coverage
of Children - Child Support Orders.”)
If child support
is contested, the court will order that support payments have to be made until
each child reaches adulthood. In Vermont, “adulthood” is achieved
when the child is 18 years of age or finishes high school, whichever event occurs
later.
A parent who believes
that the guideline amount would be unfair, may request the Magistrate to hold
a “deviation hearing.” In deciding whether to change the child support
amount, the Magistrate has to consider certain factors. The parent who requests
the hearing must convince the Magistrate that based on the factors listed below
the guideline payment is unfair to one of the parents or to the child:
• the financial resources of the child
• the financial resources of the custodial parent
• the standard of living the child would have enjoyed if the parents had
continued to live together
• the physical and emotional condition of the child
• the educational needs of the child
• the financial resources and needs of the non-custodial parent
• inflation
• the costs of meeting the educational needs of either parent, if the costs
are incurred for the purpose of increasing the earning capacity of the parent
• extraordinary travel expenses incurred in exercising the right to periods
of visitation or parent-child contact
• any other factor the Magistrate finds relevant
Wage Withholding
Under Vermont law, child support orders must require an employer to withhold
the child support payment from the paying parent’s wages or other source
of regular income, even if the parent is not behind in making payments. The
employer is instructed to withhold the support from each paycheck and send it
to the Office of Child Support which keeps a record of the payment and then
sends it to the receiving parent.
The purpose of
withholding is not to punish the parent making the payment but to protect the
child and to set up a simple system for guaranteeing that payments are made
regularly and on time. Withholding also makes life easier for the paying parent
since it saves time and protects that parent from deciding not to pay if money
is tight. Under the Vermont withholding law, child support - just like taxes
- is deducted automatically from a person’s paycheck. (Wage withholding
cannot be ordered when the parent is self-employed, although the other methods
for ensuring collection can be used.) In some cases, where both parents agree
in writing that they do not want withholding, the Magistrate may approve what
is called a direct payment order. Under direct payment, the paying parent has
sole responsibility to ensure that the child support is sent in full and on
time according to the terms of the court order. Under such arrangement there
is no third party (i.e. the Office of Child Support Registry) to keep track
of each payment. Parents must keep their own written records of the payments.
If parents cannot
agree on direct payment, but one parent feels strongly that withholding shouldn’t
occur, the Magistrate will consider whether there is a history of financial
responsibility by that parent towards the family. If the Magistrate finds that
support has always been paid regularly by that parent in the past, the court
may approve a direct payment order. If you have a direct payment order, however,
payments must always be made on time. If a parent with a direct payment order
is ever late by 7 days or more with a single payment, the court, upon request
by the other parent, will
revoke the right to make direct payment and order that all future payments be
withheld from the paying parent’s paycheck. Also, if a parent has applied
to the Office of Child Support for services, OCS may issue an administrative
wage withholding order without going back to court, if the amount due is more
than one month’s support payment.
Maintenance
Supplement
If the lifestyle of the children would be significantly better if the children
lived with the non-custodial parent (the parent who does not have primary physical
custody of the children), the court can order that parent to pay an additional
amount of child support (a “maintenance supplement”). This can occur
only if the primary custodial parent requests such a supplement.
The court will
take into account the financial circumstances of both parents, including their
gross income, assets, debts and the amount of child support being paid.
Bankruptcy
If the spouse who is required to pay child support files for bankruptcy, he
or she will still be responsible for paying that child support. It is also likely
that the bankruptcy will not interfere with a spouse’s obligation to continue
to pay any alimony or maintenance.
There are a number
of potential effects that bankruptcy can have on the final divorce order, including:
• If the person filing for bankruptcy owes some property as part of the
divorce order to an ex-spouse, this property award can be canceled (“discharged”)
by the Bankruptcy Court if the debtor doesn’t have the ability to pay.
But it won’t be discharged “if discharging the debt would result in
a benefit to the debtor that outweighs the detrimental consequences to a spouse,
former spouse or child of the debtor.” In other words, this debt will still
have to be paid if not doing so would do more harm to the spouse than being
a benefit to the debtor. (This change to the Bankruptcy Code became effective
in late 1994.)
• If your spouse has been ordered to make payments on a certain loan (including
such things as credit card payments and mortgages) and this obligation is “discharged”
(canceled) by the Bankruptcy Court, if the loan was originally signed by both
of you the creditor can try to collect it from you despite the final divorce
order from the court.
Child
Support Enforcement
Vermont and federal laws provide a number of different ways for a parent
to enforce child support orders and to collect unpaid child support payments.
A number of laws passed in the 1980s and 1990s have been designed to address
the issue of the non-payment of child support, as well as other domestic relations
issues. These include the Vermont Child Support Act passed in 1990 and amended
in 1995, the federal Child Support Recovery Act of 1992, and the federal Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (federal “welfare
reform.”) These laws, or portions thereof, regarding child support were
changed to provide easier court access, greater protection and a quicker process
to deal with enforcement of non-payment of child support.
If one parent stops
making child support payments which have been ordered by the court, or begins
paying less than what the court ordered, the following options exist for enforcement:
1. The Office of Child Support (a Vermont state agency) provides free assistance
for anyone in Vermont, regardless of income, in enforcing child support orders
and collecting unpaid child support. (See Resource chapter - Domestic Relations)
2. You can go back to court on your own (or with a lawyer) and file a “Petition
to Enforce.”
Office of Child
Support
In order to get assistance from the Office of Child Support (“OCS”),
you need to request their services by filling out a written application. Parents
who receive public assistance (ANFC) will automatically receive the services
of OCS when their case is referred by the Vermont Department of Social Welfare.
OCS has the authority
to take the following collection actions through an administrative process rather
than by going back to court:
• If the amount of child support owed is at least $500, OCS can intercept
and take the income tax refunds of the parent who has not paid the child support.
• OCS can order wage withholding (if it was not included in the original
court order) or it can increase the amount of wage withholding to help repay
owed child support.
• OCS can also tie up property such as bank accounts, by issuing a lien
or trustee process on the property in order to collect the child support owed.
• If the amount owed is more than 3 months of support, OCS can also report
this non-payment to credit bureaus so that the delinquent parent will have difficulty
getting loans unless the support is paid.
• If the delinquent parent has won the lottery in Vermont, OCS can withhold
and use those lottery winnings to pay for any owed child support.
• OCS might decide to file a Petition to Enforce with the court, in order
to represent the State’s interest in the well being of children.
While OCS may take these actions to help you obtain child support, OCS cannot
directly represent you.
Petition to
Enforce
If you choose to go to court to enforce a child support order, you will need
to file a Petition to Enforce. In this petition you should state how much support
is owed and ask the court to order it to be repaid. You must also attach an
Affidavit which describes how the other parent has violated the order. It is
also possible for the Office of Child Support to file a Petition to Enforce
in court, so that it can seek remedies that are beyond its administrative abilities
to order.
After the other
parent has been served with all the paperwork filed with the court, an enforcement
hearing will be held. The court might order any of the following, depending
on what is determined at the enforcement hearing:
• Payment of the back child support in a lump sum, if the delinquent parent
is able to do so.
• A repayment plan to pay all the back child support over time. (Interest
of 12% per year is supposed to accumulate on all unpaid portions of an enforcement
order.)
• An order to participate in employment, educational or training related
activities if the court finds that they would help address the reasons why the
parent has not paid or has fallen behind in paying child support.
• An order to participate in substance abuse or other counseling if the
court believes it will help the non-paying parent keep stable employment.
• If the delinquent parent is unemployed, the court can order that person
to seek work or community service immediately. The court will also order that
person to report to the court, the other parent or the Office of Child Support
on a weekly basis regarding the efforts to find work. If the parent fails to
look for work, the court can find the parent in contempt of court.
• If the court determines that the delinquent parent deliberately failed
to pay the ordered child support, the court can order a 10% penalty on amounts
overdue by more than 30 days. In addition, the court can order that parent to
pay the other parent’s attorney fees and costs which they had to pay for
having to come to court to enforce the child support order.
• If the court finds that the delinquent parent owes child support under
a previous order of the court and that there is a delinquency of at least two-twelfths
of the annual child support obligation, the court can order the suspension of
the delinquent parent’s motor vehicle license (driver’s license).
Under the “motor vehicle license suspension” provision of the law
passed in 1995, the Vermont Department of Motor Vehicles is required to suspend
the license of any person so ordered by the court, unless the person shows that
he or she has complied with the required payments. The license will be reinstated
after notification from the court or the Office of Child Support that the child
support has been paid.
• If the delinquent parent has a professional license, a driver’s
license, or a hunting or fishing license issued within Vermont, you or OCS can
also ask that the court suspend such a license. The parent’s license may
not be renewed (unless the parent can show s/he is up to date in child support
payments or has made a plan to become current).
Contempt
If the court determines that a parent willfully disobeyed a court order to pay
child support, and had the ability or capacity to pay, the court can find that
person in contempt of court. The penalty for contempt of court in such a situation
could include the payment of a fine or putting the person in jail until the
support which is owed is fully or partially paid. Contempt is the last resort
to make a parent comply with an order.
Enforcement of Interstate Child Support Orders
As of January 1998, Vermont adopted the federal Uniform Interstate Family Support
Act. (UIFSA). This new tool governs interstate child support enforcement and
has been adopted in thirty-four other states as of 1997. UIFSA replaces the
Uniform Reciprocal Enforcement of Support Act (URESA), which had been in effect
in Vermont previously.
UIFSA is designed to make it easier and quicker to process child support enforcement
cases when dealing with out-of-state parents, by allowing cases to be brought
in one state instead of two. There is also a provision for direct withholding
which should help children receive support more quickly since payments will
not have to be routed through more than one state.
In the remaining cases that still require action by more than one state, UIFSA
seeks to improve the processing of such enforcement orders by:
• providing for only one support order at a time governing the same parents
and child, thereby eliminating confusion associated with multiple orders;
• providing for the enforcement of orders without the possibility of modification
or the
establishment of an unwanted new order, in contrast to existing law in many
states;
• improving communication and cooperation between states by providing for
improved transmission of evidence and assistance with discovery; and
• encouraging use of expedited administrative procedures.
Changing or Modifying Court Orders
If you want to change the terms of your final divorce order regarding parental
rights and responsibilities (custody), parent-child contact (visitation), or
child support you must go back to court. You would do this by filing a Motion
to Modify and an accompanying Affidavit. The court will only grant a change
if you can show that there has been a real, substantial and unanticipated change
of circumstances and that granting the modification would be in the best interests
of the child. The court may hold a hearing on your motion, but it can also deny
it without a hearing if the court believes insufficient facts have been stated
to support granting the requested changes. Either party can file a motion in
court asking for a modification of a prior court order.
If you are seeking
a change in the child support portion of the final divorce order, you have the
right to have the order reviewed at least once every three years, even without
a preliminary showing that there has been a “real, substantial and unanticipated
change of circumstances.”
Reasons for seeking
a modification of a child support order may include:
• substantial changes in one parent’s income (at least 10% up or down)
• involuntary loss of employment
• replacement of wages by unemployment compensation, worker’s compensation
or disability benefits
• a promotion, a higher paying job or a substantial inheritance
• changes in the parenting plan, such as when the children live with the
non-primary parent for longer periods of time
A non-custodial parent cannot ask the court to change (lower) an existing child
support order simply because a new dependent resides in his or her household.
If the parent to whom child support is being paid petitions the court for an
increase in child support, however, the court can take into account any new
dependents that are in the non-custodial parent’s household.
Sometimes parents
agree to make informal changes to a child support or other divorce related order.
This can be done, but such informal changes cannot then be enforced by the court.
Therefore, if you want any such modifications to be enforceable, you should
present them to the court for its approval. If approved by the court, it becomes
a new order and can then be enforced.
Separation
of Unmarried Same-Sex and Opposite-Sex Couples
The laws of divorce in Vermont do not apply to unmarried same-sex and opposite-sex
couples. In the event that such a couple separates and is unable to reach an
agreement as to how to divide their joint property, either or both parties can
bring a case in Superior Court to decide this question. The court will usually
apply general principles of partnership law as if you had been in business together
and may apply equitable considerations, as well. Because the laws are not well
suited to resolving disputes that arise when unmarried couples break up, you
may want to seriously consider alternative dispute resolution processes such
as mediation or arbitration.
When unmarried
same-sex or opposite-sex couples separate, if the unmarried partners are both
legal parents to any children, whether due to adoption, parentage proceedings
or acknowledgment, the Family Court can decide cases regarding parental rights
and responsibilities, parent-child contact and child support with respect to
those children.
Establishing
Parentage
A parent seeking to establish that a particular person is the child’s other
biological or legal parent, or a parent seeking to establish that he or she
is the child’s biological or legal parent, may file a case in Vermont Family
Court. Establishing parentage can also be made part of a case for divorce, annulment
or separate maintenance. The Office of Child Support may also file a case to
establish parentage in the Family Court if a parent has applied for OCS services.
A case to establish parentage action has to be accompanied by an Affidavit from
the person alleging parentage which states the facts demonstrating that the
person is the parent of the child.
The person who
is seeking to have parentage established can ask the court to require the child,
the person alleged to be the parent and any acknowledged parent to submit to
appropriate genetic testing to determine parentage. The only way to avoid such
testing is if the court finds that there is good cause to exempt the person
from testing. The OCS may also require all parties to appear for genetic testing
at the time of filing.
Once the results
of the tests are obtained by either party, they must be made available to the
other party. If the test results are going to used at the hearing, this fact
must be given to the other side and the test results have to be made available
at least 15 days before the hearing.
If the alleged
parent refuses to comply with an order to submit to genetic testing, he or she
will be presumed to be the parent. If the probability that the alleged parent
is the biological parent is greater than 98 percent, as established by a scientifically
reliable genetic test, that person will be presumed to be the parent.
Child
Snatching
If a person has custody of the children and the spouse or former spouse “snatches”
them or refuses to return them from visitation, s/he may contact the police
and the state’s attorney in the county in which s/he lives. Under Vermont
law it is a crime for a relative to take or keep a minor child from the lawful
custodian, if they do not have the legal right to do so. This is called “custodial
interference” and can be punishable by up to 5 years in prison and/or a
fine up to $5,000.
The Vermont Office
of Child Support has “parent locator” services, which may be of help
to you if you do not know where your children are.
Relevant Laws
Vermont:
Child Support Enforcement, 15 V.S.A. §§ 606, 780, et seq.
Divorce, 15 V.S.A. Chapter 11
Family Court, 4 V.S.A. Chapter 10
Grandparents Visitation, 15 V.S.A. §1011, et seq.
Legal Separation, 15 V.S.A. §§555, 753
Office of Child Support, 33 V.S.A. § 4101, et seq.
Parentage Proceedings, 15 V.S.A. § 301, et seq.
Uniform Child Custody Jurisdiction Act, 15 V.S.A.
Chapter 19
Uniform Interstate Family Support Act (UIFSA), 15B V.S.A. Chapters 1 - 9
Vermont Rules for Family Proceedings
Federal:
Bankruptcy Code, 11 U.S.C.A. §§523 (a)(5) and (15)
Child Support Recovery Act of 1992, Pub.L.102-521
Family Support Act of 1988, Pub.L.100-485
Personal Responsibility & Work Opportunity Act of 1996, Pub.L.104-193
Education
Women
need to be aware of their rights regarding discrimination and harassment, the
rights of students with disabilities as well as the rights of pregnant and parenting
students in schools and other educational institutions.
Discrimination
and Harassment
Students have the right to an education in an environment that is free from
discrimination and harassment, whether it be in elementary or secondary schools
or in colleges and universities.
Under the federal law, Title IX of the Education Amendments of 1972, discrimination
on the basis of sex is prohibited. Title IX applies to all educational programs
or activities which receive federal assistance, regardless of which part of
the program or activity receives the federal assistance. Title IX also prohibits
stereotyped or sex-biased athletics, course assignments and student counseling.
Some exceptions to Title IX exist for religious, private military schools and
private single-sex schools. But the U.S. Supreme Court has generally held that
publicly funded single-sex schools and programs, including military schools,
may not be sex-exclusive. This might be true for female-only as well as male-only
public schools and programs.
Vermont law also prohibits sex discrimination in schools. This can be found
in the public accommodations provisions of Vermont’s Fair Housing and Public
Accommodations Act. The definition of “a place of public accommodation”
is written to specifically include “schools.” In addition to sex discrimination,
Vermont law also prohibits discrimination against students on the basis of their
race, color, religion, national origin, marital status, sexual orientation and
disability.
One of the few exceptions to the laws against sex discrimination in schools
is for single-sex sports teams, but this usually applies only if there are equal
opportunities for girls and boys to play the same sport. For example, if there
is a boys soccer team and a girls soccer team, they can be separated by sex,
but if there is only one soccer team at the school it must be open to both girls
and boys.
Sexual Harassment
In 1994, Vermont passed the Harassment in Education Act. This law makes it clear
that harassment of students on the basis of race, color, religion, national
origin, marital status, sex, sexual orientation or disability is an unlawful
form of discrimination. It defines harassment and requires schools to have policies
against harassment as well as procedures to handle complaints of harassment.
It is possible that a student could suffer unlawful harassment by a teacher,
administrator, school staff person, school bus driver, school contractor or
another student.
Sexual harassment
is defined as unwelcome sexual advances, requests for sexual favors and other
verbal or physical conduct of a sexual nature when:
• Submission to that conduct is made either explicitly or implicitly a
term or condition of a student’s education.
— for example, when a teacher promises a higher grade in exchange for the
performance of sexual favors
• Submission to or rejection of such conduct by a student is used as a
component of the basis for decisions affecting that student.
—for example, when a student is rejected for a particular sports team because
she has refused the sexual advances of the coach
• The conduct had the purpose or effect of substantially interfering with
a student’s educational performance or creating an intimidating, hostile
or offensive educational environment.
—for example, frequent and unwelcome sexual remarks directed at a student
by one or more students or teachers; unwanted sexual contact caused by another
student, teacher or school agent or employee
Racial and Other Forms of Harassment
Harassment of students on the basis of any of the other protected categories,
i.e. race, color, religion, national origin, marital status, sexual orientation
or disability are also prohibited by Vermont’s Harassment in Education
Act. The law defines such harassment as:
• verbal or physical conduct based on any of the protected categories which
has the purpose or effect of substantially interfering with a student’s
educational performance or creating an intimidating, hostile or offensive environment
Just as sex harassment and discrimination of students is prohibited under Title
IX of the federal law, harassment and discrimination on the basis of race, color
and national origin is prohibited under federal Title VI of the Civil Rights
Act of 1964. In 1994 the Office of Civil Rights for the U.S. Department of Education
issued guidelines regarding how to appropriately recognize and deal with harassment
of students based on race, color and national origin. Furthermore, harassment
and discrimination of students on the basis of their disability, is also prohibited
under Section 504 of the federal Rehabilitation Act of 1973 and the Americans
With Disabilities Act, Title III.
Addressing Discrimination
and Harassment
(See Resources chapter - Education)
If you believe you, or your child, has suffered discrimination or harassment
in school, you have a number of options.
• file a complaint with the Vermont Human Rights Commission
• file a complaint with the Vermont Department of Education
• file a complaint with the U.S. Department of Education, Office of Civil
Rights
• consult with a private attorney
Students
With Disabilities
If you have a child (from birth through age 21) that you, the school or a social
service agency thinks may have a disability which qualifies her/him for special
education services, you or the school may request that your child receive a
comprehensive special education evaluation.
If your child is
under the age of 5 years, the evaluation will determine whether your child suffers
from a developmental delay.
If your child is over the age of 5 years, this evaluation will determine:
• whether your child has a disability
• whether that disability negatively affects your child’s performance
at school (in one or more of the basic skill areas, and
• whether your child needs specialized instruction to meet his or her needs
Vermont has revised
its Special Education Rules a number of times and has expanded the list of disability
categories to also include children with autism and traumatic brain injury.
Children with attention deficit disorder (ADD) or attention deficit/hyperactivity
disorder (ADHD) usually are included under the categories of other health impairments.
If your child has
never been evaluated before, your consent to the testing is required before
the evaluation can take place. (It is also possible that the school can ask
a Hearings Officer from the Department of Education to order an evaluation to
take place.) The school’s Evaluation and Planning Team (EPT) must develop
a plan to evaluate your child, including information provided by you. You are
a member of the EPT and have the right to receive a copy and review the comprehensive
evaluation report, as well as have it explained to you. If you disagree with
the results of the school’s comprehensive evaluation you have the right
to request an independent evaluation at the school’s expense.
