Wednesday, August 14, 2002

A story published today by the Times Argus reports that a plan to let Vermont family court judges freeze the assets of married couples immediately when one of them files for divorce has drawn the ire of at least one legislator.

At a meeting last week of the joint Judicial Rules Committee, Rep. Duncan Kilmartin, R-Newport City, criticized the proposal as a violation of constitutional due process guarantees.

He said it could lead to people having their right to sell or use property stripped from them without ever having a chance to appear in court to contest it.

The rule change is one of several being proposed by the Vermont Supreme Court’s Family Rules Committee, an ad hoc group that seeks to improve the operations of family courts.

Committee member Thomas Devine, a family court magistrate in Chittenden County who presented the proposal to the legislative committee, said it was simply a way to prevent one spouse from taking action against the other in the time between filing for divorce and the first court appearance.

Sometimes, he said, a vindictive husband or wife would clean out bank accounts, cancel their partner’s health insurance, or shut off utilities to the family home if they’re no longer living there.

"It’s essentially a way of preserving order until a case can be properly heard," Devine said of the plan to allow judges to issue "interim domestic orders."

Another change would let judges appoint an expert — called a special master in divorce cases — to determine the value of assets and, with the agreement of both spouses, to decide how they should be divided.

Kilmartin had reservations about that rule, too, saying it would make the process extremely difficult for those who want to represent themselves.

He said the proposal letting judges freeze assets without a hearing was an example of "judicial hubris."

"The most basic concept of due process is you don’t interfere with a person’s liberty or property without a hearing," he said.

But other committee members disagreed. Rep. Maxine Grad, D-Moretown, said the rules would improve family court and help protect children.

And some lawyers who have been practicing under the experimental rules said they had not proved problematic.

"The interim order serves to freeze the status quo," said Barre attorney Richard Rubin. "It just prevents someone from acting either maliciously or inadvertently to grab an advantage early on in the case."

And he said Kilmartin’s fears that transactions like selling a home or car would be improperly held up were unfounded.

"If the interim order issues, and you’re about to pay for your kid’s college tuition, you just go to the court and say ‘We’ve agreed to pay for Johnny’s tuition,’" Rubin said. "And the court’s will do that, they’ll say yes or no."

The Family Rules Committee will now consider the comments of the Judicial Rules Committee before it submits the new rules back to that body for final approval.