Divorce Urban Legends
Priscilla Dube • December 14, 2022

The Urban Legend #1:


Minors choosing where they can live.


One of the most widely circulated urban legends that I encounter in the practice of divorce law is that there is an age at which children can legally choose the parent with whom they will reside. I have heard ages 12, 14 and 16 regularly. In fact, there is no age at which a minor has a legal right to choose. Once a child reaches the age of 18 he or she is no longer a child and therefore, at that time, has a choice


The commonly accepted adage from many practitioners and judges is that children “vote with their feet”, meaning that they will ultimately make things happen by sheer force of will. While this may occur in some cases, it is not an ideal situation in that it puts the child squarely in the middle and can be emotionally damaging or overly empowering, neither of which is good for a child. 


Urban Legend #2:


Spousal Support does not automatically terminate if the receiving spouse remarries.


This legend is based on accurate historical information that is no longer true. Spousal Maintenance, formerly called Alimony, used to terminate upon the remarriage and sometimes even upon the cohabitation of the receiving spouse. Case law in Vermont changed that. While it is possible, although more and more unusual, to put a termination clause in a Marital Settlement Agreement, the courts now consider modifications or terminations of spousal support based on whether or not the financial circumstances of the receiving party have significantly improved due to the remarriage. Remarriage to a multi-millionaire might be a sufficient basis on which to reduce or terminate support.


Remarriage to a person with no means or average means may not change the receiving party’s financial circumstance in any meaningful way and therefore will not form the basis for a modification. There is also the issue of “compensatory spousal support” which does not exist by stature but has appeared in case law. Compensatory spousal support is meant to make up for the contributions of the spouse to the marriage and is not to be modified if the spouse remarries.


Urban Legend #3:


Leaving the marital residence is not abandonment.


The end of a marriage is an emotional time. People often wish to separate to ease tensions and to allow both spouses to adapt to the idea that their lives are changing. I am regularly asked at initial consultation about the concept of abandonment because people are told that if they leave the residence they have given up their rights. According to Black’s Law Dictionary, abandonment is a legal term meaning “[t ]he surrender, relinquishment, disclaimer, or cession of property or rights.”  If one spouse leaves the marital residence and establishes a new residence elsewhere, he or she has not abandoned the residence for purposes of having a claim for a share of the equity or items of property inside. He or she has merely made an understandable accommodation to benefit both parties.



Having said that, the person who leaves the residence has a decidedly weaker claim to actually get the residence in a divorce so, if the understanding is that one person will leave for a short time and then resume residency, either exclusively or with the other spouse, the Agreement must be in writing and clearly articulated. While a person may not have legally abandoned the property, possession is still nine tenths of the law and the ramifications of leaving may be long term and unanticipated. If ultimate possession of the property is the goal, then leaving may not be abandoning, but it may still be ill-advised.

Avoiding an Adult Guardianship: How to Protect Yourself and Your Loved Ones

December 11, 2023
In life, we often plan for the expected and the unexpected. Yet, when it comes to addressing potential incapacity in adulthood, many individuals and families are unprepared. Although adult guardianship may be presented as an option for helping a loved one who is unable to make health, financial, or personal care decisions on their own, it can be an expensive, intrusive, and slow process that may not align with your wishes or timeline. At Bergeron, Paradis & Fitzpatrick, we believe in empowering our clients to plan for the future while avoiding the need for adult guardianship whenever possible. Read on to discover why avoiding adult guardianship is a prudent choice and discuss alternative ways of planning for incapacity. The Downsides of Adult Guardianship Expense and Intrusiveness One of the primary reasons to avoid adult guardianship is the financial burden it can impose. The process involves court fees, legal expenses, and ongoing oversight, which can quickly add up. Prior to the establishment of guardianship, the person in need of protection must undergo an intrusive evaluation by a court-appointed evaluator. Furthermore, it can be emotionally taxing, as it involves the court appointing a guardian to make decisions for an incapacitated individual. These decisions may not align with your preferences and values, or the preferences and values of your loved one. Delays in Receiving Support Adult guardianship is a time-consuming legal process that can result in significant delays in obtaining necessary support and care for you or your loved one. While awaiting court decisions, the individual for whom guardianship is being sought may be left without the assistance they so urgently need. This is especially critical in situations where immediate medical or financial decisions are required. Loss of Autonomy Avoiding an adult guardianship is not only about saving time and money; it's about maintaining autonomy and ensuring that the individual’s needs are met promptly and in alignment with their wishes. Alternative Ways to Plan for Incapacity Planning for incapacity is a crucial aspect of estate planning that can help you and your loved ones avoid the complexities and expenses associated with adult guardianship. It provides peace of mind and ensures that your wishes are respected. Advance Directives Advance directives, such as living wills and healthcare proxies, allow individuals to express their medical wishes and appoint a trusted agent to make healthcare decisions on their behalf. These documents ensure that medical care aligns with your preferences, eliminating the need for guardianship in healthcare matters. Durable Powers of Attorney Durable powers of attorney grant someone you trust (an agent) the authority to manage financial and legal affairs on your behalf if you become incapacitated. This provides a seamless transition of decision-making and eliminates the need for a court-appointed guardian to manage your finances. Revocable Trusts A revocable trust allows you to transfer assets into a trust while maintaining control over them during your lifetime. In the event of incapacity, the successor trustee you've appointed can manage and distribute assets according to your instructions. This can avoid the need for a guardian to handle financial matters. Contact a Vermont Estate Planning Law Firm Today At Bergeron, Paradis & Fitzpatrick, we specialize in estate planning and can help you create a comprehensive plan tailored to your unique circumstances. Our experienced attorneys can guide you through the process of establishing advance directives, durable powers of attorney, and revocable trusts to protect your loved ones and your assets. The dedicated team of legal professionals at Bergeron, Paradis & Fitzpatrick is here to provide you with the guidance and support you need. Contact us today to schedule a consultation and start building a plan that puts your family's well-being first. Your peace of mind is our priority.