If the evaluation
finds that your child meets the three criteria listed above (often referred
to as the “three gates,” your child will be entitled to receive special
education and related services. An Individualized Education Program (IEP), based
on your child’s unique, individual needs will be developed. Whenever the
IEP team for your child meets, you have the right to be given advance written
notice of the meeting. This written notification should include:
• the purpose of the meeting (including whether transition needs or services
will be discussed)
• who will be there (including your child and representatives from other
agencies, if a transition is being discussed)
• where and when it will take place
Your child’s IEP must include certain specific information such as:
• Current educational performance, describing how well your child is doing
in academic areas (such as arithmetic, reading and writing) and in other areas
(such as social and emotional development and motor, language, vocational and
recreational skills)
• Annual or long-term goals for academic and other skills
• Short-term objectives, detailing measurable, intermediate teaching steps
to help your child reach the annual goals
• Methods for determining the progress of your child
• Special education and related services which your child will receive,
including how often and for how long those services will be provided, who will
provide them and in what instructional setting they will be provided
• Amount of specialized instruction your child will receive
• Time in regular and special education settings
• Reasons for special education setting
• Accommodations, modifications or supplemental aids and services such
as changes in teaching methods or materials or any physical aids that will help
your child get the most out of his or her education
• Reintegration plan which is a specific plan for returning your child
to regular education settings if he or she receives more than half his or her
instruction in special education settings
• Transition needs, beginning at age 14 and transition services beginning
at age 16
• Statement of whether your child can participate in the state or district-wide
assessments of student achievement, whether accommodations are needed in order
to participate in the assessment or whether they would require an alternate
assessment is required
• Statement concerning the transfer of rights to the student at the age
of 18
Parents must be given a Parental Rights document by the school. Students who
receive special education services must be re-evaluated at least every 3 years.
A re-evaluation also is required if you or the school request it or if the school
proposes a significant change in your child’s program or placement.
Addressing Disagreements about your Child’s IEP
(See Resources chapter - Education)
If you disagree with the services described in your child’s Individualized
Education Plan (IEP), you can:
• request a meeting with your child’s IEP team at the school
• submit a written request for mediation to the Vermont Department of Education
(but mediation of the problem can only occur if the school agrees to go to mediation)
• request a due process hearing by writing to the Commissioner of Education,
if you cannot work out your problems with the school through informal advocacy,
negotiation or mediation (you may want the help of a lawyer if you choose this
option)
• appeal an unfavorable due process decision by filing a complaint in the
Vermont Superior Court in the district where you live or with the U.S. District
Court
If you disagree with the results of an evaluation, you can:
• request that the school re-evaluate your child or request an independent
evaluation (these options may only be available in certain circumstances)
If you have problems
with how the school is generally dealing with your child, you can:
• file an administrative complaint with the Vermont Department of Education
and have the Commissioner of Education make a decision based on an investigation
of your complaint. (This option may only be available in certain circumstances.)
If you disagree with the commissioner’s decision, you can ask the U.S.
Department of Education to review the decision.
Additional Rights
If an evaluation determines that your child has a disability but is not eligible
for special education, your child might still be eligible for some reasonable
accommodations. These rights are available under Section 504 of the federal
Rehabilitation Act of 1973 and under the Americans With Disabilities Act, Title
III. The school must inform parents of these rights, write a plan under Section
504 and provide reasonable accommodations and/or services for eligible students.
Pregnant
and Parenting Students
Students who are pregnant or parenting are protected from being discriminated
against by their schools. This is recognized by both Vermont and federal law.
Schools must provide an opportunity for such students to participate in and
complete their public school education, and to do so without being subjected
to discrimination.
Through a number of amendments in 1991 and 1996, Vermont laws allow a pregnant
or postpartum student to attend any approved public school in Vermont or an
adjacent state, an approved independent school in Vermont, or another educational
program approved by the Vermont State Board of Education. The law also requires
the state to pay the educational costs for a pregnant or postpartum student
who wants to attend a state board approved educational program in a 24-hour
residential facility for up to eight months after the student has given birth.
This can be extended if there is a plan for reintegrating the student into the
community which is approved by the Vermont Commissioner of Education.
Relevant Laws
Vermont:
Fair Housing and Public Accommodations Act, 9 V.S.A. §§ 4501, 4502
Harassment in Education Act, 16 V.S.A. §§ 11(a)(26), 166, 565, 2182,
2284
Special Education Act, 16 V.S.A. § 2941, et seq.
State Board of Education Manual of Rules and Practices, Rules 2360-2369
Federal:
Americans With Disabilities Act, Title III, 42 U.S.C.A. §12181, et seq.
Federal regulations for IDEA, 34 CFR Part 300
Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §1400,
et seq.
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. §794, et seq.
Title IX of the Education Amendments Act of 1972, 20 U.S.C.A. §1681, et
seq.
Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. §2000d
Employment
Rights
As a
working woman, you need to be aware of the many state and federal legal rights
which are relevant to various stages in your employment.
These can include discrimination, harassment, parental and family leave, drug
testing, minimum wage, overtime, unemployment compensation and workers’
compensation, as well as others.
Discrimination
and Harassment
Employment discrimination is unlawful under a number of different federal laws,
if the discrimination is based on a person’s sex, pregnancy, race, color,
religion, national origin, physical or mental disability, or age. The four significant
federal laws are Title VII of the federal Civil Rights Act of 1964, the Pregnancy
Discrimination Act, the Americans With Disabilities Act and the Age Discrimination
in Employment Act.
In addition to
the above-listed “protected categories” it is against the law in Vermont
to discriminate in employment on the basis of sexual orientation, place of birth,
ancestry or having a positive HIV-related blood test. The Vermont law is referred
to as the Fair Employment Practices Act.
Under Vermont’s
Fair Employment Practices Act, all employers who have one or more employees
are covered. The federal law prohibits discrimination on the basis of sex, race,
color, religion and national origin for all employers with ten or more employees.
If the discrimination is on the basis of disability, the employer must have
fifteen or more employees and if it is on the basis of age, the employer must
have twenty or more employees, for the federal law to apply.
Under the federal
Executive Orders 11246 and 11375, if you are employed by a company or institution
that has a contract or grant of $10,000 or more from the federal government,
you may also have additional rights against discrimination on the basis of sex,
race, color, religion and national origin.
Sex Discrimination
Unlawful sex discrimination can occur at any stage of the employment process.
You should consider whether you have been treated unequally or subjected to
different terms or conditions of employment because of being a woman in any
of the following areas of employment:
• recruitment (for example, only recruiting from male-dominated fields)
• hiring (for example, discouraging women from applying; not giving equal
consideration to or refusing to hire)
• firing (for example, using different standards for women and men in deciding
whether to terminate)
• training (for example, not providing equal training opportunities to
women and men)
• job assignments (for example, making assumptions about what work women
can do)
• promotions (for example, promoting a man over a more qualified woman;
routinely passing over women
for promotion)
• pay (for example, paying women at a different rate than men for the same
or substantially similar
work)
• benefits (for example, providing different benefits to women than men,
such as pension and life
insurance plans, health insurance and dates of optional retirement)
• lay offs (for example, applying sexist and unequal standards when making
lay-off decisions, such as
thinking it would be harder on a family for a man to lose his job than a woman
to lose hers)
• leave (for example, not allowing women to take leaves in the same way
or for the same reasons as
men)
• treatment on the job, e.g. discipline, harassment (see later section
on Sexual Harassment)
• all other employment related activities
Sexual Harassment
Sexual harassment is a particular form of sex discrimination. The fact that
no person should have to put up with sexual harassment, and that an employer
is responsible for maintaining a workplace free of sexual harassment, began
to be recognized by the law in the early 1980’s.
In 1980, the Equal
Employment Opportunity Commission (EEOC) (the federal employment discrimination
enforcement agency), published its Guidelines on Sexual Harassment. These guidelines
helped form the basis of sexual harassment law which has been developing in
state and federal courts since then.
The EEOC definitions
of sexual harassment became part of Vermont’s Sexual Harassment in Employment
Law, which was passed in 1993. The law defines sexual harassment as follows:
“Sexual harassment” is a form of sex discrimination and means unwelcome
sexual advances, requests for sexual favors, and other verbal or physical conduct
of a sexual nature when:
(A) submission to that conduct is made either explicitly or implicitly a term
or condition of employment; or
(B) submission to or rejection of such conduct by an individual is used as a
component of the basis for employment decisions affecting that individual; or
(C) the conduct has the purpose or effect of substantially interfering with
an individual’s work performance or creating an intimidating, hostile or
offensive work environment.
In plain language, there are really two forms of sexual harassment. The first
is referred to as “quid pro quo” (“this for that”) and involves
situations where an employer or supervisory level employee requests or requires
a person (most often a woman) to exchange sexual favors for some job benefit
(for example, being hired, promoted, getting some fringe benefit) or to prevent
some negative job-related action (for example, being fired, getting a bad evaluation,
not being allowed to go for special training). An employer will be held responsible
for quid pro quo harassment whether or not the employer was aware that it had
occurred.
The second form
of sexual harassment is referred to as “hostile environment.” In proving
a case of hostile environment sexual harassment, the conduct or behavior must
be:
• either sexual in nature or directed at only one sex, and
• frequent or repeated behavior, or a single severe incident (otherwise
referred to as either “severe or pervasive”), and
• unwelcome, and
• unreasonably interfering with a person’s ability to perform work
or creating an abusive environment within which to work
An employer will usually be held responsible for hostile environment harassment
if it was caused by a supervisor (this might depend on the level of management
authority of the supervisor). If the harassment is caused by a co-worker the
employer may be held liable if the employer knew or should have known of the
harassment and failed to take prompt and appropriate action in response to this
knowledge.
Under Vermont’s
Sexual Harassment in Employment Act, all employers are required to have a sex
harassment policy, to provide it to every employee and to display a poster which
also describes the employer’s policy against sexual harassment. The policy
and poster also have to include a description of how an employee could file
a complaint with an appropriate state and federal agency. If the employer has
more than five employees, the policy and poster are also required to provide
a description of how an employee could file an internal complaint with the employer.
Pregnancy Discrimination
- Discrimination that is directed at women because they are pregnant is another
form of unlawful sex discrimination in employment. In 1978, Congress enacted
the Pregnancy Discrimination Act, making it clear that a woman cannot be discriminated
against in employment simply because she is pregnant. This means that an employer
cannot make assumptions about what types of jobs a pregnant woman is capable
of performing, cannot refuse to hire a pregnant woman and cannot fire a woman
because she is pregnant.
In 1997, in the
case of Lavalley v. E.B. & A.C. Whiting Co., the Vermont Supreme Court specifically
recognized that sex discrimination under Vermont’s Fair Employment Practices
Act also covers discrimination on the basis of pregnancy.
Equal Pay - In addition to a woman’s right not to be subjected to unequal
treatment in pay under Vermont’s Fair Employment Practices Act and Title
VII of the federal Civil Rights Act of 1964, there is also a specific federal
law called the Equal Pay Act of 1963. This law makes it clear that women cannot
be paid differently from men if they are performing jobs under similar working
conditions and which require equal skill, effort and responsibility. Depending
on the circumstances of your case, one or more of these three laws which protect
against wage discrimination may apply to your situation.
Other Forms
of Employment Discrimination
The same legal rights that make it unlawful to discriminate against or to harass
people on the basis of sex also apply to people who experience discrimination
or harassment because of their sexual orientation. In 1992, Vermont extended
the protections of many anti-discrimination laws, including the Fair Employment
Practices Act to cover gays, lesbians and bisexuals.
In addition to
sex and sexual orientation, it is important to understand that the law prohibits
discrimination or harassment in hiring, pay, work conditions, promotions, discipline,
treatment on the job, etc., against any person because of:
• race (for example, African American, Asian American, Native American)
• color (any type of skin color)
• national origin (being from outside the U.S.)
• religion (an employer has to make reasonable accommodations for an employee’s
religious practices or beliefs)
• ancestry (family background or heritage)
• place of birth (where you were born, inside or outside the U.S.)
• age (18 years of age or older - can be because you are young or because
you are older)
• having a positive HIV-related blood test
• physical or mental disability (see following section on Disability)
• retaliation (see following section on Retaliation)
Discrimination
on any of these bases is unlawful and can be addressed through the same avenues
as sex discrimination.
Disability - Both
Vermont’s Fair Employment Practices Act (covering all employees in Vermont)
and Title I of the federal Americans With Disabilities Act (if you work for
an employer with 15 or more employees) recognize that people with physical or
mental disabilities face particular challenges in the workplace which require
not only equal treatment but additional safeguards.
It is against both
of these laws for a “qualified person with a disability” to be discriminated
against in employment. A “qualified person with a disability” is a
person with a disability who is capable of performing the essential functions
of the job with or without a reasonable accommodation made for the disability.
People are considered to have a disability if they have, are regarded as having,
or have a history of, a physical or mental impairment which substantially limits
their ability to do such things as walking, talking, seeing, hearing, speaking,
learning or working. The law requires employers to make reasonable accommodations
in the job which would enable a person to perform the job’s essential functions
or tasks, for example, provision of particular devices to assist in doing the
job, modifications to office space, job restructuring or modified work schedules.
An employee must affirmatively ask for the reasonable accommodation. An employer
might refuse to grant the request if it can show that the request is not reasonable
or if it would cause an undue hardship to the employer, e.g. excessive cost
or disruption. The Americans With Disabilities Act also prohibits employers
from asking job applicants if they have a disability or the specifics about
a disability, unless it relates to an employee or prospective employee’s
request for a reasonable accommodation. A “reasonable accommodation”
is any change or adjustment to a job or work environment that permits a qualified
applicant or employee with a disability to participate in the job application
process, to perform the essential functions of a job, or to enjoy benefits and
privileges of employment equal to those enjoyed by employees without disabilities.
For example, reasonable
accommodations may include:
• provision or modification of equipment or devices
• job restructuring
• part-time or modified work schedules
• reassignment to a vacant position
• adjustment or modification of examinations, training materials, or policies
• provision of readers and interpreters
• provision of readily accessible and usable workplaces for people with
disabilities
Retaliation
An employer is prohibited by both Vermont and federal employment discrimination
laws from taking any retaliatory action against an employee who complains of
discrimination or harassment to an employer or to a state or federal enforcement
agency. This protection also applies to employees who cooperate with, or provide
support to, an investigation into a claim of discrimination or harassment.
Worker’s
Compensation
It is also against the law in Vermont for an employer to fire or to discriminate
against an employee for filing a worker’s compensation claim. (Also see
later section on Worker’s Compensation.)
Addressing Discrimination
(See Resources chapters - Employment and Legal)
If you believe you have suffered discrimination, harassment or retaliation in
employment you have a number of options. (You do not need to choose only one.)
• follow your employer’s internal complaint procedures
• file a complaint with the Vermont Attorney General’s Office, Civil
Rights Unit
• file a complaint with the Vermont Human Rights Commission (only if you
are an employee of a state agency)
• file a complaint with the U.S. Equal Employment Opportunity Commission
(EEOC)
• file a complaint with the Office of Federal Contract Compliance (only
if you believe your employer receives some federal funding)
• file a complaint with the U.S. Dept. of Justice Office of Special Counsel
for Immigration-Related Unfair Employment Practices (if your complaint involves
national origin or citizenship discrimination)
• consult with a private attorney
On a state level,
potential remedies may include reinstatement to your job, back wages and benefits,
emotional distress damages, the reasonable cost of your attorney’s fees,
and particular requirements that must be met by your employer. If you bring
your case in federal court, the 1991 Civil Rights Act enables employees who
have suffered intentional discrimination or harassment to be awarded money damages.
But this federal law also places a limit on the amount of money that can be
awarded by a court. For example, an individual can only win up to $50,000 if
the employer has 100 or fewer employees, up to $100,000 if has 100 to 201 employees,
up to $200,000 if has between 200 and 501 employees, and up to $300,000 if has
more than 500 employees.
Parental
and Family Leave
Employees in Vermont have the legal right to take long-term and short-term
leaves from their jobs under Vermont’s Parental and Family Leave Act for
pregnancy, the birth or adoption of a child, the serious illness of yourself
or a family member, some school activities and some medical appointments. Since
this law applies only to certain types of employers and employees and is for
particular purposes, it is important to read the following descriptions.
Parental Leave
If you have worked for your current employer for an average of at least 30 hours
a week for twelve months and your employer employs at least 10 employees who
work a minimum average of 30 hours per week during a year, you are entitled
to take a parental leave. You can take a parental leave at any of the following
times: during your pregnancy, following the birth of your child, or within a
year after a child up to the age of 16 years has been placed in your home for
adoption.
Family Leave
If you have worked for your current employer for an average of at least 30 hours
a week for twelve months and your employer employs at least 15 employees who
work a minimum average of 30 hours per week during a year, you are entitled
to take a family leave. You can take a family leave for your own serious illness
or the serious illness of your child, stepchild, ward who lives with you, foster
child, parent, spouse or your spouse’s parent. A “serious illness”
is defined in the Vermont law as “an accident, disease or physical or mental
condition that poses imminent danger of death, requires inpatient care in a
hospital or requires continuing in-home care under the direction of a physician.”
Length and Conditions
of Parental or Family Leave
Parental or family leave can be taken for up to 12 weeks during any 12 month
period. You can take more than one leave during a 12 month period but you are
not entitled to take more than a total of 12 weeks unless your employer is willing
to give it to you. Vermont law only requires that your employer provide you
with an unpaid leave. However, if you have any unused leave time coming to you
at work (whether it is accrued vacation, sick leave, or other form of paid leave)
you have the right to use up to six weeks of that paid leave as part of your
parental or family leave. An amendment to Vermont’s Parental and Family
Leave Act, effective July 1, 1997, makes it clear that it is up to the employee
to choose whether or not to use any or all of the employee’s accumulated
paid leave.
It is important
that you give reasonable written notice to your employer that you want to take
a leave, including when you want the leave to start and when you plan to return
to work. If you are taking a leave due to serious illness, and your employer
requests it, you are required to produce a letter from a physician explaining
why you need to take a leave and for how long.
Your employer is
required to continue your employment benefits while you are on leave and under
the same conditions as if you had been working. However, your employer can require
you to pay the “employee’s contribution” to those benefits, which
is the amount that would normally come out of your paycheck. When you return
to work, you are entitled to the same or comparable job that you left.
If you work for
an employer who employs 50 or more employees, you might have some additional
rights under the federal Family and Medical Leave Act (FMLA).
Short-Term Family
Leave
Vermont law also allows an employee to take a number of short-term leaves each
year if they are related to certain school activities or medical appointments
of family members. An employee’s right to these “short term family
leaves” became available as of July 1, 1997. This law applies to employees
who have worked an average of at least 30 hours a week for a year for an employer
which employs 15 or more employees.
Short-term leaves
may be taken by an employee to participate in the academically-related preschool
or school activities of that person’s child, stepchild, foster child or
ward. These include such things as parent-teacher conferences. An employee may
also use a short-term leave to attend routine medical or dental appointments,
or to respond to medical emergencies, of their child, stepchild, foster child
or ward, and of their parent, spouse or parent-in-law. The law also allows an
employee to go with a parent, spouse or parent-in-law to other types of appointments
for professional services relating to their care and well-being. Examples might
include accompanying the family member to meetings with nursing homes or home
health care providers.
The law allows
an employee to take up to four hours of unpaid leave in any 30-day period as
long as not more than 24 hours are taken in any 12-month period. An employee
can choose to use any accrued paid vacation or personal leave rather than taking
the time off as unpaid leave. An employer can require an employee to take off
at least two hours for each requested leave, even if the employee believes the
activity or appointment will take less time.
If an employee wishes to take a short-term family leave, after trying to schedule
the appointment outside of regular working hours, she must tell her employer
as soon as possible. The notice to the employer cannot be less than seven days
before the leave is to be taken. This prior notice requirement does not apply
in emergencies, when being held to at least a seven-day notice would have a
very bad impact on the family member.
Addressing an
Employer’s Violation of the Parental and Family Leave Law
(See Resources chapters - Employment and Legal)
• file a complaint with the Vermont Attorney General’s Office, Civil
Rights Unit
• file a complaint with your county’s State’s Attorney
• file a complaint with the Vermont Human Rights Commission (only for employees
of state agencies)
• U.S. Department of Labor, Wage and Hour Division (under the federal FMLA,
if you work for an employer that has 50 or more employees)
• consult with a private attorney
Drug
Testing
Vermont law prohibits employers from requiring, or even asking, their employees
or prospective employees to submit to drug or alcohol testing, except under
specific circumstances. (There may be exceptions for some kinds of jobs which
are subject to federal regulations.)
If you are applying
for a job, employers can only require you to take a drug test if they have offered
you a job and then made it contingent on your having a negative drug test as
part of a comprehensive medical exam. Don’t worry if you are taking a prescription
drug or over-the-counter drugs for treatment of an illness or condition, since
these are not allowed to be included in the test results.
Employers in Vermont
are not allowed to do random or company-wide drug testing of their employees
unless it is required by a federal law or regulation. An employer can require
an employee to undergo a drug test if all of the following conditions are met:
• there is a very strong reason (“probable cause”) to believe
that the particular employee is using, or under the influence of drugs
• the employer has an employee assistance program for treatment of drug
or alcohol abuse, or make such treatment available through insurance coverage
• the employer does not terminate the employee for having a positive test
result if the employee agrees to attend, and successfully completes, a rehabilitation
program (although you can be suspended for up to three months in order to do
the program)
If the treatment
program is unsuccessful and you later test positive, you can be fired.
Minimum
Wage
The Federal Fair Labor Standards Act (FLSA), and the Vermont Minimum Wage Act,
set the minimum hourly wage rates for all “covered employees.” Covered
employees are all individuals employed or permitted to work by an employer except
the following: casual baby sitters and companions for the aged and infirm; executive,
administrative, and professional employees; outside sales people; employees
of certain small, local retail or service establishments; and some agricultural
workers.
Beginning October
1, 1997, the Vermont minimum hourly rate for all covered employees is $5.25.
Vermont law also requires this minimum hourly rate to automatically rise if
the federal minimum hourly rate is higher than the rate set by Vermont. (As
of this 1998 edition, the federal minimum wage was $5.15, a bit lower than Vermont’s.)
