Without trying to jinx anything I thought I’d do a quick
wrap up even though “it ain’t over ‘til it’s over”. Word is split around town
as to whether the session is likely to end tomorrow; it seems to be trending
against a Saturday adjournment. But here’s where the bills the VBA has been
following are. As you know, H.431, the foreclosure mediation bill has been
signed and is now Act 8. The new foreclosure process will begin December 1st
. Because it will be an “opt in” process both the House and the Senate
passed versions of the budget contain money for Home Ownership Centers (HOCs) to
do outreach and counseling of homeowners. Also, Vermont Legal Aid is slated to
receive $75,000 to be used in foreclosure defense. That money and the $125,000
to the HOCs came from a settlement reached by the AG with a loan processor,
which paid the state $371,000.
Last night the House concurred with a proposal of amendment
from the Senate on S. 31, the “Billings” bill. So that’s now on its way to the
governor for signature. Here’s the language, effective July 1st:
S.31
An act relating to
prohibiting a court from consideration of interests in
revocable trusts or wills
when making a property settlement in a divorce
proceeding
It is hereby enacted by
the General Assembly of the State of Vermont:
Sec. 1. 15 V.S.A. § 751 is
amended to read:
§ 751. PROPERTY SETTLEMENT
* * *
(c)(1) Notwithstanding any
provision of subsection (b) of this section to the
contrary, in making a
property settlement the court shall not consider the
parties’ interests in revocable
estate planning instruments, including interests
that pass at death by
operation of law or by contract, unless the interest is
vested and not capable of
modification or divestment.
(2) This subsection shall
not apply to estate planning instruments
created by the parties of
the divorce proceeding.
(3) A person shall not
cause marital property to be placed in an estate
planning instrument for
the purpose of excluding it from a property settlement.
A court may order a party
to produce evidence related to an estate planning
instrument if it appears
that marital property may be included in the
instrument.
(4) A person who is not
party to the divorce may be subjected to
discovery or compelled to
testify on the subject of his or her own last will and
testament, on any
revocable trust of which he or she is settlor or, in
conjunction with any of
these instruments, on his or her assets if the court finds
that a party has
fraudulently represented his or her opportunity to acquire
capital assets and income
in the future.
(5) The court may impose
all applicable sanctions, including an award
of attorney’s fees, upon
finding that a party fraudulently represented his or her
opportunity to acquire
capital assets and income in the future pursuant to this
section.
Sec. 2. EFFECTIVE DATE
This act shall take effect on July 1, 2013.
Other bills we followed include S.7, which has been amended
to include “bad faith claims of patent infringement”. That language (section 2
of the bill) was added in the House and the bill is on the Senate calendar
today. However, the Senate has already added similar language to another bill
(H.299) and sent it over to the House. In one vehicle or the other, that section will
become law.
We followed S. 119, a bill that would establish a panel to
rule on amending perpetual conservation easements. The bill took too much time
moving through the process on the Senate side to allow the House to complete
its work. As of right now the bill remains in the House Committee on Natural
Resources and will be acted upon in 2014. The additions to the bill by the
Senate, both a fee to seek an amendment and the appropriation for the panel members,
necessitated stops in Senate Finance and Senate Appropriations, after having
left Senate Natural and Senate Agriculture. The same steps need to be taken on
the House side and, regardless of the date of adjournment, there is not enough
time to do what needs to be done.
The lakeshore protection bill is spending the summer and
fall in the Senate Natural Resources Committee as members felt that the public
needed more opportunities to speak to it. Accordingly, they are scheduling
public hearings throughout the state before retuning next year to complete work
on the bill.
Other bills that moved from the House to the Senate but
moved so late in the session that they will likely not see action are H.441,
changing some provisions of UCIOA, and H. 483, revisions to UCC Article 9. Both
bills are sitting in the Senate Rules Committee awaiting “being sprung”. I’m
not sure that’s going to happen right away but, you never know!
Another bill of interest to many is H.523, a judiciary “omnibus
bill”. It contains a number of provisions that would affect practitioners. It contains
language about the availability of jury questionnaires. It modifies a minor
provision on the UCCJEA. It addresses an issue that has arisen in family division.
It would allow the court to require the payment of the full filing fee IF a
stipulation is not acceptable to the court or if the matter becomes a contested
matter. It also clears up the fee for filing motions in family division, making
it clear that there is no fee for pre judgment motions. Recently, some units
began requesting a fee while others believed the fee was for post judgment
motions only.
But wait, there’s more. In fact, this bill began life as H.
1 and was maybe two paragraphs long. Well, now it covers creating a fee for a
motion for expungement of a criminal record; amends the attorney licensing special
fund; adds what was S.1, requiring courts to consider the financial costs of
sentencing alternatives; added a completely new section on abused animals; adds
language on automated license plate readers; creates a position of chief deputy
states’ attorney in larger offices; adds immunity for volunteer athletic coaches;
and finally, (at least I think that’s all there is) permits assistant judges to
sit with magistrates during child support contempt proceedings! I know that
many of you expressed concern about this and I’ve certainly shared your
concerns. But here’s where we are. Very little of all this was in the House
passed version. The bill won’t go back to the House until later today at the
earliest. It’s very likely the bill will summer in the House Judiciary
Committee. That’s both good and bad. There are some useful parts of bill that
we want. But, I don’t see it passing with all this new language added.
Finally, although the budget conferees are continuing to
meet, I am hoping that the small bump in Vermont Legal Aid funding that both
the House and Senate passed versions contain will stay in the final agreement. If
it does, it will be the first increase for VLA in about six years; that
includes any COLAs. They’ve seen no change in their funding for all that time. Fingers
crossed. VLA needs the bump given the Vermont Bar Foundation’s funding cut due
to weak IOLTA receipts.
I’ll update as soon as there is anything new to report; but,
as always, thanks for reading.