Common Legal Issues in Real Estate

March 15, 2023
Real estate transactions are complex and typically involve substantial sums of money. As such, they are fertile ground for a variety of legal issues, from contract disputes to title issues. Anytime you are dealing with an investment of this size, it’s in your best interest to seek legal counsel. Whether you’re buying or selling, an unexpected legal matter can easily derail your plans and cost you significant time, money, and resources. Although most real estate legal issues can occur in any type of real estate transaction and in any location across the country, some potential legal hurdles are unique to Vermont. Below we discuss some of the most common legal issues in real estate in Vermont and nationwide. Real Estate Legal Issues That Can Occur Anywhere in the U.S. Let’s start by addressing common legal issues that can arise in real estate transactions anywhere in the country. Property disputes: This can occur when there is a disagreement over the ownership or boundaries of a property. Property disputes can arise due to boundary encroachment, easement disputes, or competing claims to the property. Non-disclosure: This occurs when a seller fails to disclose a known defect in the property to the buyer. Failure to disclose can result in a breach of contract or fraud. Zoning and land use regulations: Local zoning laws regulate how property can be used and developed. Violations of zoning regulations can lead to legal disputes, fines, and even property seizure. Title issues: Title issues arise when there is a problem with the ownership history of a property. Common title issues include liens, judgments, and easements that can affect the transfer of ownership. Contract disputes: Disputes may arise when there is a disagreement over the terms of a real estate contract. For example, a buyer may back out of a deal due to a disagreement over repairs or financing. Environmental issues: Environmental concerns can arise when there is a contamination or other hazardous material on a property. This can lead to legal issues and liability for the property owner. Foreclosure and bankruptcy: Foreclosure occurs when a property owner defaults on a mortgage loan. Bankruptcy can also impact real estate transactions and ownership rights. It is important to work with an experienced VT real estate attorney to navigate these legal issues and protect your rights as a buyer or seller. Real Estate Legal Issues Unique to Vermont The above legal matters can occur in any state and locality, but the issues below are unique to — or particularly common in — the state of Vermont. Land use regulations: Vermont has strict land use regulations, including Act 250, which regulates development projects that meet certain size or environmental criteria. Additionally, Vermont's "smart growth" laws aim to encourage development in designated downtown areas and discourage development in rural areas. Environmental concerns: Vermont is known for its natural beauty and environmental consciousness, and environmental issues are an important consideration in real estate transactions. For example, properties may need to be tested for radon gas, which is common in the state. Property taxes: Vermont has relatively high property taxes compared to other states, and the state's property tax system can be complex. For example, properties are assessed at their "fair market value," which can be subject to interpretation. Homeowner associations: Vermont has laws governing homeowner associations (HOAs), which are common in many real estate developments. These laws outline the rights and responsibilities of HOAs and their members, and can be complex. Foreclosure laws: Vermont has specific laws governing foreclosure proceedings, including a requirement for mediation before foreclosure can proceed. Property disclosure requirements: Vermont requires sellers to disclose certain information about their property to potential buyers, such as the presence of lead-based paint, underground storage tanks, and other environmental hazards. Anyone considering buying or selling property in Vermont should consult with a qualified real estate attorney to ensure compliance with all relevant laws and regulations. Contact a Vermont Real Estate Attorney Today If you are involved in any type of real estate transaction, the skilled legal team at Bergeron, Paradis & Fitzpatrick can help. Contact us today for a confidential consultation about your case.
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