You should check with the Vermont Department of Labor and Industry to find out
if the state or federal rates have been changed by the time you consult this
guide.
Under certain conditions,
lower rates may be paid to learners, workers with disabilities, and students.
A learning wage of 85% of minimum wage may be paid for a total of 240 hours
only and the person must be 20 years old or younger. This does not include the
hotel, motel, tourist place, or restaurant industry. Only retail, wholesale,
and service establishments are covered.
Both federal and
state laws permit lodging, board or other facilities provided by an employer
to be considered as a part of wages. Also, tips actually received and retained
by an employee in the hotel, motel, tourist place and restaurant industry may
be counted for up to 45% of the minimum wage. The basic hourly wage for service
employees, chambermaids, hotel, motel and restaurant as of October 1, 1997 is
$2.89 an hour with a maximum tip credit allowance of $2.36. This matched the
State’s minimum wage rate of $5.25/hr. This tip credit may be claimed only
for workers who are engaged in an occupation in which they customarily and regularly
receive tips of more than $30.00 per month.
Overtime
Pay
Most covered workers are entitled to 1 1/2 times their regular rate of pay when
they work more than 40 hours per week. Your employer must pay you overtime wages
for any time over 40 hours in a work week and cannot require you to take compensatory
time or time off at a later time instead.
If your 40 hours
includes working on the weekend, this “weekend work” is not entitled
to overtime pay. Neither federal nor state law requires time-and-a-half pay
for weekends or holiday work or, generally, for daily overtime, if these are
part of your basic 40 hours. The law also doesn’t require meal breaks,
rest periods, discharge notices, or severance pay (pay given in place of notice).
But if vacation, sick, or severance pay has been offered to you, in writing,
by your Vermont employer, Vermont law will help you enforce these “wage
supplements.”
Addressing Violations
of Minimum Wage and Overtime Laws
(See Resources chapter - Employment)
• Consult with a private attorney
• Contact the Vermont Department of Labor and Industry
• Contact the U.S. Department of Labor, Wage and Hour Division
Unemployment
Compensation
You might be eligible to receive unemployment compensation benefits if you have
been laid off from your job or, under some circumstances, if you quit or were
fired. Whether you can receive unemployment compensation benefits will depend
on many factors. These can include why you were terminated, how long you worked
and how much you have been paid over a particular time period.
To find out if
you qualify for unemployment compensation benefits, you have to go to your local
office of the Vermont Department of Employment and Training. (See Resources
chapter - Employment.)
Workers’
Compensation
If you have suffered a work-related injury or an occupational disease, you might
be able to receive workers’ compensation benefits. If you think you might
be eligible, you must notify your employer who then has 72 hours to report the
injury to the Workers’ Compensation Division of the Vermont Department
of Labor and Industry. At the same time, your employer’s insurance adjuster
is notified, who then has 21 days to investigate and decide whether or not to
accept your claim. If your claim is denied, you have the right to contest it
by contacting the Workers’ Compensation Division of the Vermont Department
of Labor and Industry. (See Resources chapter - Employment.)
If you are injured
on the job, you may be entitled to:
• Payment of medical bills associated with that injury, including mileage
to and from the doctor.
• Temporary total or partial disability payments between the time of your
injury and the time you can either return to work or you have improved medically
as much as you are going to improve.
• Permanent partial or total disability benefits for any permanent injury
you have suffered.
• Vocational rehabilitation services to help you return to the work force.
• Reinstatement to the first suitable, available position when you are
able to return to work following your injury (as long as your recovery occurs
within two years of the injury and you work for an employer who has at least
10 employees).
Relevant Laws
Vermont:
Drug Testing law, 21 V.S.A. § 511, et seq.
Fair Employment Practices Act, 21 V.S.A. §495, et seq.
Minimum Wage and Hour Act, 21 V.S.A. §381, et seq.
Parental and Family Leave, 21 V.S.A. §470, et seq.
Sexual Harassment in the Workplace, 21 V.S.A. §495d(13), 495h
Unemployment Compensation Act, 21 V.S.A. §1302, et seq.
Workers’ Compensation Act, 21 V.S.A. §601, et seq.
Workers’ Compensation Act (discrimination), 21 V.S.A. §710
Federal:
Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §621,
et seq.
Americans With Disabilities Act of 1990 (ADA), Title I, 42 U.S.C.A. §12101,
et seq.
Civil Rights Act of 1991, Pub.L.102-166 (Amendments to Title VII)
Equal Pay Act of 1963, 29 U.S.C.A. §206(d)(1)
Fair Labor Standards Act, 29 U.S.C.A. §201, et seq.
Family and Medical Leave Act of 1993, 29 U.S.C.A. §2601, et seq.
Pregnancy Discrimination Act of 1978, 42 U.S.C.A. §2000e(k)
Rehabilitation Act of 1973, Section 501, 29 U.S.C.A. §791
Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C.A. §2000e
Governmental
Benefits
In Vermont,
you may be eligible for a variety of governmental benefits, regardless of your
marital status or whether you have children. The following provides a brief
overview of some of these programs.
Some of these programs underwent significant changes in the 1990’s and
are still experiencing revisions. Many have complicated eligibility requirements.
Therefore, it is strongly recommended that you refer to the Resource section
at the back of this book for the appropriate agency(ies) to contact for the
latest information.
Social
Security
Social Security benefits are available when you retire from work at age 65 (you
can begin collecting at age 62, but you will be locked into a reduced monthly
benefit). Other types of Social Security benefits are also available for people
if they are disabled and cannot be gainfully employed or to the dependents of
the major wage-earner in the family if that person becomes disabled, blind or
has died. These are referred to as Social Security disability benefits and Social
Security survivors’ benefits. Sometimes a divorced spouse, a student, or
a grandchild will also be eligible for benefits. Apply for Social Security through
the Social Security Administration. (See Resources chapter - Aging)
Supplementary Security Income (SSI)
SSI provides a limited monthly cash benefit for low-income individuals (including
children) who are disabled, blind or 65 years of age or older. If a person is
found eligible for SSI, there is automatic eligibility for Medicaid. People
who receive ANFC benefits should consider whether anyone in the household might
qualify for SSI, as well. In 1996 the federal “welfare reform” act
terminated SSI benefits for some children and some categories of immigrants.
Application for SSI must be made through the Social Security Administration.
(See Resources chapter - Aging)
Veterans’ Benefits
These are available to disabled, blind or older veterans and their children,
wives or husbands, widows or widowers. Benefits may be available even if the
disability is partial or is not connected to time in the service. Veteran’s
benefits can include cash benefits as well as health care coverage. Apply for
benefits at the Veteran’s Administration Center. (See Resources chapter
- Disability)
Aid
to Needy Families With Children (ANFC)
This program provides transitional financial assistance and “welfare to
work” services to low-income families with
children, as well as pregnant women. A person’s family may be eligible
if the person is a single parent, if one parent is disabled or if the total
income and assets of the family are low enough to entitle them to ANFC benefits.
In determining whether a family is eligible for ANFC, if the couple have a child
together, the income of both parents (whether married or unmarried) will be
factored in as well as the presence of other children who live in the household.
Individuals who are found eligible for ANFC are, in most cases, eligible for
Medicaid. Applications are made through the local Department of Social Welfare
offices. (See Resources chapter - State Agencies)
Be aware that even
though your family may not qualify for ANFC benefits, you or members of your
family may be eligible for Food Stamps, Medicaid, the Vermont Health Access
Plan, Dr. Dynasaur or other programs. (See later sections in this chapter.)
Both state and
federal changes have occurred to ANFC under the label “welfare reform.”
Vermont’s “demonstration project” began in 1994 and is still
continuing. After July 1, 1997, everyone who is found eligible for ANFC can
receive benefits under the following conditions:
• In a 2-parent household where 1 parent is unemployed or underemployed,
that parent must find work after receiving benefits for 15 months. (Benefits
might possibly continue, depending on how much is earned from employment.)
• Single parents and spouses of disabled parents must work after receiving
benefits for 30 months.
• if a single parent has a child under the age of 13 years, the parent
only needs to find half-time work after 30 months expire
• if a single parent has a child over the age of 13 years, the parent must
find full-time work after 30 months expire
Parents who are
unable to find work are placed in a subsidized community service employment
(CSE) job. Exceptions to these work requirements exist under the Vermont welfare
plan in various types of situations, including your disability or your child’s.
If you haven’t
lived in Vermont continuously for a year before you apply for ANFC benefits,
you must find a job after five months, according to a budgetary provision enacted
by the Vermont legislature in 1997.
In 1996, the U.S. Congress also passed a “welfare reform” act. Since
those new requirements only affect those portions of a welfare grant that is
funded by the federal government, it is possible for states to have different
programs as long as they are paid by state funds. As of 1997, it was still unclear
when and how the new federal law will apply in Vermont.
Reach Up
Vermont also offers a program called Reach Up which helps parents on ANFC work
toward self-sufficiency through education, training, and support services to
prepare them to enter the job market. Participation in Reach Up is mandatory
for ANFC parents who are the primary earners in a two-parent household and for
minor parents. For single parents with a time limit of 30 months, Reach Up is
mandatory as the end of the time limit approaches. It is also important to know
that there are penalties if you do not adequately participate in Reach Up if
you are required to do so.
Benefits for
Minor Parents
In 1994, Vermont instituted restrictions for women under the age of 18, who
are otherwise eligible to receive ANFC benefits due to pregnancy or having given
birth. Women who are minors may only be eligible to receive ANFC if they can
show that they live in supervised settings. (Some exceptions to this may apply.)
Approved supervised settings could include your parents (whose income is not
included in determining ANFC eligibility), a responsible older relative or friend,
the father of your child or another home.
Apply for ANFC
benefits through the local Department of Social Welfare offices. (See Resources
chapter - State Agencies)
Food
Stamps
The food stamp program helps many low-income people buy food. If a person receives
ANFC, that person is eligible, in most cases, to receive food stamps. Some people
who are working but whose assets and income are low may also be eligible. Elderly
people and people who receive SSI get cash benefits instead of food stamps.
By the end of 1998,
it is expected that Vermont will change from using actual food stamp paper vouchers
to an “electronic benefits” transfer system (EBT). This will provide
a food stamps “credit card” for most people to use when they shop
for food. Under the 1996 federal “welfare reform” laws, limits have
been placed on how long able-bodied people without minor children can receive
food stamps. These changes apply to Vermont, as well. Able-bodied people who
are eligible to receive food stamps, who are 18 to 50 years old and who do not
have minor children can receive food stamps for only 3 months in any 3 year
time period unless they are working or doing “work-related activities.”
If a person participates in Vermont’s “work for benefits” program
3 days a month, that person could remain eligible for food stamps. Apply for
food stamps at your local Vermont Department of Social Welfare office. (See
Resources chapter - State Agencies)
WIC
This is a special supplemental food program for women, infants and children.
It provides food though home delivery, nutrition and health education, and information
about health services. If a woman is a Vermont resident, is pregnant or breastfeeding,
had a baby in the last 6 months, or has a child under 5 years old, she may be
eligible for benefits. Although income guidelines apply, she can work and still
be eligible for WIC. Apply for WIC through the Vermont Department of Health.
(See Resources chapter - State Agencies)
Child
Care Subsidies
Some people can receive financial assistance or subsidies for child care. The
available governmental programs include:
• Parent Fee Scale Program
This program provides financial assistance for employed parents and parents
enrolled in approved training programs through a sliding fee scale which relates
to family size and gross income.
• Self-Employment Child Care
This subsidy is offered to parents who are starting or who have started a business
within
the last year.
• Seeking Employment Child Care
This program provides a subsidy for child care in order to allow parents to
obtain
employment, retain employment, or to obtain training leading to employment.
• Reach Up Child Care
Parents who receive ANFC and are engaged in an approved Reach Up program plan
receive financial assistance for child care necessary to carry out their Reach
Up
activities.
• Incapacity Child Care
This subsidy is available to parents determined to be physically or emotionally
unable to
care for their children on a full-time basis.
Apply for these benefits and subsidies through your community child care support
agencies. (See Resources chapter - Child Care)
Essential
Person (AABD/EP)
This Vermont program provides financial assistance to people who have very low
incomes and qualify as aged, blind or disabled, and who have an “essential
person” living in their household. The “essential person” has
to meet all of the following: live in the household; not be eligible for SSI/AABD
or ANFC on their own; and not receive payment from the Department of Aging and
Disabilities for providing personal services to the applicant. The essential
person can be any of the following: 1) the spouse of the applicant and be 55
years of age or older; 2) the spouse of the applicant and is under the age of
55 (other additional criteria will have to then be met); or 3) not a spouse
but provides at least one personal care service or homemaker service as defined
by the Department of Social Welfare regulations. You should be aware that this
program is also available to help your family when your spouse is waiting to
receive Social Security or SSI benefits. Apply for “essential person”
benefits through your local Department of Social Welfare office. (See Resources
chapter - State Agencies)
General
Assistance (GA)
This state program may provide a minimal amount towards basic necessities and
emergency needs for temporarily disabled adults, families and able-bodied adults
who face barriers in finding work and are ineligible for other aid programs.
Unless there is a crisis (such as death of a spouse or a child, fire, flood,
hurricane, eviction, or emergency medical need) a person cannot receive GA unless
that person’s household income is no greater than what an ANFC family of
the same size receives. A person may be eligible for GA while waiting for a
first ANFC or SSI check. Apply for benefits through your local Department of
Social Welfare office. (See Resources chapter - State Agencies)
Emergency
Assistance (EA)
This state program is similar to GA (above), except that it is available for
families with minor children. Apply for benefits through your local Vermont
Department of Social Welfare office. (See Resources chapter - State Agencies)
Emergency Housing - The emergency housing program provides 28 days of temporary
housing for low-income families with children who have exhausted all other housing
options, including shelters, if the lack of housing is not considered to have
been your fault. (Being evicted for non-payment of rent is NOT considered to
be your fault if you simply did not have the money.)
Fuel
Assistance
Seasonal Fuel Assistance provides benefits to low-income Vermonters for the
purchase of home heating fuel (oil, propane, wood, electricity, etc.). The benefits
are paid directly to the fuel supplier. You must apply by August 31st for a
full winter’s benefit, or November 30th for a reduced benefit. Applications
are available at local Department of Social Welfare offices, Community Action
agencies, Area
Agencies on Aging,
or by phoning the Office of Home Heating Fuel Assistance 1-800-479-6151. (See
Resources chapters - State Agencies & Aging)
Crisis Fuel Assistance
for home heating emergencies is available from the last Monday in November through
April 15 or April 30, depending on the type of fuel you use. Assistance may
include minimum delivery of fuel, partial payment of a utility bill to prevent
service disconnection, furnace repairs or replacements. Apply for assistance
through Community Action agencies or, if you need assistance after hours, on
weekend and holidays, through the Department of Social Welfare’s statewide
emergency hotline 1-800-287-0589. (See Resources chapters - State Agencies &
Aging)
Medicaid
This government benefits program covers many medical expenses for low-income
Vermonters. A person almost always qualifies for Medicaid if that person receives
ANFC or SSI benefits. Many other low income people are eligible for Medicaid,
including those aged, blind, disabled and under 21 years of age. Low-income
families with high medical expenses, and single parents may also be eligible
if their resources fall below a certain level. Special income eligibility rules
also make it easier for pregnant women to qualify. As of this 1998 edition,
most people on Medicaid will receive their health care services through a managed
care plan. Apply for benefits through your local Vermont Department of Social
Welfare office or call 1-800-250-8427 for an application. (See Resources chapter
- State Agencies)
Vermont
Health Access Plan (VHAP)
Established by the legislature in 1995, VHAP is a medical assistance program
for low-income Vermonters who have been Vermont residents for 12 months. This
program is for people not usually covered by traditional Medicaid. Some of the
benefits are free and others may require some co-payment fees. The VHAP programs
are described below.
1. A program for uninsured adults with health care services provided through
a managed care plan. (Although for a short period of time, you will be placed
in a “fee for service” program, VHAP-Limited, before being moved into
VHAP-Managed Care). A person must meet the income limits and have been uninsured
for a year or have lost their health insurance due to loss of employment or
similar reasons.
2. Pharmacy benefits for low-income or disabled Vermonters and people who receive
Medicare. This program helps people pay for the prescription drugs they need.
Depending on your income, you may get VHAP Pharmacy or VScript benefits.
3. VHAP-Managed Care covers doctors’ visits, hospital stays, medical supplies
and equipment, eye care, limited dental care for adults and unlimited dental
care for children, and chiropractic care. People who are eligible for Medicaid
will start in the VHAP-Limited (“fee-for-service”) program with limited
benefits and then be moved into the full VHAP-Managed Care plan. Within six
weeks of starting VHAP-Limited, you will receive information in the mail that
will help you choose a plan and a primary care provider.
Apply for benefits by calling 1-800-250-8427 for an application. (See Resources
chapter - State Agencies)
Medicare
This government program helps pay medical bills for people over 65 years of
age or people who have received Social Security Disability Income for at least
two years. Apply for Medicare through the Social Security Administration. (See
Resources chapter - Aging) Supplemental Medicare policies (“medigap”
and Medicare managed care) are also available from private insurance companies
to pay for medical expenses not covered by Medicare. You can receive information
about such companies from the Vermont Department of Banking, Insurance, Securities
and Health Care Administration. (See Resources chapter - State Agencies)
Dr.
Dynasaur
This Vermont Medicaid program pays for the cost of medical care for pregnant
women and for many low and moderate income children under the age of 18 whose
family income falls within the Dr. Dynasaur income limits. Many children qualify
for these benefits even though their families are not eligible for any other
governmental benefit programs. You can be eligible for Dr. Dynasaur even though
you have private insurance. Apply for these benefits through your local Department
of Social Welfare office. Applications may also be available at your doctor’s
office, the local Department of Health offices or by calling 1-800-250-8427.
(See Resources chapter - State Agencies)
AIDS
Assistance
(See Resources chapter - HIV/AIDS)
Since 1992, Vermont has had an HIV/AIDS Insurance Assistance Program. If you
lose your job because of a health condition related to your HIV or AIDS status,
you may be eligible to have your COBRA payments made by the state. COBRA enables
you to continue the health insurance policy you had under your last employer
for about eighteen months after you leave your job.
Vermont also has
an AIDS Medication Assistance Program which is administered by the AIDS Bureau
at the Vermont Department of Health. If you are HIV-positive and need AIDS-related
medication, you may be eligible to have the costs of this medication paid for,
depending on your income and other factors of eligibility.
Lifeline
This Vermont program entitles low-income people to a reduction in their monthly
telephone bills. Women of limited income who are 65 years of age or older and
women who receive other forms of governmental benefits such as ANFC, food stamps,
fuel assistance, Medicaid, SSI, or AABD/EP, can consider applying for this form
of assistance.
Denials,
Reductions or Terminations of Governmental Benefits
If you are denied governmental benefits, or have been notified that your benefits
are going to be reduced or terminated, you usually have the right to appeal
that decision. Make sure you ask the agency administering the particular program
about your rights.
If it is a state-administered
program, you will probably have your case heard at a fair hearing by a Hearing
Officer from the Human Services Board. Appeals from fair hearings go to the
Human Services Board and then to the Vermont Supreme Court. If it is a federally-administered
program, you may have the case heard at an administrative hearing in front of
an Administrative Law Judge (ALJ). Appeals from a decision by an ALJ are taken
to federal court.
File appeals from
Social Security decisions through your local Social Security office. (See Resources
chapter - Aging)
Relevant Law
Vermont:
Social Welfare, 33 V.S.A. §101, et seq.
VT Dept. of Social Welfare Regulations
Federal:
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“welfare
reform”), Pub.L.104-193
Housing
and Property Rights
Whether
you rent or own property, are single or married, straight or gay, you have certain
rights under Vermont and federal laws. Many of these are described in this chapter.
Tenants’ Rights
Vermont law establishes many of the rights and responsibilities of landlords
and tenants. Some of them are described in the following sections, but a more
complete look at these rights can be found in the Renting in Vermont handbook
published by Vermont Tenants Inc. (See Resources chapter - Housing)
Housing Conditions
Vermont tenants have the right to safe and decent housing, otherwise known as
an “implied warranty of habitability.” This means that a landlord
must provide and maintain apartments for rent that are clean, safe and fit to
live in, and which comply with relevant housing codes.
The Vermont Rental Housing Health Code requires that all rental housing meet
certain minimum standards for water supply, sewage, lighting, heating, structural
features, etc. In addition to the state-wide standards, some municipalities
have their own, even stronger, local codes. If you believe your rented house,
apartment or mobile home does not meet the health code, you have to notify your
landlord, in writing, of any problem. You can also ask that an inspection of
your home be conducted by the Health Officer or Housing Inspector of your town
to verify the problem. Your landlord can be ordered to repair violations of
the Rental Housing Health Code. If the landlord does not make necessary major
repairs within a reasonable amount of time, you can possibly:
• withhold your rent (keep this money in a separate bank account)
• terminate your rental agreement (after reasonable notice to your landlord)
• hire a private lawyer to bring a lawsuit against your landlord and to
possibly get an order from the judge to force the landlord to make the repairs
Regulations of the Fire Prevention Division of the Vermont Department of Labor
and Industry require landlords to provide smoke detectors in the vicinity of
all sleeping areas and basements. A fire extinguisher is also required.
Complaints about these can be made to the Fire Prevention Division of the Department
of Labor and Industry. (See Resources chapter - Housing)
Security Deposits
Under Vermont law, landlords are required to refund your security deposit to
you within 14 days after you move out, along with an itemized list of any deductions.
Deductions can be taken for damages beyond normal wear and tear, unpaid rent
or utility bills, or to cover the expense of removing any belongings left behind.
Deductions cannot be made for the costs of routine maintenance, painting due
to damage, readvertising due to premature termination of the lease or upgrading
the rental. If the landlord does not return your security deposit and itemized
statement within 14 days, you are entitled to the full amount of the deposit
without any deductions. If the landlord willfully refuses to return your security
deposit you may be entitled to collect double damages from the landlord.
If your landlord
does not return your security deposit or if you disagree with any of the deductions,
you can bring your own case in Small Claims Court.
If you live in
Burlington or Barre City, your town ordinances limit the amount a landlord can
charge for a security deposit to the equivalent of one month’s rent. After
you move out, you are entitled to a return of your security deposit plus interest.
If a landlord in Burlington or Barre City fails to return your security deposit
(plus interest) or if you wish to contest any deductions, you can go to the
Housing Board of Review. (See Resources chapter - Housing)
Rent Increases
- Tenants must be given written notice of any rent increase at least 60 days
before the first day of the rental period when the increase is to begin. There
is no law which limits how much a landlord can raise your rent, unless you live
in subsidized housing or in a mobile home park.
Privacy and Access
- Vermont’s landlord/tenant law makes it clear when a landlord has, and
doesn’t have, the right to enter your apartment. Obviously, a landlord
can enter with your permission to do so at a mutually agreed upon time. A landlord
can only enter without your permission between the hours of 9:00 am and 9:00
pm, if the landlord has given you at least 48 hours notice, and only for the
following reasons:
• to inspect the premises
• to do repairs, alterations or improvements
• to provide agreed upon services
• to show the apartment
A landlord does
not have to give you any advance notice if there is a reasonable belief of a
real emergency, such as an “imminent danger to any person or property.”
If your landlord
is not following this law, you can possibly bring a lawsuit against the landlord.
You might also be able to get the local police to cite the landlord for unlawful
trespass and to force the landlord to leave.
Evictions
Although tenants in Vermont can be evicted without the landlord giving any reason
(except in subsidized housing and mobile home parks), and at any time of the
year, the landlord must go through a specific legal process before you can be
forced out of your rental unit. Before taking you to court for eviction, the
landlord must give you written notice of the intention to evict you. The length
of notice depends on the reason for the eviction, such as:
• If you are being evicted for non-payment of rent, the landlord must give
you written notice by certified mail or personal delivery by a law enforcement
officer, at least 14 days before the termination date. This date must be at
least a full rental period after the last rent was due. For example, if your
rent was due on June 1st and was unpaid, the landlord cannot give you a termination
date sooner than July 1st, and you have to be given the notice at least 14 days
before July 1st. If the back-due rent is paid by the termination date, you have
the right to continue your tenancy, but you can only take advantage of this
three times in a twelve month period.
• If you have violated your written lease or the landlord/tenant law, the
landlord has to give you a written 30 day notice to leave, which must include
a statement of the alleged violations.
• If the landlord is evicting you without stating a reason, the landlord
has to give you at least a 60 day written notice if you rent by the month or
a 21 day written notice if you rent by the week. If you have a written lease,
you cannot be evicted before the lease has expired unless your lease provides
otherwise (but in no case less than 14 days for non-payment of rent, 30 days
for a no-cause eviction if the rent is paid monthly or 7 days if the rent is
payable weekly).
• If you rent from month to month (instead of having something like a six
or twelve month lease) your current landlord must give you written notice at
least 30 days before the date the landlord wants you out, if the landlord is
selling the building. (The new owner/landlord would have to give you the regular
60 day written notice.)
If notice has been given properly, the landlord still must get an order from
the court before you can be forced out of your apartment. The landlord has to
serve you with a “Complaint” (usually by a sheriff). You then have
to file a written “Answer” (delivered to the court) within the amount
of time which is stated on the “Summons” that comes with the Complaint.
The court may then hold a hearing in court to determine whether your landlord
has the right to evict you. If the landlord receives a “Writ of Possession”
from the court, you will be required to move out if the Writ of Possession has
been served on you.
Addressing housing,
health and safety problems
(See Resources chapters - Housing & Legal)
• give your landlord written notice of the problem
• contact the Health Officer for your town
• contact the Vermont Department of Health
• consult with a private attorney or Vermont Legal Aid
Lead
Paint
If you rent an apartment or house built before 1978, your landlord is required
by Vermont law to take certain steps to reduce the hazard of lead paint poisoning.
These “Essential Maintenance Practices” include:
• Cleaning all window wells and sills to which a tenant has access. This
must be done whenever tenants move out and on an annual basis in units where
there is a child who is six years old or younger living in the unit.
• Installing window well inserts or protect window wells by some other
method approved by the Department of Health, no later than July 1, 1998.
• Posting a written request that tenants inform the landlord of deteriorating
paint.
• Inspecting for deteriorating paint on an annual basis and also when there
is a change of tenant.
• Promptly and safely removing or stabilizing deteriorated lead-based paint
if there is more than one square foot of it on any surface inside the building
or on any exterior porches. If more than one square foot of deteriorated lead-based
paint is found on an exterior wall or fixture, and it is located in an area
where children six years of age or younger may be in warm weather, the paint
has to be quickly and safely repaired and stabilized or children of that age
must be prohibited from going near that area.
• Providing information, approved by the state, to current and prospective
tenants about the hazards of lead paint poisoning.
• Attending a lead poisoning hazard training sponsored or approved by the
Department of Health in order to learn about their legal responsibilities and
how to do repairs safely.
The essential maintenance
work must be done by a person who has completed a training program approved
by the Department of Health.
Landlords may not
refuse to rent to families with minor children as a way to try to avoid their
obligations under the state and federal lead paint laws, since this may be in
violation of Vermont’s Fair Housing and Public Accommodations Act and the
federal Fair Housing Act.
Housing
Discrimination
It is against the “fair housing” provisions in Vermont’s Fair
Housing and Public Accommodations Act to be discriminated against in buying
or renting any residential property, on the basis of a person’s race, color,
religion, national origin, age, sex, sexual orientation, marital status, disability
or perceived disability, having minor children or because you receive public
assistance. You also have protection against housing discrimination in most
of these categories under the federal Fair Housing Act, as it was amended in
1988 and 1996.
Housing discrimination
can take many forms. Some examples to which people might be subjected include:
• refusing to rent to a person because there are minor children in the
family
• refusing to rent to a couple because they are bi-racial or because they
are unmarried
• sexually harassing a tenant by offering free rent in exchange for sexual
favors
• telling a person who receives public assistance that the apartment has
already been rented, even though it is still available
• discouraging a lesbian couple from living in a particular building or
neighborhood
• refusing to allow a person who uses a wheelchair the right to build a
ramp up to the door
• placing an advertisement in a newspaper stating “mature couples
preferred” or “no children”
• refusing to grant a mortgage or homeowner’s insurance to people
because they are single
The law against
housing discrimination does not apply to buildings that have two or three apartments
if the owner, or a member of the owner’s immediate family, lives in one
of those apartments. It is also legally permissible to discriminate against
families with minor children if the property for rent or sale is in housing
for the elderly which meets certain legal requirements.
Even though you
might be someone in one of the protected categories listed above, a landlord
is still allowed to use legitimate business practices which are necessary to
protect and manage the property, such as checking references.
A landlord can also enforce a town ordinance regarding the number of people
allowed to live in a particular house or apartment. Any unreasonable occupancy
standards set by a property owner or manager will probably not be enforceable.
There are also special provisions in the law for people with disabilities. For
example, a landlord cannot refuse to rent to a person with a disability just
because the person has a personal attendant, a specially trained animal, a wheelchair
or other device. A landlord also has to allow a person with a disability to
make reasonable modifications to the unit, at the tenant or prospective tenant’s
own expense.
Landlords are required
to make reasonable changes to their rules, policies, practices or services if
the accommodation is necessary to enable a person with a disability the equal
opportunity to use and enjoy the apartment or house. For example, if a person
has a seeing eye dog because of blindness or a companion pet because of the
psychiatric disability of the person, a landlord would be required to make an
exception to the “no pet” policy. If a laundry room is provided for
all tenants in the building, but a tenant in a wheelchair cannot get into the
room, the landlord would have to make the room accessible or make some other
reasonable arrangement.
(Many specific
requirements are included in the state and federal fair housing laws regarding
the architectural accessibility of certain types of housing known as “covered
multifamily dwellings.” They are too detailed to go into in this publication,
but see Resources chapters - Housing & Disabilities.)
Residents and prospective
residents of mobile home parks are also protected under these state and federal
fair housing laws. This has been true since 1989 (under Vermont law) and 1991
(under federal law). Since then, mobile home parks cannot have separate sections
of the park for “adults only” and “families with minor children”
since this would amount to unlawful segregation. In addition, mobile home parks
which used to be “adult only” are now unlawful unless they can qualify
as housing for the elderly. This narrow exemption for housing for the elderly
only applies under limited circumstances.
Addressing Housing
Discrimination
(See Resources chapters - Housing & Legal)
• file a complaint with the Vermont Human Rights Commission
• file a complaint with the U.S. Dept. of Housing and Urban Development
(HUD)
• consult with a private attorney or Vermont Legal Aid
Mobile
Home Park Residents’ Rights
If you are a resident of a mobile home park (whether you own or rent your mobile
home) you have specific rights under Vermont’s Mobile Home Park Act. For
example:
• all residents must have written leases with reasonable and fair lease
terms
• park owners do not have the right to enter your mobile home without your
permission unless it is between the hours of 7 a.m. and 7 p.m. and they give
you at least 12 hours notice or there is a very serious emergency
• lot rent and utility charges have to be in effect for a year, with a
few exceptions
• if you move out, your security deposit must be returned within 14 days
(same process as in regular landlord/tenant law - see above)
• residents must be given 60 days notice before any rent increase can take
effect
— a majority of the residents may be able to dispute a rent increase of
more than 10% by filing a petition with the Commissioner of the Vermont Department
of Housing and Community Affairs - the case is then scheduled for mediation
(See Resources chapter - Legal)
— residents can also challenge the rent increase by bringing a lawsuit
in Superior Court
• if the park owner wishes to sell the park, the option to buy the park
must first be given to the residents
• residents can only be evicted for one of three particular reasons
— non-payment of rent
— a substantial violation of the terms of the lease
— if there is a change in the use of the park land or a termination of
the park
• residents cannot be retaliated against for trying to enforce housing
or health violations in the park or because the resident is a member of a residents’
association
• all leases in the same mobile home park must have the same terms and
be uniformly enforced, unless the park owner has a good reason to create separate
categories of tenants
In 1994, the Vermont
legislature amended the Mobile Home Park Act to include some of the same protections
that exist for other tenants, i.e. that the park owner must provide a park that
is safe, clean and fit for human habitation (“warranty of habitability”)
and that the owner must provide adequate and reliable utility services, including
hookups to safe electrical service, drinkable water and sewage disposal. The
amendments also make it clear that illegal evictions, interruption of utility
service or prevention of resident access to the resident’s home are unlawful
unless the park owner has gone through the proper legal channels.
Marital
Property Rights
A married woman may own real estate as well as personal property in her own
name. Neither the husband nor the wife automatically gains any ownership rights
in the
other’s property when they marry. Any property that either spouse owned
before the marriage remains the property of that spouse alone, and it cannot
be attached to pay the other spouse’s debts. A salary is also the sole
property of the spouse who earns it. Neither spouse is responsible for the debts
incurred by the other before marriage.
A major exception
to the rights of sole ownership occur during a divorce. All property is considered
part of the marital estate and can be subject to distribution by the court,
regardless of whether it was jointly purchased by the couple during the marriage
or was solely owned by one person before or during the marriage. (See chapter
on Domestic Relations).
Women should realize,
though, that even if a woman owns property by herself her husband can incur
a debt for the upkeep or improvement of that property. In other words, if the
husband decides on his own that a house belonging to his wife needs aluminum
siding and has the work done, it is the wife’s property that bears the
debt, not his. The wife’s property may also be subject to the debts the
husband incurs for her necessities or for the necessities of the family.
In addition, if
a wife and husband own property jointly in the legal form known as “tenancy
by the entirety”, the husband has the right to purchase goods and services
for the upkeep of the property as if the property was owned by him. He does
not need to have his wife’s consent. He does, however, have to have her
consent for any signature on any mortgage or document which conveys (gives away)
an interest in their homestead.
A married woman
can make contracts with anyone she chooses and may make limited partnership
contracts with her husband, just as if she were unmarried, and these contracts
are fully enforceable. There is one exception: the law specifically prevents
a married woman from enforcing a contract with her husband for her services
as a homemaker. However, even though the courts will not enforce marital contracts
for personal services, nothing prohibits a couple from making such contracts
as guidelines for themselves.
Unless otherwise
noted, all purchases made by a wife or husband in her or his own name are legally
presumed to be the responsibility of the person who made the purchase. A spouse
is not responsible for debts incurred by the other spouse.
Many people in Vermont, including merchants, doctors and other professionals,
are under the mistaken impression that a husband is responsible for all of his
wife’s “necessities” (food, clothing, shelter, medical care,
etc.). This is not true. Where a married woman has an independent income and
contracts for goods or services in her own name, she is responsible for the
debt, not her husband.
Property
Rights of Unmarried Same-Sex and Opposite-Sex Couples
Unmarried same-sex and opposite-sex couples can own property together, and be
named on the same deed, either as:
• “tenants in common”
— this means that if one partner dies, that partner’s interest in
the property passes to her/his nearest blood relative, or as instructed in that
partner’s will
• “joint tenants with rights of survivorship”
— this means that if one partner dies, that partner’s interest in
the property passes to the other partner, i.e. the surviving partner has full
ownership rights to the entire property
If you own property on your own and wish to add your partner to the deed, this
can be relatively easily accomplished by executing a quit-claim deed. It is
also possible that if you do not wish to add your partner to the deed, but want
to give your partner an ownership interest in the property, you could do this
by entering into a contract. (For either of these property transactions, you
should consult with an attorney to find out if you should file them with the
land records in the town in which the property is located, pay a property transfer
tax and/or whether you have any gift tax obligations.)
Even if your partner
is not named on the deed, and even if you don’t have a contract regarding
the ownership of the property, you could ensure that the property would pass
to your partner upon your death by specifically including your wish in a written
will. (See chapter on Wills.)
Neither partner
in an unmarried same-sex or opposite-sex couple is responsible for the personal
debts of the other unless they are entered into together, as in a joint credit
card, or if there is a valid and enforceable contract between the partners which
provides for such support.
Relevant Laws
Vermont:
Accessibility Standards for Public Buildings & Parking, 21 V.S.A. §271,
et seq.
Fair Housing and Public Accommodations Act, 9 V.S.A. §4503, et seq.
Landlord Tenant law (evictions), 12 V.S.A. Chapter 169
Landlord Tenant law (Residential Rental Agreements Act), 9 V.S.A. Chapter 137
Lead Paint Law, 18 V.S.A. §1751, et seq.
Married Women’s Property Act, 15 V.S.A. §61, et seq.
Mobile Home Park Act, 10 V.S.A. §6201, et seq.
Federal:
Fair Housing Act (Title VIII), 42 U.S.C.A. §3601, et seq.
Fair Housing Amendments Act of 1988, Pub.L.100-430
Insurance
The availability
of insurance and what the law requires it to cover are confusing areas for many
people. This chapter will explain the rights of Vermonters as they pertain to
general insurance law in Vermont, health insurance, life insurance, disability
insurance and credit insurance.
General
Insurance Law
Vermont law prohibits the insurance industry from unfairly discriminating on
the basis of sex or marital status in the areas of “underwriting”
and “rating.” The law protects people from discrimination by agents,
brokers and insurance companies. Unfortunately, women are sometimes subjected
to such discrimination.
“Underwriting”
is the way in which an insurance company decides whether or not it will insure
a particular person, group of persons, business, home, etc. The law prohibits
companies from offering a different rating period (described below), deductibles,
or other terms of insurance to women or non-married persons than it does to
men or married persons in the same situations. Some examples include:
• A company cannot offer a man up to $5,000,000 of life insurance and only
offer a woman up to $100,000;
• An application containing medical history questions cannot have a section
labeled “females only”; and
• A company cannot require a woman to buy a family policy in order to obtain
maternity coverage for herself.
“Rating” is the way in which a company decides what rates to charge.
Laws which prohibit unfair insurance discrimination on the basis of sex still
permit companies to charge different rates for women and men. A growing number
of critics oppose this, based on the fact that there are better indicators of
an insurance risk than gender. For example, the amount of driving experience,
miles driven, and accident record may be better indicators for automobile insurance;
and smoking, exercise habits, and occupational stress may be better indicators
for life and health insurance. Supporters of fair insurance practices also suggest
that the time has come to eliminate gender-based insurance rating as a matter
of public policy.
Health
Insurance
The laws with regard to health insurance are in a continuing state of change
while trying to keep pace with the ongoing changes in both the traditional health
insurance and managed health care systems. In Vermont, the Department of Banking,
Insurance and Securities was expanded in 1996 to also include Health Care Administration.
Pregnancy-Related
Conditions
Federal and state laws require health insurance policies to treat pregnancy
and pregnancy-related conditions the same as an illness or disease. In addition,
under the federal Health Insurance Portability and Accountability Act of 1996
(“HIPAA”), if a woman is pregnant at the time she obtains a health
insurance policy, the health insurance provider cannot exclude coverage for
it as a pre-existing condition.
Maternity coverage
must be provided on health insurance policies written in Vermont. (There is
a limited exception to this rule for policies written out of state when a company
insures 25 or fewer people in Vermont.)
Group health insurance
companies in Vermont must allow any person whose coverage ends due to the death
of a spouse or the spouse’s loss of a job, to continue health insurance
for six months. The person also has the right to convert to an individual policy
with that company without having to give evidence of insurability.
(Also see chapter on Reproductive Rights.)
Coverage of
Newborns
Vermont law requires that all newborns must be covered for the first 31 days
after birth, under any health insurance policy, whether it is a policy for a
single person or a family. This is true even if you have not informed the insurance
company of the anticipated birth of your child. The coverage must include well
baby care, injury, sickness and necessary care and treatment of medically diagnosed
congenital defects and birth abnormalities.
The insurance company
cannot require you to pay an additional premium for the first 31 days after
birth. The company can require an additional premium for coverage beyond the
first 31 days. Coverage may terminate after the 31 days have passed if the additional
premium is not paid, but the termination cannot be retroactive back to birth.
Maternity Stays
(Hospital Stays - Postpartum)
Federal law requires health care insurance providers to cover specific minimum
maternity stays. These requirements ensure that providers will cover a woman’s
stay in a hospital after giving birth for at least 48 hours after a vaginal
delivery and at least 96 hours following a cesarean delivery.
In 1997, the Vermont
Department of Banking, Insurance, Securities and Health Care Administration
issued a “Maternity Stays Guideline” (Insurance Bulletin #114), as
a guide for health care insurance providers. These guidelines provide sets of
criteria for evaluating appropriate hospital stays for mothers and newborns
based on their individual needs. The Division of Health Care Administration
expects insurance providers to follow these guidelines.
Mammograms
Since January 1, 1992, Vermont law requires that insurers provide coverage for
low-dose mammography screening for breast cancer. The coverage includes both
the x-rays and the interpretation of the x-rays by a radiologist. The amount
of coverage depends on the individual’s policy. Individual policies may
require that a deductible be met before a procedure is paid for. Policies may
also require the individual to pay for a percentage of the bill. An annual screening
is covered for women 50 years and older. For women under 50, coverage is available
whenever a health care provider recommends it. For example, if a woman has a
family history of breast cancer, she may be at a higher risk than other women.
Her health care provider may therefore recommend a mammogram screening for her,
regardless of her age.
Direct Access
to Ob/Gyn Care
If a woman in Vermont has health insurance through a “managed care”
company, she is entitled to go directly to her obstetrician or gynecologist
without having a referral from her primary care doctor (or “gatekeeper”),
on a limited basis. This “direct access” right is restricted to two
visits per year, plus all follow-up visits relating to the same condition. Direct
access to ob/gyn care was adopted in 1997 through rules written by the Vermont
Department of Banking, Insurance, Securities and Health Care Administration.
These only apply to “managed care” health insurance providers.
Diabetes
In 1997, Vermont passed a law which requires all health insurers to cover the
equipment, supplies and outpatient self-management training and education (including
medical nutrition therapy) for the treatment of diabetes. Coverage may be limited
by existing requirements in the policy regarding deductibles and coinsurance.
This law applies to all new policies issued or offered after October 1, 1997,
and to the renewals of all other policies no later than September 30, 1998 (or
on their anniversary date, whichever is sooner).
This includes insulin
dependent diabetes, insulin using diabetes, gestational diabetes and noninsulin
using diabetes. The treatment must be prescribed by a health care professional
who is legally authorized to prescribe such items under Vermont law. The health
insurer is allowed to require that the prescriptions be made, and the care be
given, by a health care professional who is under contract with the insurer.
Mental Health
and Substance Abuse Disorders
As of January 1, 1998, all health insurers in Vermont must provide coverage
in their health insurance plans for the treatment of mental health conditions.
Under this new “Mental Health Parity” law, health insurance plans
cannot set separate deductibles or out-of-pocket limits for mental health conditions
and physical health conditions - they must have a single, combined deductible.
In addition, the health insurance plan cannot put a greater financial burden
on a person for access to treatment for a mental health condition than for a
physical health condition. For example, if there are no limitations on the number
of visits you can make to the doctor, or the total amount of money that can
be spent, for a physical condition, no limits can be placed on mental health
visits. If any limits are set, they have to be the same for mental health as
for physical problems.
“Mental health
conditions” include any condition or disorder involving mental illness,
alcohol or substance abuse.
Under this new law, the Vermont Department of Banking, Insurance, Securities
and Health Care Administration will be writing and adopting rules to make sure
that any managed health care plan does not lessen or try to counteract the purpose
of this new mental health parity law.
Medically Necessary
Care and Treatment of Cancer
In 1997, Vermont passed a law that requires all health insurance plans to cover
“medically necessary growth cell stimulating factor injections” which
are taken as part of a chemotherapy program. Be aware that you, and others covered
by your health insurance plan, are entitled to have this sort of cancer treatment
covered.
Coverage for
Pre-Existing Conditions and Changes in Employment
If you change your health insurance policy from one provider to another, which
often occurs when you change employment, you may have the right to have any
pre-existing medical conditions covered by your new policy. For example, although
a company may have imposed a twelve month waiting period before it would cover
your pre-existing condition, the new “portability” laws operate to
either greatly reduce, or even completely eliminate, that waiting period.
Vermont is one
of only a few states which provides good protection for people who have individual
policies, as well as people who have small group or large group policies. It
is important to know that the federal Health Insurance Portability and Accountability
Act of 1996 (“HIPAA”), which also requires health insurance companies
to cover pre-existing conditions under certain circumstances, only gives limited
protection for individual policyholders and that the rights that women have
in Vermont may not exist if you move to another state.
Domestic Partner
Health Benefits
In Vermont, each employer may decide whether to extend health insurance benefits
to unmarried same-sex and opposite-sex domestic partners of their employees.
A good number of employers in Vermont have decided to offer such coverage.
If you are employed by the University of Vermont, health insurance coverage
for your same-sex domestic partner is required (if you request it), due to a
ruling by the Vermont Labor Relations Board in the case of Grievance of B.M.,
16 VLRB 207 (1993).
Vermont state government
employees have been offered domestic partner benefits by the state since about
1994. You should check with your employer, whether private or public, to find
out if such equal health insurance, and other benefits, are available for your
domestic partner.
HIV/AIDS
Insurance companies can require applicants for insurance to be tested for their
HIV status, but only if the company provides appropriate notification to the
applicant, as required by Vermont law and the applicant gives her or his written
informed consent. An applicant’s consent to the test must be voluntary
and can be given only after the applicant has been informed that the test is
going to be performed, and what the meaning of either a positive or negative
test result will be. An insurance company cannot ask if you have been tested
for HIV/AIDS in the past, but the company is allowed to ask if you have ever
been treated for or diagnosed as having HIV/AIDS.
You should also
be aware that there are two kinds of HIV testing available in Vermont: anonymous
and confidential. Under “anonymous testing” you can contact the AIDS
hotline at the Vermont Department of Health and have the test conducted by a
medical professional where you are only identified by a code number, rather
than using your name (see Resources chapter - AIDS/HIV). Under “confidential
testing” the test is also done by a medical professional, but the fact
of your having such a test, and the results, may be placed in your medical records.
(Also see chapter on Governmental Benefits, section on “AIDS Assistance.”)
Coverage of
Children - Child Support Orders
Vermont law was amended in 1994 to make it easier for divorced parents to obtain
health care coverage for their children under their own health plans. The law
provides the following:
• When a child support order requires a parent to provide coverage of health
insurance for a child, and the parent is eligible for family health coverage,
the parent’s employer and the health care insurer must allow the child
to be enrolled regardless of any “enrollment season” restrictions.
In addition, the child cannot be eliminated from coverage unless: this portion
of the child support order is no longer in effect; the child is or will be enrolled
in comparable health coverage through another insurer; or the employer has eliminated
family health coverage for all its employees. The parent who is required to
provide medical support for the children under a child support order is required
to inform his or her employer in writing (or if self-employed his/her insurer)
of this fact within 10 days of the date of the order. The employer is then required
to notify the insurer.
• Health insurers must allow a child to be added to an employee’s
health plan even if the child’s parents were not married at the time of
birth, if the child is not claimed as a dependent on the parent’s federal
tax return or if the child does not reside with the parent or in the insurer’s
service area.
• When a child has coverage under the health plan of one parent, the insurer
also must provide information to either parent about how the child can obtain
benefits and how either parent can make claims for the child. Each parent has
the right to appeal any denials of claims without the approval of the other
parent.
Adopted Children
The 1994 Vermont law regarding insurance coverage for children also requires
all health plans in Vermont which provide coverage for dependent children of
participants or beneficiaries of the health plan to treat adopted children the
same as biological children are treated. This applies to all children who have
been placed for adoption, even if the adoption has not become final. The health
plan is also prohibited from restricting coverage for adopted children, solely
on the basis of their having a preexisting condition.
Vermont Health
Access Program
(This managed care health insurance program for uninsured and underinsured Vermonters
was established in 1995. See chapter on Governmental Benefits.)
Childhood Vaccines
Under Vermont law, health insurance plans cannot reduce their coverage for vaccines
for children below the level they provided on May 1, 1993.
Supplemental
Health Insurance
If you are 65 years and older you may need additional insurance to provide coverage
for conditions not covered by your basic health insurance policy or Medicare.
One such supplemental coverage is medicare supplement insurance, often referred
to as “medigap” health insurance and medicare managed care health
insurance.
Another type of insurance you may want to consider is “long-term care insurance.”
In order to be called long-term care insurance in Vermont, the policy must cover
nursing home care, home health care, options for adult day care as well as inflation
protection. It is possible to provide lesser insurance which only covers nursing
home care, but that must be stated clearly and cannot be called long-term care
insurance.
Life
Insurance
Life insurance rates are not regulated in Vermont. There are scores of life
insurance products on the market today, many of which combine both insurance
and investment features.
• No frills “term” insurance is inexpensive if a person is young
and in good health, and provides the maximum death benefit for the least cost.
• Cash accumulation, dividend and loan features, in addition to death benefits,
are available in other types of policies for a higher premium.
• An “annuity” is a type of insurance policy which provides an
annual or monthly income for as long as a person lives, rather than a lump sum
when a person dies.
Whenever a person buys a life insurance policy which provides more than simple
term insurance, the insurance company is investing part of the premium for that
person. Compare the projected return with similar investment opportunities before
buying and take note of any surrender or cancellation charges.
Disability
Insurance
This type of protection is designed to help replace lost income if a person
is sick or injured. It is probably the most difficult type of insurance to obtain.
Few companies sell disability insurance for homemakers.
• Disability insurance is sold according to a formula which allows for
Social Security benefits (see below). Depending on your salary, a disability
insurance policy pays benefits equal to between 40% and 60% of your salary.
You can buy a policy which pays at a higher rate, but it will probably be a
“short term” disability policy; that is, it will pay benefits for
no more than a year even if your disability lasts longer.
• Some companies will not sell to persons making less than $12,000 to $16,000
a year. If you run into this problem, you should shop around, because there
are many companies that will sell to persons making less than $12,000.
• Coverage and availability of disability insurance depends on the company,
the salary level, and the length of the policy (for example, whether it is long-term
or short-term). Coverage and availability can also depend on whether the policy
rate is guaranteed to be renewed from year to year. If it is, the company’s
selling guidelines are probably stricter.
• A disability insurance policy will only cover “complications of
pregnancy” and are not required to provide regular pregnancy coverage.
Don’t buy life or disability insurance without first obtaining a “benefits
estimate” from the Social Security Administration. Depending on eligibility
status, a spouse could be entitled to child-rearing and retirement benefits.
If your Social Security benefits are high, you may not need as much life or
disability insurance. You can get a “benefits estimate” from the Social
Security Administration. (See Resources chapter - Aging.)
Credit
Insurance
When a person borrows money for a car, house or other major purchase, credit
insurance is frequently offered by the lender. Credit insurance will pay off
the loan if you die (credit life insurance) or make monthly payments if you
are disabled (credit accident and health insurance). The lender cannot make
you buy credit insurance as a condition of receiving the loan. Credit insurance
is generally more expensive than other types of life or disability insurance
for younger borrowers. Your existing life or disability policies often can cover
you for the additional obligation of a new loan. If you are interested in purchasing
credit insurance, you should check existing policies and comparison shop before
checking the “yes, I want credit insurance” box on your loan papers.
Credit insurance generally has three conditions that must be met before a person
can get it. They include:
1) good health;
2) gainful employment; and
3) appropriate age at the time of the loan (under 65, usually).
Many people do not realize that even though an insurance certificate is issued
with the loan papers, the company may deny coverage when a claim is made if
you have made false statements about any of the conditions. If the lender has
filled in any information about you on the insurance forms, you should check
it carefully before signing your name. Remember, you do not have to purchase
credit insurance when obtaining a loan.
(Also see chapter on Consumer Protection and Credit Transactions for your rights
under state and federal fair credit reporting laws.)
Relevant Laws
Vermont:
Credit Insurance, 8 V.S.A. § 4101, et seq.
Health Insurance, 8 V.S.A. § 4061, et seq.
HIV/AIDS, 8 V.S.A. §§ 4724(7), (20)
HMO’s, 8 V.S.A. § 5101, et seq.
Insurance Trade Practices, 8 V.S.A. § 4721, et seq.
Life Insurance, 8 V.S.A. § 3701, et seq.
Long-Term Care Insurance, 8 V.S.A. § 8051, et seq.
Federal:
Health Insurance Portability and Accessibility Act of 1996 (HIPAA), Pub.L.104-191
Name
Changes
You can
choose to formally change your name through a number of different methods.
These include:
• getting married and choosing to take your husband’s last name or
hyphenating your‘s and your husband’s last names (but you are not
required to change your name when you get married)
• getting divorced and asking the court to include a name change in the
final divorce order
• filing a name change petition in Probate Court
Although it is commonly believed that you can change your name by simply using
a new name consistently (without the intent to deceive or defraud) and notifying
your bank, credit card company and other entities with which you do business,
this method is insufficient to achieve a legal name change. The Social Security
Administration, the Vermont Department of Taxes and other governmental agencies
may not allow you to simply register a name change unless you have official
documentation such as a marriage certificate, a divorce order or a name change
order from Probate Court.
Probate Court
A person may formally change her or his name by filing a name change petition
in the Probate Court of the district in which the person resides, if the person
is at least 18 years old and of sound mind. (See Resources chapter - Adoption.)
When a person petitions the court for a name change, a copy of the birth certificate
and marriage certificate (if any), must be provided so they can be properly
amended.
In 1994, the Vermont
law was amended to do away with the requirement that married people had to get
the consent of their spouse before they could legally change their name.
Marriage
Vermont law does not require a woman to take her husband’s surname when
she gets married. When a woman marries, she can decide whether to keep her surname,
change her surname to that of her husband’s or hyphenate her and her husband’s
surname. Any of these are legal and have to be respected by any entity with
which you and your husband do business (for example, credit card companies,
car salespeople, governmental entities, etc.).
Divorce
A name change petition is unnecessary if a woman decides to change her name
as part of her final divorce order. At that time, a woman can resume her maiden
name or the name of a former husband. It does not matter that the woman may
then have a different last name than that of her children. The names of minor
children can also be considered as one of the issues to be decided in the divorce,
if a request to change them is included in the complaint for divorce.
Children
When a child is born, he or she can be given any name, whether that name is
the name of either the mother or father (regardless of whether they are married
or not), is hyphenated or is made up.
Minor children may have their names changed by a person acting on the child’s
behalf in the same way that an adult can file a name change petition in Probate
Court. If the child is over 14 years of age, the child’s name cannot be
changed unless the child gives consent to the change in court. There are a number
of factors that the court might consider before deciding whether to agree to
changing the name of a minor. The Probate Court Procedural Rules also require
that if a parent or guardian does not agree to the name change, that person
has to be given notice of the name change petition.
Relevant Laws
Vermont:
Change of Name law, 15 V.S.A. § 811 et seq.
Vermont Rules of Probate Procedure, Rule 80.6
Public
Accommodations
(e.g.
restaurants, stores, hotels, hospitals, professional offices and schools)
Many straight women, lesbians and women of color are unaware of their legal
right not to be discriminated against in places of public accommodation.
This chapter will explain those rights, as well as those for women in other
“protected categories,” and will explain what is meant by a “place
of public accommodation.”
Public
Accommodations - Defined
People have the right not to be discriminated against in any place of public
accommodation. While the phrase “public accommodation” is not very
familiar to people, it actually covers many places which you frequently might
go into. The public accommodations provisions of Vermont’s Fair Housing
and Public Accommodations Act define a “place of public accommodation”
as “any school, restaurant, store, establishment or other facility at which
services, facilities, goods, privileges, advantages, benefits or accommodations
are offered to the general public.” This also includes most hospitals,
professional offices (such as doctors, dentists, lawyers and accountants), retail
stores, inns, hotels and schools. In addition to privately owned places of public
accommodation, a governmental entity, like a municipality or the State of Vermont,
can be considered a “public accommodation” if it owns, leases or operates
a place which offers any goods, services, benefits, etc. to the general public.
(Also see chapter on Education for a more complete discussion of discrimination
in schools.)
Any item or service that is offered by a place of public accommodation cannot
be refused, denied or withheld from any person on the basis of that person’s
sex, race, color, religion, national origin, marital status, sexual orientation
or physical or mental disability.
The only exception
included in the public accommodations provisions of Vermont’s Fair Housing
and Public Accommodations Act, is that an inn, hotel, motel or other place of
temporary lodging can discriminate on the basis of sex or marital status if
it has five or fewer rooms for rent or hire.
Sex Discrimination
There has been a lot of debate concerning discrimination by private, male-exclusive
clubs. Some of these have been challenged under the public accommodations laws
and have been determined to be more “public” than “private.”
For example, if the establishment has a bar or restaurant that is open to the
general public, and not just restricted to the club’s members, or if the
purpose of the club is less social and more likely to be a place where business
is transacted, it might no longer be considered a “private club.”
Since these challenges, a number of previously male-only clubs and associations
have become open to women.
No place of public
accommodation can refuse to provide its goods or services to you, or treat you
differently, just because you are a woman, a lesbian, a person of color, or
a member of any of the other categories listed above. This also means that if
you are severely harassed on any of these bases, you might also have recourse
under Vermont’s law regarding public accommodations.
Sexual Orientation
Discrimination
Some places of public accommodation in Vermont have been slow to recognize that
they cannot offer goods or services to married couples at a different rate than
for unmarried same-sex and opposite-sex couples. If a place provides a discount
for a married couple but does not extend the same discount to an unmarried same-sex
or opposite-sex couple, discrimination may be occurring. Examples could include
discounts for combined house/auto insurance policies, “family” ski-lift
tickets, etc.
Disability Discrimination
Special provisions of the Vermont Fair Housing and Public Accommodations Act
(ADA) and the federal Americans With Disabilities Act govern the rights of people
with disabilities in places of public accommodation. The following are only
some examples of these rights:
• a person who uses a service animal, such as a seeing eye or hearing ear
dog, cannot be prevented from entering any place of public accommodation that
might otherwise have a “no animals” policy (for example, establishments
that offer food or lodging)
• existing establishments which have some architectural or communications
barrier for people with disabilities are required to remove the barrier, if
it can be done without much difficulty or expense
• if it is necessary for a person with a disability to have some reasonable
modification made to the policies, practices or procedures of a place of public
accommodation in order to be able to use it, those modifications must be made
unless they would fundamentally alter the nature of the place
• places of public accommodation also have to provide auxiliary aids or
services such as sign language interpreters, notetakers, assistive listening
devices, telephone amplifiers, Braille and large-print materials and audio recordings
(to name a few) if they are needed unless providing them would either fundamentally
alter the nature of the place or would result in an “undue hardship,”
i.e., would be unduly difficult or expensive to provide
• any examinations or courses related to applications, licensing, certification
or credentialing for professional or trade purposes or for secondary or post-secondary
education by a place of public accommodation must be offered in a place and
manner that is accessible to people with disabilities
The federal Americans With Disabilities Act also requires all newly built places
of public accommodation and commercial facilities which were first occupied
after January 26, 1993 (and whose permit process was completed after January
26, 1992) to be accessible to individuals with disabilities. Any alterations
that are made to existing places of public accommodation and commercial facilities
must be accessible to the maximum extent feasible. The requirements for accessible
construction are set forth in the Americans with Disabilities Act Accessibility
Guidelines (ADAAG). These same guidelines are referred to in Vermont’s
Accessibility Standards for Public Buildings and Parking Act, as amended in
1996.
Addressing Discrimination
If you believe you have been discriminated against in a place of public accommodation
you can:
• file a complaint with the Vermont Human Rights Commission (See Resources
chapter - Legal)
• file a complaint with the Vermont Department of Labor & Industry,
Fire Prevention Division (for accessibility violations) (See Resources chapter
- State Agencies)
• file a complaint with the U.S. Department of Justice, Disability Rights
Section, Civil Rights Division (for accessibility violations) (See Resources
chapter - Disability and Accessibility)
• consult with a private attorney (See Resources chapter - Legal)
Relevant Laws
Vermont:
Accessibility Standards for Public Buildings and Parking, 21 V.S.A. §271,
et seq.
Fair Housing and Public Accommodations Act, 9 V.S.A. §4500, et seq.
Federal:
Americans with Disabilities Act Accessibility Guidelines (ADAAG), 28 C.F.R.
§§35, 36
Title II of the Civil Rights Act of 1964, 42 U.S.C.A. §2000a
Title III of the Americans with Disabilities Act of 1990, 42 U.S.C.A. §12181
Reproductive
Rights
All Vermonters,
regardless of age or marital status, have the right to birth control and birth
control information.
Birth Control
A woman does not need permission from a parent, guardian, or husband to get
birth control. The choice to use birth control is up to you. If the method needs
to be prescribed by a medical facility, a woman can be seen regardless of age.
Information gathered at that visit is private. It cannot be released to anyone
without your permission. Prescription contraceptives may or may not be covered
by your health insurance plan.
Abortion
In Vermont, a woman has an unrestricted legal right to get an abortion regardless
of her age or marital status. You do not need to notify or get permission from
a parent, guardian, or spouse. As of this writing in 1998, no legal limitations
have been placed on a woman’s access to abortion in Vermont although there
are frequent attempts to do so. (There was an 1846 law which made it a crime
to perform an abortion, but this law was struck down as unconstitutional by
the Vermont Supreme Court in 1972.)
An abortion is
easiest and safest when performed during the first trimester. In Vermont, it
is unlikely to find a clinic that offers abortions after the fifteenth week.
Abortions that present situations of grave danger or severe fetal deformity
are performed in a hospital.
(See Resources chapter - Abortion and Reproductive Rights)
Minor’s
Rights
A minor’s rights in Vermont are the same regardless of whether she chooses
to have an abortion or carry the child to term.
• In Vermont, a minor 14 years old or older can petition the court for
a guardian if she is having a dispute with her parents over her pregnancy.
• If a minor is of childbearing age, she has the right to decide to abort
her pregnancy or carry it to term.
• Parents are not legally allowed to insist that a minor child give her
baby up for adoption.
• The Vermont Department of Social and Rehabilitative Services may become
involved if the minor has been abused or neglected, or is unmanageable.
Although there are no laws which require a minor in Vermont to obtain her parents’
permission in order to get an abortion, this does not mean that all doctors,
hospitals or clinics in Vermont will provide confidential health, birth control
or abortion services to minors. If this is a concern for you, be sure to ask
whether or not you will be seen confidentially and that your medical records
will not be provided to your parents before choosing your abortion or birth
control provider.
Insurance Coverage for Abortion
While women in Vermont have unrestricted access to abortions, this does not
mean that all health insurance policies will pay for the cost of having an abortion.
The federal budget act passed in 1996 took away all federal employees’
ability to choose a health insurance plan that covered abortions. This affects
all women who work for federal agencies in Vermont. (Similar restrictions now
also apply to women who serve as Peace Corps volunteers and women in federal
prisons, although none exist in Vermont.) Also in 1996, federal law was amended
so that U.S. military servicewomen and the female dependents of U.S. military
servicemen can no longer get abortions in U.S. hospitals overseas, even if they
pay for them with their own money.
If you have health
care insurance and are not a federal employee, you should check with your provider
to find out if the cost of abortion, as well as contraceptives, is covered by
your policy. Due to the upheaval in the health care industry, some policies
provide coverage while others do not.
Medicaid Coverage
of Abortions
While many state and federal laws have eliminated or limited the use of Medicaid
funds for abortions, this is not true in Vermont. Women who are eligible to
receive Medicaid are entitled to have the cost of abortions covered under the
state Medicaid program.
In a 1986 Vermont
Superior Court case in Chittenden County, Doe v. Celani, the court ruled that
the Vermont Department of Social Welfare must pay for medically necessary abortions
for women eligible for Medicaid. The term “medically necessary” considers
any of a number of factors relevant to the health-related well-being of the
woman, including physical, emotional, psychological and familial concerns. The
decision in Doe v. Celani held that because the Vermont State Constitution protects
the fundamental right to personal safety and prohibits unequal provision of
government benefits, it would be discriminatory to deny poor women access to
legal abortion when it is necessary to preserve their life or health.
Federal Law
The right to obtain an abortion is protected under the U.S. Constitution, according
to the 1973 U.S. Supreme Court decision in Roe v. Wade. This U.S. Supreme Court
decision holds that the constitutional right to privacy extends to the decision
of a woman (in consultation with her physician) to manage her own pregnancy,
including her right to seek and obtain an abortion. While some people believe
that future decisions by the U.S. Supreme Court will severely restrict or eliminate
a woman’s right to an abortion (and that Roe might be overturned), abortion
will still be legal in Vermont. This will be true unless the Vermont legislature
changes the present law in this state and such a change is then upheld by the
Vermont Supreme Court.
Since the U.S. Supreme Court decision in Roe, there have been a number of decisions
by the U.S. Supreme Court that have allowed other states to enforce laws which
limit and restrict the right to abortion in various ways. These restrictions
include mandatory waiting periods, particular forms of pre-abortion counseling,
parental consent and notification laws, Medicaid funding restrictions for low-income
women, bans on insurance coverage for abortion, bans on particular abortion
procedures, and prohibitions on the use of public facilities or the participation
of public employees in providing abortion services.
Keep in mind that
there is always the possibility that such restrictions could be passed into
law in Vermont although, as of this 1998 edition, such attempts have not been
successful.
The latest attempts
to limit the right to an abortion have focused on lobbying state legislatures
and the U.S. Congress to outlaw specific types of abortion procedures. The most
recent battle has been over the ability of doctor’s to perform “late
term abortions.” As of this 1998 edition, such abortions (which happen
in rare circumstances) were still able to be performed but were under significant
attack.
Relevant Law
Vermont:
Beecham v. Leahy, 130 Vt. 164 (1972)
Federal:
Roe v. Wade, 410 U.S. 113 (1973) (established a woman’s right to choose
an abortion)
Webster v. Reproductive Health Services, 492 U.S. 490 (1989) (allows states
to impose greater restrictions on second trimester abortions)
Planned Parenthood v. Casey, 505 U.S. 833 (1992) (permits states to impose restrictions
as long as they do not “unduly burden” a woman’s right to choose)
Violence
Against Women and Children
Women
and children are often the victims of particular types of violent crimes.
Throughout the 1990’s, Vermont law has recognized the need for greater
protection for the victims of such crimes. Significant changes have taken place
in the areas of bail, sexual assault, aggravated sexual assault, kidnapping,
stalking, childhood sexual abuse, domestic violence, and overall victims’
issues. This
chapter will describe each of these offenses and the rights of victims.
Please note that although this chapter is addressed to women, attributes the
described legal rights to women and makes the assumption that the victims of
domestic abuse and violent crimes are women, these legal rights apply to women
and men equally.
Domestic
Violence
Every 9 seconds, a woman somewhere in the United States is beaten. Based on
numerous studies, researchers believe that as many as 60% of all women in the
U.S. will be abused during their lifetime. Domestic violence is not limited
to any particular group or economic class of women. Wealthy women and poor women,
single and married women, white women and women of color, heterosexual women
and lesbians, women who work in the home and outside the home, and teenagers
and elderly women are all likely to experience abuse.
It is important
for every woman to know how the law can help to protect her and to assist her
in leaving an abusive home and relationship. (Also see Resources chapter - Violence,
for the Abuse Hotline and information about shelters and safe homes.)
Domestic violence
can be addressed in Vermont under both the civil and criminal justice systems.
Women can seek help through Vermont’s Abuse Prevention Act by applying
for a civil “Relief From Abuse Order.” In addition, domestic assaults
can be reported to the police and prosecuted by the local State’s Attorney’s
office as the crime of domestic assault.
Vermont’s laws against domestic abuse apply if a woman or any other family
or household member:
• is physically hurt (either deliberately or recklessly), or
• has been the victim of an attempt at physical injury (whether or not
the attempt is successful), or
• is placed in fear of being seriously physically hurt by another member
of her current or past family or household.
In 1990, Vermont law was amended to recognize that domestic violence does not
only occur in families consisting of a current or past married or heterosexual
couple. The law now applies both to members of families and households. Since
the word “family” is not defined in the law, different judges have
applied the abuse prevention law to cover adoptive or foster parents, children,
siblings, aunts, uncles, cousins, in-laws, etc. “Households” are defined
as “persons living together or sharing occupancy and persons who have lived
together in a sexual relationship.” This could include:
• people who currently live together, whether or not they have a sexual
relationship, and whatever their sexual orientation
• people who are housemates or roommates
• people who have lived together in a sexual relationship in the past
Judges have accepted different definitions of what “living together”
means. Some judges have applied the abuse prevention law to couples who spent
as little as one overnight together, others include couples who occasionally
spend overnights together, while others require as much as a full-time, live-in
relationship.
Domestic
Abuse (civil)
Relief From Abuse Order
Vermont’s Abuse Prevention Act is designed to provide immediate protection
from domestic abuse through the civil court system. This law allows a person
to request a Relief From Abuse Order against her abuser to prevent further abuse
of herself or her children if her abuser is or was a family or household member.
(See above for definitions.)
A woman can apply
for an emergency Temporary Relief from Abuse Order if she believes she or the
children are in immediate danger of being further abused. She can apply to a
Vermont Family Court, Superior Court or District Court Judge for a Temporary
Relief from Abuse Order in the county in which she lives or the county to which
she has gone to protect herself, for example, a friend or family member’s
home or a shelter.
The courts, and
many support organizations for women, have copies of the forms that are used
in applying for a Relief from Abuse Order. You do not have to wait until regular
business hours to seek a Temporary Order. There is also a process for getting
relief after regular court hours or on weekends or holidays. (See section below
on Getting Help.) This emergency order can be applied for and granted without
giving advance notice to the abuser. In addition, there is no charge for filing
for a Relief From Abuse Order.
To apply for a
Temporary Relief From Abuse Order, you must write an “Affidavit” describing
the details of what happened and explaining why you are afraid for yourself
and/or your children. The judge may order the abuser to stop abusing, contacting,
harassing, threatening or stalking you. The judge may also order the abuser
to leave the home and may award temporary custody of the children to you.
Filling out the papers to request a Relief From Abuse Order does not begin divorce
proceedings, nor does a woman have to file for a divorce or legal separation
in order to get a Relief From Abuse Order.
If the Temporary
Order Is Denied
It is possible that the judge could deny the request for the emergency order.
If this happens because the judge does not feel there is enough information
about the abuse in the Affidavit, you may be given the opportunity to speak
to the judge so you can better describe or explain the situation.
If the judge still
denies all or part of what you have requested, the judge is required to provide
written reasons for the denial. You are then entitled to ask the court for a
hearing. This hearing must be held within 10 business days of the date of your
request and after the alleged abuser has been properly notified about the hearing.
When the Temporary
Order Is Granted
The Temporary Order is not considered to be “in effect” until after
it has been “served” on the alleged abuser. This means that the Order
must be personally delivered by a sheriff, constable, state or local police
officer. Some court clerks will arrange for the service of the Order, but usually
you will have to arrange for service to happen. Under the federal Violence Against
Women Act, there should be no fee charged for service of this order. Police
agencies are required to serve Orders at the earliest possible time.
If you get a Temporary
Order, you should give copies to the local and State police and sheriff where
you live and where you work. You should also carry a copy with you at all times.
As long as the Order is in effect, the protections granted to the victim in
the Order are kept on file in a statewide police computer file. This gives police
officers who are being asked to enforce the Order the ability to verify the
protections that the judge has ordered and to ensure that they are still in
effect.
If you are in fear that your abuser will not honor the terms of the Order, it
is important to consider taking all other necessary steps to protect yourself,
for example:
• changing the locks on your doors (and keeping them locked when you are
at home)
• temporarily staying with people who can protect you or having them stay
with you
If the abuser violates any of the provisions in the Order after being served,
he or she has committed a criminal act. Prompt reporting of the violation to
the police is essential. (See section on “Violations of the Order.”)
The Temporary Order remains in effect until the date of the Final Hearing. This
Final Hearing has to be held
within 10 business days of the Order being issued. It is also possible that
the Final Hearing could be held earlier than the date scheduled if the abuser
has compelling reasons to ask for changes in the Order about child custody or
possession of the home. (See next section on Defendant’s Right to an Early
Hearing.)
Defendant’s/Alleged
Abuser’s Right to an Early Hearing
It is possible for the alleged abuser (the “defendant”) to ask the
court to move up the hearing date in order to decide the temporary possession
of the house and child custody. If there is a request for an “early hearing,”
the victim is entitled to get a copy of whatever papers the defendant has filed
with the court, which must include the reasons the defendant is asking for an
early hearing and whether he or she will be represented by a lawyer. If the
court informs you that the defendant is going to have a lawyer, the hearing
cannot be held until 48 hours after you have been informed. This gives you some
time to hire your own lawyer, if you want to do so. Although the only issues
that can be decided at this “early hearing” are child custody and
possession of the home, if you and the defendant agree, this early hearing can
become the Final Hearing in order to also deal with the issue of the alleged
abuse.
Getting Help
A woman does not have to hire an attorney to get a Relief from Abuse order,
and she does not have to pay a fee to the court. If she needs help or advice
in dealing with an abusive situation, she can get help from her local domestic
violence program. There are fourteen domestic violence programs around the state.
These programs provide help 24 hours a day, seven days a week. (See Resources
chapter - Violence) Statewide Domestic Abuse Hotline (1-800-228-7395)
A domestic violence program is a group of people, most of them volunteers, who
are concerned about the problems of battering and who help abused women and
children. Often the staff and volunteers are women who are survivors of domestic
violence. The programs are not part of any governmental agency, although they
receive some state and federal funds.
Domestic violence
programs provide a variety of confidential services which may include:
• help in obtaining a Relief From Abuse Order
• a confidential temporary place to stay or a hiding place
• peer counseling and support groups
• help in obtaining medical and legal services, help from social programs
(child care, food stamps, welfare, etc); and
• emergency food and clothing, etc.
Of course a woman
can choose to hire a lawyer if she feels she wants or needs one. (See Resources
chapter - Legal)
If either the woman or the alleged abuser gets a lawyer for any hearing and
does not give the other person advance notice that he or she is being represented,
the other party has the absolute right to have the hearing postponed in order
to be able to hire their own lawyer. You must ask the judge for this postponement,
if you need it. If a Temporary Order has been issued, the Order will stay in
effect until the hearing takes place.
Victim and Crisis
Worker Privilege
In 1994, Vermont gave legal protection to the relationship between victims of
abuse or sexual assault and their crisis workers. Now, a victim who has received
direct services from a crisis worker has the privilege to refuse to disclose,
and to prevent any other person from disclosing, any oral or written information
she may have told or given to her crisis worker in confidence.
The Final Hearing
Both the victim and the defendant (if that person attends) will have a chance
to tell their side of the story. After listening to both people and to any other
witnesses, the judge will decide whether to grant a Final Relief from Abuse
Order. This Final Order will be in effect for as long as the judge decides is
necessary. The judge can decide to keep the original protections from the Temporary
Order in effect, change them, add to or deny some or all of them. The judge
may not enter “mutual orders” (that is, against both parties) unless
they have both filed petitions and affidavits in advance of the final hearing.
In many family
courts, before the final hearing, domestic violence program staff, members of
the court staff and a police officer provide separate educational sessions for
victims and abusers to explain what will happen in the hearing and what kinds
of protections the judge can order at the final hearing.
Before the hearing, the victim should look at the kinds of protection a judge
can order to see which she or her children need.
If she wants a
kind of protection that is not listed below, she can ask the judge for it at
the hearing. The judge can order whatever additional protections the victim
and children need to be safe.
The Final Relief from Abuse Order can order the abuser to:
• stop abusing a woman and/or children
• stop threatening to abuse a woman and/or children
• not interfere with a woman and/or children’s personal liberty
• not stalk the woman or children
• not contact the victim and/or children in person, by phone or by mail
• not come within a specific number of feet of the victim and/or children,
the victim’s home, or other places where the victim or children are likely
to spend time
• immediately leave the house or apartment where the victim lives and give
sole possession of the house to the victim
• give custody of the children to the mother
• be allowed to visit with the children under any conditions needed to
protect the children and/or the victim from abuse (if the abuser has been convicted
of a sexual offense against his/her child, the court can consider that as grounds
for denying or limiting visitation)
• pay the victim’s living expenses for up to 3 months if he is married
to her
• pay child support for up to 3 months if he or she has a legal duty to
support the children. (Biological fathers, whether married to the mother or
not, have a duty to support their children, as do adoptive parents and many
stepparents. Since this is a legal decision, it is up to the judge to decide
whether to order the abuser to pay child support)
The judge can enter
an order even if the defendant does not appear at the hearing (as long as he
or she has been served with the Temporary Order, including notice of the final
hearing date). In this case, the Final Order must be “served” before
it can go into effect. Just like the Temporary Order, as long as the Final Order
is in effect, the protections granted to the victim are kept on file in a statewide
police computer file so police can verify the protections the judge has ordered
and ensure that they are still in effect. If it is time for the Final Order
to expire and the victim feels she still needs the protections, she can go back
to court and request an extension of the Order. She does not have to be abused
again while under the protection of the original Order to ask for and receive
an extension. The application to extend the Final Order should be made a few
weeks before the expiration date.
Changing the
Order
At any time during which the Final Order is in effect, either person can go
back to court and request a change in the Order if there are major changes in
the situation or if there is agreement between the two parties about making
changes.
It is advisable to go back to court to amend the Order rather than informally
allowing the defendant to violate its provisions. An example of a modification
could be asking the court to lift the prohibition against telephone contact,
if you feel this protection is no longer necessary.
Violations of the
Order - (Penalty for first time violation of the Order: he or she can be sentenced
for up to one year in prison and/or fined not more than $5,000 and/or be ordered
to attend domestic abuse counseling. If the abuser can afford it, he or she
must pay all or part of the costs of the counseling.
Penalty for second or subsequent violation of any person’s Order: he or
she can be sentenced to up to three years in prison and/or fined not more than
$25,000 and/or be ordered to attend domestic abuse counseling.)
\If a woman believes
that the abuser has violated one or more conditions in either the Temporary
or Final Relief from Abuse Order, she should call the police. Some examples
of the types of conditions that an abuser might violate include threatening,
frightening or hurting the victim again, failing to leave the house or refusing
to give the woman custody of the children. The woman should tell the police
she has a Relief from Abuse Order and then describe what is happening or has
happened. Victims of domestic abuse have the right to have the police enforce
the Order and to protect them. If the police have reason to believe that the
Order has been violated, they can arrest the abuser and charge him or her with
a crime.
Violations of a
Temporary or Final Relief from Abuse Order which has been issued in Vermont
or in any other state is a crime in Vermont. Be aware that even though the police
may arrest the abuser for committing a violation of the Order, this is no guarantee
that the abuser will be kept in jail. Unless the court finds that there are
reasons to deny the abuser the ability to be released on bail or other conditions,
there is no guarantee that the abuser will be kept in jail pending a trial or
hearing. (See later sections on “Bail” and “Conditions of Release,”
p. 66) A woman should take every step to keep herself and her children safe,
even after the abuser has been arrested for violating an Order.
Even if an abuser
is criminally charged for violation of a Temporary Relief from Abuse Order,
you should still go forward to get a Final Relief from Abuse Order. The criminal
prosecution is in addition to, and should not be considered a substitute for,
getting a Final Relief from Abuse Order.
Criminal Contempt
- (Penalty for criminal contempt: up to six months in prison and/or fined up
to $1,000)
It is possible that the State’s Attorney’s office might charge a person
who has violated a Relief from Abuse Order with “criminal contempt.”
(Criminal contempt is when someone disobeys a judge’s order given in a
criminal matter - in this case a Relief from Abuse Order.) This method is not
often used, since stiffer penalties can be gotten if the person is charged with
violating a Relief from Abuse Order under Vermont’s Abuse Prevention Act.
Abuse Orders
from Other States
A woman who has received an Order designed to protect her and her children from
abuse, from any state in the United States, any federally recognized Native
American tribe, territory or possession of the United States, the Commonwealth
of Puerto Rico or the District of Columbia, can be protected by that Order in
every state in the United States, as long as the order was served on the defendant.
Vermont law calls
these orders “foreign abuse orders” and recognizes the protections
granted in these orders. Vermont police are required to enforce them as if they
were a Vermont Relief from Abuse Order. A Vermont police officer can enforce
a foreign abuse order if s/he can see a copy of the Order and if the Order is
still in effect. Police may rely on the written and sworn statement of the woman
protected by the out-of-state abuse order that it is still in effect.
If she chooses,
when a battered woman from another state comes to Vermont she may get her foreign
abuse order put on file in Vermont courts and in the statewide police computer
file. This can be accomplished by giving the clerk of any Vermont Family Court
a certified copy of her Order. She will have to swear under oath in an affidavit
that, to the best of her knowledge, the Order is currently in effect as written.
The out-of-state order can still be enforced if it is not on file, but the police
must see a copy of it.
By filing the out-of-state
abuse order with the court, the police can better protect you since the police
can then use the statewide computer file to verify that you have an effective
Order in case you call on them to enforce it. One negative aspect of having
your Order in the statewide computer file is if your abuser is a police officer
or court official in another state, that person might be able to trace your
whereabouts.
Any violation of
an out-of-state abuse order should be treated the same as a violation of a Vermont
Relief from Abuse Order.
Criminal
Domestic Assault
In addition to the ability of a woman to address domestic abuse through Vermont’s
Abuse Prevention Act and the Relief from Abuse process in Family Court, the
State’s Attorney can charge an alleged abuser with criminal domestic assault,
first degree aggravated domestic assault or second degree aggravated domestic
assault. These crimes were added to Vermont law in 1993. The definition for
the crime of domestic assault and the definition of domestic abuse for purposes
of the Relief from Abuse process are very similar.
At the time the
police respond to a call regarding domestic violence, the police may begin their
investigation to determine whether to charge the alleged abuser with the crime
of “domestic assault”. The police may arrest the alleged abuser even
if they did not witness the assault. These criminal acts are investigated by
the police and prosecuted by the local State’s Attorney’s office.
The crime of domestic
assault is committed when any person:
• attempts to cause or willfully or recklessly causes bodily injury to
a family or household member, or
• willfully causes a family or household member to fear imminent serious
bodily injury
(Penalty: up to a year in prison and/or a fine of not more than $5,000)
The crime of second degree aggravated domestic assault is committed when a person:
• commits a second or subsequent offense of domestic assault, which causes
bodily injury (e.g. if you are threatened or beaten up one night, and the following
night or weekend you are threatened or beaten again, the offense has escalated
to “second degree”), or
• commits the crime of domestic assault and causes bodily injury to another
person and such conduct violates specific conditions of a criminal court order
in effect at the time of the offense imposed to protect that other person (e.g.
conditions of release or conditions of probation)
(Penalty: up to five years in prison and/or a fine of up to $10,000. Like first
degree aggravated domestic assault, a person charged with this crime could be
held without bail if the court determines that there are reasons to do so.)
(See later section on “Bail”)
First degree aggravated
domestic assault is committed if the person:
• attempts to cause or willfully or recklessly causes serious bodily injury
to a family or household member, or
• uses, attempts to use or is armed with a deadly weapon and threatens
to use the deadly weapon on a family or household member, or
• commits the crime of domestic assault and has been convicted of aggravated
domestic assault in the past
Penalty: up to 15 years in prison and/or a fine of not more than $25,000. It
is also possible that a person charged with this crime could be held without
bail if the court determines that there are reasons to do so. (See later section
on “Bail”.)
It is important to know that it is still a crime if the person who domestically
assaults you was drunk. Being drunk is not a defense to the charge of domestic
assault.
At the first court appearance (the “arraignment”) the court can order
the defendant to abide by “conditions of release.” These conditions
may include:
• no contact with the victim and/or the children
• no harassment of the victim and/or the children
• no use of alcohol or drugs
• no possession of firearms
• staying a certain number of feet away from the victim, her home, residence
or workplace
• a curfew
If the defendant
violates any of the conditions imposed by the court, he or she may be charged
with the additional crime of violating the conditions of release. It is also
possible to have his or her bail revoked, although this is much harder to get.
The case may be settled by a plea agreement or may go to trial. If it goes to
trial, a judge or jury will decide if the defendant is guilty “beyond a
reasonable doubt.” The victim will usually need to testify at the trial.
If the defendant is convicted, the sentence can include time in jail, a suspended
sentence on probation, a fine or a combination of these sentences. Conditions
of probation can include protections for the victim and counseling for the abuser
(e.g. substance abuse, mental health or domestic abuse education). If the defendant
violates the conditions of probation, that person may be ordered to serve the
rest of the sentence in jail.
Federal Crimes
The U.S. Congress enacted the Violence Against Women Act as part of the federal
Violent Crime Control and Law Enforcement Act of 1994. This act created two
new federal crimes that provide further protection for victims of domestic violence.
These laws can be enforced by the U.S. Attorney’s office in each state.
It is a federal crime if:
• a person causes physical injury to a spouse or intimate partner and the
person crossed a state line with the intention of injuring, harassing or intimidating
his or her partner or spouse, or
• a person causes a spouse or partner to cross a state line and then causes
physical harm to the spouse or partner
It is also a federal
crime to cross a state line with the intention of violating a protection order
and violating the order by threatening, harassing or injuring a spouse or intimate
partner or causing a partner or spouse to cross a state line and then engaging
in conduct which violates a protection order.
In 1996, Congress
also enacted a “gun ban” for people who had been convicted of domestic
violence. This federal law makes it a crime for a person to purchase or possess
a firearm if the person is currently subject to a final protection order (after
a finding of abuse) or if the person has ever been convicted of a crime of violence
against a spouse or intimate partner. (As of this 1998 edition, amendments to
this law were pending in Congress.)
Child
Abuse
The term “child abuse” encompasses many different types of offenses
to children. It can include sexual abuse, physical battering, emotional abuse
and neglect (among others). It can be committed by people within the child’s
home and by people outside the home. Depending upon the nature and type of child
abuse, it may involve investigations and action by the Vermont Department of
Social and Rehabilitation Services, the police, the local State’s Attorney’s
office, the Attorney General’s office and the courts.
Under the law which
allows the Vermont Department of Social and Rehabilitation Services to become
involved, a child is considered to be abused or neglected if he or she has been
sexually abused, at a substantial risk of sexual abuse, or if the child’s
“physical health, psychological growth and development or welfare is harmed
or is at substantial risk of harm.”
It is also possible
to use Vermont’s Abuse Prevention Act to help protect your child from further
abuse if it has been committed by a current or past family or household member.
You can do this by seeking a “Relief from Abuse Order” as described
in the section above on “Domestic Violence.” Call the Statewide Domestic
Abuse Hotline (1-800-228-7395) or your local domestic violence program.
Reporting Child
Abuse
Vermont law places a legal obligation on certain people to report to the Vermont
Department of Social and Rehabilitation Services (SRS) within 24 hours, any
reasonable suspicion that a child has been abused or neglected. (See Resources
- State Agencies)
The people who
are “required to report” actual or suspected child abuse or neglect
include any person who is a:
• doctor, resident or intern, surgeon, osteopath, chiropractor, physician’s
assistant, hospital administrator, nurse, medical examiner, dentist, health
care provider
• school superintendent, teacher, librarian, day care worker, principal,
guidance counselor
• mental health professional, social worker, psychologist
• probation officer, police officer
• camp owner, administrator or counselor
In addition, any
other person who has reasonable grounds to believe that a child has been abused
or neglected may also file an oral or written report to the Vermont Department
of Social and Rehabilitation Services.
An investigation into a report of child abuse or neglect must start within 72
hours of receiving the report.
Vermont Dept. of Social and Rehabilitation Services (SRS)
Once a report is
received by SRS, they will determine whether or not to investigate and whether
or not they believe the report is substantiated. SRS will determine the level
of risk of harm to the child. Many different outcomes could result from an SRS
investigation, which sometimes can lead to court hearings and orders by the
court. Some of the possible results include:
• a determination that the report does not have merit
• provision of family support within the home by SRS or other community
organizations
• removal of an abuser from the home
• having the mother and child move to a family shelter (in the case of
domestic violence)
• having the child live temporarily with a relative/neighbor/friend
• removing the child from the home (but only if a court orders this to
occur)
• terminating parental rights (but only in the most extreme cases, and
only if a court orders this to occur)
Sexual Crimes
Against Children
If the child abuse includes a sexual or other criminal offense, the person alleged
to have committed this crime (the “defendant”) may be prosecuted by
the local State’s Attorney or the Criminal Division of the Vermont Attorney
General’s office. While your child may be a witness in the case, remember
that the prosecutor cannot represent you or your child. You may wish to consult
with your own attorney, as well as receive support from a victim’s advocate
(who is located in the State’s Attorney’s office). Also, if you or
another family member is the person being charged with the assault, you should
be represented by an attorney.
Some of the criminal
acts which are punishable under Vermont law, include the following.
Lewd or Lascivious Conduct with a Child
(Penalty for first offense: between one and five years and/or fined up to $3,000)
(Penalty for second offense: between 2 and 10 years and/or fined up to $5,000)
(Penalty for third and subsequent offenses: between 3 and 20 years and/or fined
up to $10,000)
The crime of “lewd
or lascivious conduct with a child” occurs when a person commits any lewd
or lascivious act on a child under the age of 16 years, with the intent of arousing,
appealing to or gratifying the lust, passions or sexual desires of him or herself
or of the child. Examples could include sexual touching, exposing genitals,
etc.
Sexual Assault
(Penalty: up to 20 years in prison and/or a fine of up to $10,000)
Sexual assault of a child occurs when there is a sexual act between a child
under the age of 18 and that child’s parent, grandparent, foster parent,
adoptive parent, step-parent, or person who has been given care of the child
by authority of law.
The penalty for
sexual assault of a child could be higher than the maximum of 20 years/$10,000
if the sexual act is with a child under the age of 16, and is performed by any
of the above-listed people or with someone who lives in the victim’s household
who is at least 18 years old and serves in some parental role with respect to
the victim. This situation could include a boyfriend/girlfriend of a parent
or an adult sibling of the minor who lives in the household.
It is also considered
to be sexual assault if someone engages in a sexual act with a person who is
under the age of 16, even if it is consensual. This is more commonly referred
to as “statutory rape.” (This cannot be charged if the people are
married to each other and the sexual act is consensual.)
Aggravated Sexual
Assault
(Penalty: up to life imprisonment and/or a fine of up to $50,000)
A person can be charged with aggravated sexual assault of a child between the
ages of 10 and 18 if any of the “aggravating” factors described below
on page 67. In addition, if a child under the age of 10 is sexually assaulted
by a person who is at least 18 years old, that person can be automatically charged
with aggravated sexual assault, due to the age of the victim.
When a Criminal
Prosecution of Childhood Sexual Assault Can Be Brought
Childhood sexual assault can be so devastating that it is often many years before
a victim is ready to take action, or even to report the assault. Vermont law
addresses this situation by granting longer periods within which a criminal
prosecution can be brought and, for certain offenses, doing away with the statute
of limitations entirely. You should check with either your local State’s
Attorney or the Attorney General’s office to determine whether or not your
case can still be prosecuted.
Crime
Victims’ Assistance, Notification and Compensation
One of the most difficult times in a woman’s life is when she has been
the victim of a criminal attack. Under Vermont law, crime victims have the distinct
right to receive assistance from the state in dealing with the aftermath of
the crime, to be informed and have access to various steps in the criminal justice
process, and to receive compensation for the harm.
Many times, we
are talking about women who have suffered sexual assault, stalking, kidnapping,
or other violent crimes.
Victims are entitled to receive certain information from the police, the victim’s
assistance program, the prosecutor’s office (usually the local State’s
Attorney) and the court at various stages in the criminal justice process. The
victim has the right to be kept informed during much of the investigation and
prosecution of the case. This could include the investigation, arrest, bail
hearing, pre-trial depositions and hearings (including bail), plea agreement
or trial, release or sentencing, probation or parole. The victim also may have
the right to be present, to testify and to state her opinion at various hearings.
Many of these rights were added to Vermont law in 1996 in the Victim’s
Bill of Rights.
It is important
to understand that, although the State’s Attorney’s office has the
power to prosecute an alleged criminal offender, the State’s Attorney does
not represent the victim of the crime. The case is brought by the State against
the alleged offender (the defendant). The victim may be a witness in the case,
may receive some compensation and is entitled to the rights outlined in this
section.
After Reporting
the Attack or Assault - The police must give the victim written information
including:
• an explanation of the victim’s rights
• the availability of assistance, including medical, housing, counseling
and emergency services
• information about the victim’s compensation program
• how to contact the center for crime victims’ services
• how to get protection, including protective orders
• how to get copies of public records in the case
If you have been
the victim of certain violent crimes, you are also entitled to have the police
give you the following additional information (for other crimes, the police
also might be willing to voluntarily give you the information):
• information about the identity of the person accused of committing the
crime against her, (unless the alleged offender is under 18 years old)
• whether the alleged offender has been taken into custody by the police
• the name and file number of the case
• the name, office street address and telephone number of the officer assigned
to investigate the case
• the prosecutor’s name, office street address and telephone number
• an explanation that you are not under any obligation to respond to questions
from anyone (including the alleged offender’s lawyers or representatives)
unless the questions are asked in a deposition or in a courtroom hearing
You have the right
not to talk to anyone (unless you are being deposed or questioned during a courtroom
hearing), no matter what criminal act you have suffered. Be careful with whom
you agree to have informal conversations, especially if you are confused about
which people are representing the State’s Attorney’s office and which
people are representing the alleged offender.
Assistance from
the Victim Advocate
If you are the victim of a violent crime, you will be assigned a victim advocate
from the victim’s assistance program. The victim advocate is usually based
in the local State’s Attorney’s office. This person will provide information
about the criminal justice system and support through the process. (See Resources
chapter - Violence)
The victim’s
assistance program is required to provide the following information and services
to you:
• information about the level of available protection for you
• help in getting police protection from harm and threats of harm that
may result from your cooperation with the criminal justice system
• help and support in dealing with police agencies and getting property
returned to you
• short-term counseling and support, as well as appropriate referrals for
other services
• help in getting financial help and other benefits while going through
the criminal justice process
• information about getting payment for being a witness
• help in getting restitution (i.e. money or services) and insurance for
the harm you suffered
• notification when a court proceeding involving your case is or is not
going to take place (unless the alleged offender is under 18 years old)
• getting rides to various court proceedings
• being present at depositions if you ask for personal support
• information about your right to request notification from the appropriate
agencies if the alleged offender has been released pending trial, released from
prison for any reason or has escaped
• notification of the conclusion of your case, e.g. plea agreements, trial
verdicts
• information about appearing at the offender’s sentencing
Notification
of Hearings and Sentencing
The victim of a violent crime is usually entitled to be notified of the following
(although victims of other crimes might want to ask for notification, as well):
• the hearing when the alleged offender is scheduled to be charged in court
(the arraignment)
• the scheduling or cancellation of any other hearing or court proceeding
regarding the case
• any substantial delay in the prosecution of the case (the state’s
attorney is also supposed to tell the court if the victim opposes or has any
position regarding any motion that might delay the trial)
• the final disposition of the case, including plea agreements, trial verdicts,
etc.
• the sentencing hearing (the victim has the right to be present and to
testify at the sentencing hearing, submit a written statement, or tell the state’s
attorney her views about the crime, the offender, the need for restitution and
sentencing - the court is required to take those views into consideration when
deciding what sentence to impose and what restitution to order)
• the state’s attorney is required to explain how much time the convicted
person could spend in prison, what is meant by minimum and maximum sentences,
how sentences might be shortened and how parole operates
• information, if requested, about any appeal or other motions an offender
files after being convicted, the scheduling of any post-trial hearings and any
post-trial decisions that are made by the court
Victim’s Rights to Certain Confidentiality and Work Protection
Vermont law also provides some confidentiality rights and requirements of job
protection. These include the following:
• the victim has the right to have her home address and workplace location
kept confidential from the alleged offender
• a witness who testifies during a case cannot be required to reveal the
home or workplace addresses of the victim
• the employers of people who have been victims of crimes, as well as their
families and representatives, cannot fire or discipline them for missing work
if a subpoena has required them to be at a court-related hearing or deposition
Rights at Depositions
“Depositions” are scheduled events at which time the victim and other
witnesses may be questioned by the lawyers for the accused and by the state’s
attorney. A person charged with a felony has the right to require depositions
of the witnesses. Although the whole experience might be intimidating, you do
have certain rights. These include:
• the right to bring your own attorney and/or victim advocate to the deposition
• the right to request that the alleged offender not be in the room
• if the court decides that the alleged offender must be present, you may
have the right to certain protections, such as having a screen set up between
you and that person
• the right not to be harassed or intimidated by the lawyers (this is often
open to interpretation and may need to be clarified by a judge)
If there is any
court hearing about the deposition of a victim, the victim has the right to
be represented by a lawyer at such a hearing since she is an actual party to
the hearing and not just a potential witness.
Rape Shield
Vermont has had a rape shield provision in its laws since 1977. This provision
generally provides that a person’s opinion or reputation of a victim’s
sexual conduct cannot be made part of a trial for sexual assault or lewd or
lascivious conduct. It also holds that evidence of the prior sexual conduct
of the victim cannot be admitted into evidence at the trial.
Questions about the past sexual conduct of a victim can be asked if a court
determines:
• that they bear on the credibility of the witness
• they are very important to one of the facts at the trial, and
• the value of the information is more important than the private nature
of the information.
Under these sort of circumstances, evidence can be admitted about:
• the victim’s past sexual conduct with the person accused of the
sexual assault
• specific instances of the victim’s sexual conduct showing where
semen, pregnancy or disease may have come from
• specific instances where the victim has made false allegations about
sexual assault in the past
Notification of Probation, Parole Hearings and Release from Prison
The victim has the right to request notification by the Vermont Department of
Corrections:
• about the offender’s general compliance with his or her conditions
of probation (but not confidential information the offender has revealed in
treatment)
• of a parole board hearing, 30 days before it is scheduled to take place
• of the victim’s right to testify or give a written statement to
the parole board, and her right to request that the offender not be present
when she testifies before the parole board
• of the parole board’s decision and any conditions of release it
may have imposed
• when the offender has been released from prison or has escaped
Victims’ Compensation
If you have suffered physical or emotional harm, pregnancy or death as the result
of the commission of a crime, you or your dependents may be entitled to receive
compensation from the Victims’ Compensation Board. (See Resources chapter
- Violence) After application, review and approval, the board can award cash
payments of up to $10,000.00 to compensate for any “unreimbursed pecuniary
loss” that was a direct result of the injury or death of the victim. This
means any monetary amount that:
• isn’t covered by insurance (medical, hospital, disability) or worker’s
compensation
• has not been ordered by the court to be paid by the person who committed
the crime
• the person ordered by the court to pay the money has not paid it
Sexual Offender Registry
In 1996, the Vermont legislature enacted the Sex Offender Registration Act.
This new law requires the Department of Public Safety to establish and maintain
a sex offender registry. This registry keeps certain information about sex offenders
so that they can be identified and located at any time.
Sex offenders are
required to report any change of address to the Department of Corrections within
three days of moving, and then the Department has to notify the registry within
24 hours. If the offender does not report a change of address, a warrant for
his or her arrest may be issued. In addition, the offender must report to the
Department of Corrections on an annual basis within 10 days after each anniversary
of his or her release from prison, for up to 10 years.
Even if a sex offender
has been convicted in a state outside of Vermont, the person is required to
provide information to the Sex Offender Registry within 10 days of moving into
Vermont.
When a sex offender
is released from prison, the Department of Public Safety must immediately give
the local police department information about the sex offender. The department
is also required to inform the local police of any changes of address.
If a person has
been designated by the court as a “sexually violent predator” that
person has even stricter reporting requirements. For example, that person has
to report to the Department of Corrections every 90 days following release.
A sex offender who fails to do any of the required reporting can be sentenced
for up to 2 years in prison and/or fined up to $1,000. If the person has been
found by a judge to be a sexually violent predator, the penalties are up to
3 years in prison and/or up to $5,000 in fines.
The information
maintained in the registry is confidential and can be disclosed only to:
• law enforcement agencies for lawful law enforcement purposes
• state and federal governmental agencies only for conducting confidential
background checks
• any employer who is authorized by law to request records and information
from the Vermont criminal information center, if this disclosure is necessary
to protect the public from this offender (but the identity of the victim of
a registered sexual offender cannot be released)
• the person registered as a sex offender, in order to review the accuracy
of the information relating to him or her (but, again, the identity of the victim
of a registered sexual offender cannot be released)
If the victim has asked to be notified and the disclosures are necessary to
protect the victim or the public from the offender, the Department of Public
Safety is required to inform the victim of:
• the initial registration of the sex offender
• any time the sex offender changes his/her address
Release of People Accused of a Violent Crime
It is important to know that after a person has been arrested or officially
charged with a crime, that person will usually be released on bail and/or placed
under certain restrictions which are imposed by the court. These are called
“conditions of release.” Only under extreme circumstances, as described
in the following section on “Bail” can a person be kept in jail without
bail.
Conditions of
Release
Courts impose “conditions of release” on alleged offenders in order
to insure that they will appear in court for future hearings and/or to protect
the public. The conditions of release must be reasonably related to the offense.
These can include restrictions on where the person can travel, who the person
can and cannot be in contact with, and where the person can live, etc. In cases
involving violence or harassment, the conditions of release may include an order
not to contact, harass or cause to be harassed the victim or potential witness.
If an alleged offender violates a condition of release, he or she can be charged
with an additional crime and it also might lead to a revocation of bail. (See
following section on Bail.)
Bail
A major area of concern for victims of sexual assault and other violent crimes
is what happens after a person is caught and charged with the crime. In 1994,
Vermont’s Constitution and laws were amended to allow the courts greater
power, under certain conditions, to hold people accused of particular crimes
without bail.
A judge can order
a person to be held without bail prior to trial if the person is accused of
any offense which is punishable by a life sentence (such as aggravated sexual
assault and kidnapping) and when the evidence of guilt is great.
The prosecutor
(usually the local State’s Attorney) is required to tell the court what
the victim or victim’s family’s position is on the question of bail.
A person can also
be held without bail while waiting for the trial if the person is accused of
a felony involving an act of violence against another person (e.g. sexual assault,
aggravated domestic assault, aggravated stalking), and if the court also finds
the following, after a hearing:
• that the evidence of guilt is great, and
• that there is clear and convincing evidence that releasing the person
would pose a substantial threat of physical violence to any person, and
• that no conditions of release will reasonably prevent the physical violence
If a judge orders a person held without bail prior to trial, the person can
have another hearing on bail decided by a single justice of the Vermont Supreme
Court. A decision to deny bail is reviewable by a panel of three justices of
the Vermont Supreme Court.
An offender can
also be ordered to be held without bail while waiting to be sentenced or during
the time the sentence is being appealed, regardless of the type of offense.
An offender who is on probation and violates his or her conditions of probation,
may also be held without bail.
Even if an alleged
offender has been released on bail, bail can be revoked if a Vermont superior
or district court judge or judicial officer finds that the alleged offender
has:
• intimidated or harassed a victim, potential witness, juror or judicial
officer in violation of a condition of release; or
• repeatedly violated conditions of release; or
• violated one or more conditions of release that constitute a threat to
the integrity of the judicial system; or
• failed to appear at a specified time and place ordered by a judge or
court clerk, without a very good excuse; or
• in violation of a condition of release, been charged with a felony or
a crime against a person for an offense similar to the underlying charge and
probable cause is found
Bail may not be revoked if the alleged offender only “contacts” the
victim. There must be proof that she was harassed or intimidated or that she
was afraid to testify as a result of the contact.
Sexual
Offenses
Sexual offenses are usually meant to include sexual assault, aggravated sexual
assault, and lewd and lascivious conduct.
Sexual Assault
(Penalty: up to 20 years in prison and/or a fine of up to $10,000)
Anyone can be a
victim of sexual assault, e.g. heterosexual women and men, lesbians and gays,
children, teenagers, people with disabilities and the elderly. While those who
commit sexual assault may be strangers to their victims, more often the offender
is someone the victim knows such as an acquaintance, date, partner, husband
or other family member.
Sexual assault,
also more commonly known as rape, is committed when a person engages in a sexual
act with another person 16 years of age or older and the sexual act is compelled
either:
• without the consent of the other person; or
• by threatening or coercing the other person; or
• by making the other person fearful she or someone else is about to suffer
bodily injury
The victim does not have to prove she physically resisted to show she did not
consent.
Sexual assault is also committed if the sexual act occurs after the attacker
gives the victim drugs without her knowledge or against her will, and these
drugs or intoxicants substantially impair her ability to know or control her
conduct.
Aggravated Sexual
Assault
(Penalty: up to life imprisonment and/or a fine of up to $50,000)
Sexual assault is considered to be “aggravated sexual assault” if
the sexual assault is committed under any one of the following circumstances:
• at the time of the sexual assault, the actor causes serious bodily injury
to the victim or to another
• the actor is joined or assisted by one or more persons in physically
restraining, assaulting or sexually assaulting the victim
• the actor commits the sexual act under circumstances which constitute
the crime of kidnapping
• the actor has previously been convicted in Vermont of the sexual assault
of an adult or aggravated sexual assault or has been convicted in any jurisdiction
in the United States or territories of an offense which would constitute the
same sort of sexual assault or aggravated sexual assault as in Vermont
• at the time of the sexual assault, the actor is armed with a deadly weapon
and uses or threatens to use the deadly weapon on the victim or on another
• at the time of the sexual assault, the actor threatens to cause imminent
serious bodily injury to the victim or to another and the victim reasonably
believes that the actor has the present ability to carry out the threat
• at the time of the sexual assault, the actor applies deadly force to
the victim (deadly force means physical force which a person uses with the intent
of causing, or which the person knows or should have known would create a substantial
risk of causing, death or serious bodily injury)
• the victim is subjected by the actor to repeated nonconsensual sexual
acts as part of the same occurrence or the victim is subjected to repeated nonconsensual
sexual acts as part of the actor’s common scheme and plan
Lewd or Lascivious Conduct
(Penalty: up to 5 years in prison and/or a fine of up to $300)
The crime of “lewd or lascivious conduct” refers to unwanted acts
that are committed with the intent to arouse, appeal to or gratify the lust,
passions or sexual desires of the alleged offender or of the victim. This could
include such things as exposing genitals, nonconsensual sexual touching, etc.
Getting Help
There are a number of “rape crisis centers” around Vermont that can
help women who have been sexually assaulted. (See Resources section at end of
book.) Usually women get assistance from rape crisis workers before, or at the
time, they become involved with the police, the prosecutor, the victim’s
advocate and the courts. (Also see section above on CrimeVictims’ Assistance,
Notification and Compensation on page 63.)
Stalking
(Penalty: up to two years in prison and/or a fine of up to $5,000)
The crime of “stalking” was added to Vermont law in 1993. A person
can be charged with stalking if he or she, for no legitimate reason:
• follows another person, or
• lies in wait, or
• harasses another person
and if this behavior causes the other person:
• to fear for her physical safety, or
• suffer substantial emotional distress
The stalking behavior must occur two or more times before it can be charged
and it must be of the sort that would make a reasonable person fear that she
might suffer unlawful sexual conduct, unlawful restraint, bodily injury or death.
If the stalking behavior is due to harassment, rather than following or lying
in wait, it could include verbal threats, written threats, vandalism or unwanted
physical contact.
Aggravated Stalking
(Penalty: up to five years in prison and/or a fine of up to $25,000)
A person can be charged with the even more serious crime of “aggravated
stalking” if the person intentionally stalks another person and:
• this violates a current court order prohibiting the person from stalking;
or
• this person has been convicted of stalking or aggravated stalking sometime
in the past; or
• this person has been convicted in the past of some other violent crime
against the person currently being stalked; or
• the person being stalked is under 16 years old
Kidnapping
(Penalty: up to life imprisonment and/or a fine of up to $50,000. However, if
the defendant voluntarily causes the release of the victim alive in a safe place
before being arraigned in court and without having caused serious bodily injury
to the victim, the penalty could be reduced to imprisonment for not more than
30 years and/or a fine of not more than $50,000.)
Kidnapping occurs
when a person knowingly restrains another person with the intent to:
• hold the restrained person for ransom or reward; or
• use the restrained person as a shield or hostage; or
• inflict bodily injury upon the restrained person or place the restrained
person or a third person in fear that any person will be subjected to bodily
injury; or
• sexually assault the restrained person or place the restrained person
or a third person in fear that any person will be sexually assaulted; or
• facilitate the committing of another crime or flight thereafter
The crime of kidnapping
can also occur if a person knowingly restrains a child under the age of 16,
who is not the person’s relative, with the intent to keep that child from
his or her lawful custodian for a substantial period of time without the permission
of the child’s guardian.
Hate
Crimes
Due to passage of the Hate Crimes Act in 1990, increased jail sentences and
fines can be given to anyone convicted of committing or attempting to commit
any crime which is maliciously motivated by the victim’s actual or perceived
race, color, religion, national origin, sex, sexual orientation, ancestry, age,
service in the armed forces or physical or mental disability. If there is evidence
that a person committed a particular crime against a woman because he hated
women, or hated lesbians, or hated people of color, it is possible that the
person could be charged with a hate crime in addition to being charged with
whatever the other crime is, e.g. assault, battery, homicide.
Violent
Career Criminals and Habitual Criminals
In 1995, Vermont created the category of “violent career criminals”
who can receive a more severe prison sentence of up to and including life imprisonment.
Violent career criminals are people who have been convicted of a serious violent
crime, if it is a felony, for the third time. If a person is sentenced as a
violent career criminal, the court cannot place the person on probation or suspend
their sentence. If the person is given a minimum sentence, he or she is not
eligible for early release or furlough until the entire minimum sentence has
been served.
Another category
for repeat offenders is the one for “habitual criminals.” If a person
has been convicted for three felonies, he or she may also be sentenced up to
life imprisonment if convicted of a fourth felony.
Civil
Actions for Crimes Against Women and Children
Women need to be aware that they can hire an attorney to bring a civil lawsuit
against their attacker or those responsible for their harm or injury. These
cases usually seek money damages and other forms of relief. They can be pursued
before, during or after the criminal case against the person has been brought
by a state or federal prosecutor. These cases may be subject to differing statutes
of limitation (i.e., the period of time during which the case usually has to
be brought), depending on the nature of the case.
In 1996, as part
of the Victim’s Bill of Rights, the protections of the Rape Shield law
were extended to the litigation of civil lawsuits coming out of a case of sexual
assault or some other form of wrongful sexual activity. In these cases, a court
must hear and decide whether to allow questions about a victim’s past sexual
conduct out of the sight and hearing of the jury.
If a person is entitled to bring a civil case as a result of childhood sexual
abuse, the statute of limitations does not run during any time that the person
is incapacitated from pursuing the case as a direct result of the damages caused
by the sexual abuse.
Abuse
of Elderly and Disabled Adults
Vermont law tries to protect elderly and disabled adults from abuse, neglect
and exploitation in two ways. One is by requiring certain people to report any
evidence of such violations. The other is by allowing elderly and disabled
adults, or an interested person on their behalf, to get a Relief from Abuse
Order from the court.
Mandatory Reporting
(Penalty for not reporting: can range from up to 18 months to 2 years and/or
up to $10,000)
The reporting portion
of the law was substantially amended in 1993, and now requires mandatory reporting
to the Vermont Department of Aging and Disabilities (See Resources chapter -
Aging) within 48 hours by anyone who is an:
• employee, contractor and grantee of the Vermont Agency of Human Services
who are involved in caregiving
• physician, osteopath, chiropractor, physician’s assistant
• nurse, certified nursing assistant, emergency medical services personnel,
medical examiner, dentist, psychologist
• school teacher, librarian, administrator, guidance counselor, aide, bus
driver or other school employee or contractor who works regularly with students
• mental health professional, social worker (except those operating under
the confidentiality provisions of the Older Americans Act), community mental
health center employee or contractor involved in caregiving, employee of an
adult day care center
• law enforcement officer
Mandatory reporting
is also required of a hospital, nursing home, residential care home, home health
agency, any entity providing paid nursing or nursing related services, intermediate
care facility for adults with mental retardation, therapeutic community residence,
group home, developmental home, school or contractor involved in caregiving,
operator or employee of any of these facilities or agencies.
Any other concerned
person may also file a report of suspected abuse, neglect or exploitation of
an elderly or disabled adult with the department.
Once the department
receives such a report, an investigation is required to be started within 48
hours.
In 1993, the rape
shield provisions in the law were expanded to also apply to elderly and disabled
victims of sexual assault or lewd or lascivious conduct. In addition, if the
lawyer for the defendant wants to use any evidence of the prior sexual conduct
of the victim, s/he has to file a written notice before trying to introduce
such evidence. The court then has to make a determination, out of the sight
and hearing of the jury or the public, whether or not to allow the evidence.
Relief from
Abuse Order
An elderly or disabled adult, or an “interested person” (e.g. a guardian,
or someone from the Vermont Department of Aging and Disabilities) can petition
the Vermont Family Court (See Resources chapter - Domestic Relations) in their
own county or the county to which they were required to move due to the abuse
or exploitation, for a Relief from Abuse or Exploitation Order. If the situation
is an emergency, the petition can be filed in any Vermont District, Superior
or Family court, in the person’s past or current county. No filing fee
is required in either situation. The courts have to set up a way for a person
to file a petition for an emergency order at any time, whether during or after
regular business hours, on weekends and holidays.
The petition can
ask for either or both of the following orders:
• that the abuser/exploiter stop abusing or exploiting the victim
• that the abuser/exploiter immediately move out of the house or apartment
“Abuse” includes:
• any treatment which places the elderly or disabled adult’s life,
health or welfare in jeopardy
• any conduct which intentionally or recklessly is likely to cause unnecessary
harm, pain or suffering
• unnecessary confinement or restraint
• any sexual activity by a caregiver
• any pattern of malicious behavior which results in harm to the emotional
well-being of the elderly or disabled adult
“Exploitation” means:
• intentionally using, withholding or disposing of funds or property of
the person without legal authority, for the wrongful profit or advantage of
another
• getting possession, control or an interest in the funds or property of
the person
• through the use of undue influence, harassment, duress or fraud
• forcing or compelling the person, against her/his will, to perform services
for the profit or advantage of another
• sexual activity with the person to which the person does not agree, is
incapable of resisting or agreeing to, or agrees to out of fear of retaliation
or hardship
The victim, or an interested person on behalf of the victim, can seek an emergency
Temporary Order without given advance notice to the alleged abuser/exploiter
if the court finds that:
• the victim has abused or exploited the person
• serious harm which cannot be repaired to the physical health or financial
interests of the person will result
If an interested person is the one filing for the Temporary Order, the court
will notify the elderly or disabled adult to find out whether the person is
capable of expressing him or herself and if the person wants to get the Order.
If a Temporary Order is issued, the alleged abuser will be notified of when
and where the case will be set for a Final Hearing, and the alleged abuser’s
right to petition the court for any change in the Order.
If there aren’t
grounds for issuing an emergency Temporary Order, the court will set a hearing.
The alleged abuser has to be given notice of the petition and when the hearing
will take place.
A violation of
any Relief from Abuse or Exploitation Order is a criminal act and can prosecuted
by the State’s Attorney’s office. If you believe the Order has been
violated you should call the police.
(Penalty for violation
of Order: up to six months in prison and/or a fine of $1,000)
It is important to know that a person aged 60 or older has the option of getting
a Relief from Abuse Order under the same rules and procedure as for domestic
abuse. In addition, the police can prosecute certain offenses as criminal domestic
assault. (See earlier sections on domestic abuse and criminal domestic assault.)
Relevant Laws
Vermont:
Abuse Prevention Act, 15 V.S.A. §1101, et seq.
Abuse Prevention for Elderly and Disabled Adults, 33 V.S.A. §6931, et seq.
Abuse Prevention Proceedings, Vermont Rules for Family Proceedings, Rules 4(n)
& 9
Bail, 13 V.S.A. §7551, et seq.
Child Abuse Reporting, 33 V.S.A. §4911, et seq.
Childhood Sexual Abuse (statute of limitations), 12 V.S.A. §560
Domestic Assaults, 13 V.S.A. §1041, et seq.
Hate Crimes Act, 13 V.S.A. §1454, et seq.
Kidnapping, 13 V.S.A. §2404, et seq.
Parole Board Hearing, 28 V.S.A. §507
Rape Shield, 13 V.S.A. §3255
Reports of Abuse, Neglect and Exploitation of Elderly and Disabled Adults, 33
V.S.A. §6901, et seq.
Restitution, 13 V.S.A. §7043
Sentencing, 13 V.S.A. §7006 (appearance by victim)
Sex Offender Registration, 13 V.S.A. §5401, et seq.
Sexual Assault, 13 V.S.A. §3251, et seq.
Vermont Constitution (Bail), Ch. II, §40
Vermont Rules of Criminal Procedure, Rule 15
Victims’ Assistance Program, 13 V.S.A. §5301, et seq.
Victims’ Compensation, 13 V.S.A. §5351, et seq.
Violations of Abuse Prevention Orders, 13 V.S.A. §1030
Violent Career Criminals, 13 V.S.A. §11a
Federal:
Violence Against Women Act, 18 U.S.C.A. §2261, et seq.
Wills
Too often,
people do not consider the important issues of whether to make a will, what
happens if there is no will, how to write a “living will” and to assign
a durable power of attorney for health care decisions.
This chapter will hopefully make these confusing issues, as well as the process
of “Probate Court,” more understandable.
Making a Will
A will is a written document that transfers your property, after your death,
to those whom you designate. If you want to make sure your property will pass
to the people you want to receive it,
then you should make a will. If you do not have a will, there are laws which
will decide who is entitled to your property after you die. (See subsection
on “Not Having a Will”)
In order to have a valid will under Vermont law, the following general conditions
must be met:
• the person making the will (referred to as “the testator”)
must be at least 18 years of age
• the person must be of sound mind
• the will must be in writing
• the will must be signed by the testator (it is also acceptable for another
person to sign the testator’s name if the testator expressly directs the
other person to do so)
• the testator’s signature must be witnessed by three or more competent
people who actually see the testator sign the will
• the witnesses must sign their own names underneath the testator’s
signature and they must do so in the presence of the testator and each other
Although it is not required by law to use an attorney, if you want to be sure
your will is valid and that your property will pass according to your wishes,
you may want to consult an attorney. Wills written in other states are recognized
in Vermont. Wills may be changed or canceled at any time.
It is important that your will include the following:
• naming a person in the will to carry out the directions in the will and
to take care of any estate matters (this person is referred to as “the
executor”)
• naming a guardian for your minor children (if you have any)
• ensuring that the people who you want to receive your property are properly
indicated (these people are known as “the beneficiaries”)
Keep in mind the importance of updating wills following marriages, divorces,
terminations of relationships, births, adoptions and deaths.
You have the right
to give away real property such as land (referred to as “devising property”)
and personal property such as money or other personal belongings (referred to
as “a bequest”), to anyone merely by naming that individual in the
will itself. It does not matter what, if any, your personal or familial relationship
is to that person. It is also important to note that children have no legal
right to inherit in Vermont if there is a valid will and they are not named
in it as beneficiaries. Some lawyers recommend that if you intend to exclude
your children or other immediate relatives from inheriting, you should include
a specific statement in your will that this is your intention. (But there are
some spousal rights that may not be taken away by a will.)
Not Having a
Will
If you do not have a will at the time of your death, your property will be distributed
according to Vermont law. Generally, if a person dies without a will, the property
will be passed on as follows:
• If you have a spouse and more than one child: one third goes to your
surviving spouse and two thirds is equally divided among your children
• If you have a spouse and only one child: one half goes to your surviving
spouse and one half to your child
• If you have a spouse and no children: your first $25,000 goes to your
surviving spouse plus one half of the remainder, and then the balance of your
estate is divided equally among your next of kin
• If you have no spouse and no children: the property is divided between
your father and mother; if you have no parents, then equally to your siblings;
if no siblings, then equally to your next of kin
If you are in an
unmarried domestic relationship, for example if you are in an unmarried lesbian
or heterosexual relationship, you should understand that if you do not have
a will your domestic partner will not have any right to property that is owned
exclusively by you at the time of your death.
Other Forms
of Property Distribution
Some of your property may be distributed after your death by a document or process
other than your will. This is referred to as property that “passes outside
the will.” It is possible for this property to be distributed with, or
without, a will. Some examples of property that might pass outside the will
include:
• Property that is “jointly” owned with another person, which
may pass on to the surviving joint owner, depending on the form of ownership.
(See chapter on Housing and Property Rights.)
• The dividends of life insurance policies are paid directly to the people
who are named as beneficiaries in the policy.
Property passed
outside of a will is not part of the “probate estate.” However, it
may be included in the estate for tax purposes.
Since the laws
of property ownership are complicated, it is recommended that you also have
a will. It is important to get good advice when drafting a will and estate plan
to prevent unnecessary complications in the future.
Probate Court
All property that does not pass directly to others (e.g. jointly owned property,
life insurance proceeds) is handled through a legal proceeding in Vermont Probate
Court. (See Resources chapter - Wills)
• The Court first determines if the deceased (the person who died) left
a valid will.
• The Court then determines whether an executor has been named in the will.
An executor may be an individual or a bank. The executor administers and distributes
the property in the estate according to law.
• If a person does not leave a will, or does not name an executor in the
will, the Court will appoint someone to take care of the estate. This court
appointed person has the same duties as an executor but is called an administrator.
The surviving spouse has 30 days to apply to the Court for appointment as an
administrator. After 30 days, anyone may ask the Court to be the administrator,
including people to whom the deceased owed money.
The executor or
administrator has many duties and responsibilities. These may include having
to:
• collect and protect the assets of the estate
• employ an attorney where advisable to assist with the legal management
• collect all income and debts, notes or other claims due the deceased
• complete any pending lawsuits in which the deceased was involved
• carry on the business of the deceased
• determine the heirs and next of kin
• prepare and file with the Court a list of the estate assets, and if necessary
hire qualified appraisers to establish fair market value
• prepare and file all state and federal estate and personal income tax
and other taxes
• pay valid claims of creditors
• sell property if necessary with Court authorization to raise money to
pay claims of creditors as well as taxes and legal fees
• prepare an accounting to the Court
• distribute remaining assets to proper individuals or institutions
During the settlement
period, the Probate Court may take money from the estate to help the surviving
spouse and minor children while any legal issues about the estate are being
finalized.
The surviving spouse
has certain rights that cannot be taken away by a will. Even if the surviving
spouse has not been named as a beneficiary in the will, that spouse is entitled
to between one-third to one-half of any real estate which was solely owned by
the other spouse, as well as the right to certain personal property.
The vast majority
of the work involved in settlement of estates is usually completed in nine months.
Unusual complications may delay the final settlement of an estate.
When disputes arise,
or if there is a question about the proper meaning of a document or the identity
of a person, a hearing may be scheduled by the Probate Court. At the hearing,
the Court will hear testimony and, after consideration, issue its decision.
The probate laws
of Vermont are simplified for estates with a value less than $10,000 and where
there is a surviving spouse and/or minor children and no real estate.
To assure safekeeping
you can deposit your will with the Registrar of the Probate Court in the district
in which you reside for a fee of $10.00. The will is kept there in the strictest
confidence.
Durable Power
of Attorney for Health Care
Under Vermont law, you have the ability to give someone the authority to make
any and all health care decisions for you when you are not capable of making
them for yourself. This is called giving someone your “durable power of
attorney” for health care decisions.
Vermont law provides
a form that you can use to create this durable power of attorney for health
care. (See Resources chapter - Wills) In the form, you can name the person you
want to be your agent or alternate agent. The form can also be used to describe
any treatment you do not wish to receive and any treatment you want to be sure
you receive. It is also possible that you may choose to use the form just to
name your agent and then make your wishes known to your agent orally, rather
than describing them in a durable power of attorney form or in a “living
will” (also known in Vermont law as a “terminal care document”
- see following section).
The person to whom
you give your durable power of attorney for health care will have the authority
to make health care decisions for you after your doctor certifies that you lack
the capacity to make your own decisions. This person is obligated to follow
your instructions (given by you either orally or in writing in the form) when
making decisions on your behalf. Some of these decisions could include:
• consenting, refusing to consent to, or withdrawing consent to particular
forms of medical care, treatment, service or procedure (e.g. artificial nutrition
and hydration, experimental treatments)
• withdrawing life-sustaining treatment
• withholding life-sustaining treatment
The durable power of attorney is only valid if:
• the person you appoint is at least 18 years old
• the form is signed in the presence of two or more qualified witnesses
who see you sign or acknowledge your signature
• the witnesses also sign the form
The law does not allow you to assign your durable power of attorney to your
doctor or to anyone who is an employee of a home health agency, hospital, nursing
home or residential care home (other than a relative). Therefore, you must choose
someone else to be your agent.
Certain people
cannot act as witnesses, such as the person to whom you are giving your durable
power of attorney, your spouse, your health or residential care provider or
any of his or her employees, your lawful heirs or beneficiaries named in your
will or deed, or any creditors or persons who have a claim against you.
You have the right
to revoke the authority granted to your agent by informing him or her or your
health care provider orally or in writing. If you tell your health or residential
care provider that you have revoked your durable power of attorney, that provider
must immediately record the revocation in your medical record and notify the
revoked agent, the doctor and the staff responsible for the person’s care.
You can only change
your stated wishes in the durable power of attorney, except for the naming of
your agent, by making out an entirely new form. You cannot change or modify
an existing one once you have signed it, unless you make out a new one.
While you have
the right to create a durable power of attorney for health care decisions, you
cannot be forced to have one for any reason.
Living Wills
In addition to the right to create a durable power of attorney for health care
decisions (see above section), Vermont law also lets you create a terminal care
document (also known as a living will). Vermont law provides a standard form
which can be
used to create
this document. (See Resources chapter - Wills)
This living will lets you state your wishes, while you are still able to do
so, to be allowed to die a natural death and not have your life prolonged by
extraordinary measures, if you are in a terminal medical condition and there
is no reasonable expectation that life can be continued with dignity and without
pain. You can also include other specific directions about when and under what
conditions your instructions are to be carried out, to the extent permitted
by law.
The living will
is valid only if it is signed in the presence of two or more qualified witnesses.
The people who are not qualified to be witnesses include:
• your attending physician or the person acting under the direction or
control of the attending physician
• your spouse
• your lawful heirs or beneficiaries named in your will or deed
• creditors or persons who have a claim against you
You also have the right to revoke a living will either:
• orally, in the presence of two or more witnesses (at least one of which
is not your spouse or a relative), or
• by burning, tearing or obliterating the will, or by causing that to be
done by another person at your direction and in your presence
Relevant Laws
Vermont:
Durable Power of Attorney for Health Care, 14 V.S.A. §3451, et seq.
Terminal Care Document (a/k/a Living Will), 18 V.S.A. §5251, et seq.
Wills & Estates, 14 V.S.A. Chapters 1 - 121
Resources
(Advocacy and Service Providers & Organizations)
Top
Back
to Publications Page
|