Abusive Litigation

1.  File

File a petition or motion in the civil, family, or probate court division of the court in which the litigation is alleged to be abusive has been brought. There is no filing fee to make the request. You can use the Petition or Motion to Restrict Abusive Litigation form (600-00040) found in the Forms section at the bottom of this web page.

2.  Serve (or arrange for service)

You must deliver a copy to (serve) the other party or their attorney, if they have one. If you are concerned about having contact with the other party, or if there is a court order prohibiting contact with the other party, you can ask the court to handle service.

3.  Response

The other party has an opportunity to respond to the request. They must file a written response with the court by the deadline.

4.  Hearing

The court may schedule a hearing. At the hearing, the person asking for the order must provide evidence of abusive litigation, which is described in the Proof of Abusive Litigation section below.

The judge will decide whether the other party is engaging in abusive litigation, described in the Abusive Litigation section below.

5.  Court decision

If the judge decides the other party is engaging in abusive litigation, they can impose restrictions on their ability to file, as described in the Pre-Filing Restriction section below.

Text of the law: Act 48 (2023), 15 V.S.A. §§ 1181-1185.

The court must find the party you're seeking an order against:

• is your current or former family or household member, or
• was found by a court to have abused, stalked or sexually assaulted you, or
• both of the above.

A household member includes:

• Someone you live with or used to live with.
• Someone you are in a sexual relationship with, or used to be in a sexual relationship with.
• Someone you are dating or used to date.

A court determination the other party abused, stalked or sexually assaulted you must have been as part of one of these kinds of cases:

• A final abuse prevention order in a relief from abuse case (15 VSA § 1101 et seq.).
• A final stalking prevention order (12 VSA § 5131 et seq.).
• A final sexual assault prevention order (12 VSA § 5131 et seq.).
• A final abuse prevention order from another U.S. state, the District of Columbia, Puerto Rico, a U.S. territory, or a federally recognized Indian tribe. 
• An order which is part of conditions of parent-child contact in cases involving domestic violence (15 VSA § 665a).
• Conviction for domestic assault (13 VSA § 1041 et seq.).
• Conviction for stalking (13 VSA § 1061 et seq.).
• Conviction for sexual assault (13 VSA § 3251 et seq.).
• A court determination of probable cause for a charge of domestic assault in which the court imposed criminal conditions of release pertaining to your safety.

Litigation is defined as abusive if it's

• started,
• moved ahead, or
• continued

primarily for the purpose of

• abusing,
• harassing,
• intimidating,
• threatening, or
• maintaining contact with the person asking for the order.

General categories include:

Claims have no legal basis

The other party's claims, allegations, or other legal contentions are not warranted by:

• existing law, or
• a reasonable argument for the extension, modification, or reversal of existing law, or the establishment of new law.

 

Claims not supported by evidence

The other other party's claims are:

• without adequate evidentiary support, or
• unlikely to have evidentiary support after a reasonable opportunity for further investigation.

 

Claims already decided

An issue or the issues that are the basis of the filing:

• have previously been filed in one or more other courts or jurisdictions, and
• the actions have been litigated and disposed of unfavorably to the other party.

There are several ways to prove litigation is abusive.

Same issues previously litigated

You are able to show the court the same or substantially similar issues between you and the other party have been litigated within the past five years in any court. 

Same issues already decided

You are able to show the court the same or substantially similar issues between you and the other party have been raised in the past five years and have been decided or dismissed.

Party previously sanctioned

You are able to show that within the last 10 years, the other party has been sanctioned by a court for filings which were found to be frivolous, vexatious, intransigent, or brought in bad faith in cases involving you.

Pre-filing restriction

You are able to show a court has determined other party has previously engaged in abusive litigation or similar conduct and has been subject to a court order imposing prefiling restrictions.

If the court decides the litigation is abusive, it can do one or more of these things:

• Dismiss, deny, or strike the litigation with prejudice. "With prejudice" means the party can't file that same litigation again.
• Impose pre-filing restrictions on the other party to prevent them from filing litigation against you and your dependents.
• Award attorney’s fees and costs of responding to the abusive litigation, including the cost of seeking the order restricting abusive litigation.

If an order restricting filings (pre-filing restriction) is made against the other party, they may not file, start, move forward, or continue any litigation against the person protected by the order unless they have the court's permission.

The request for permission must be made in writing. It must explain to the court why the request to start a new case or file something in an existing case is reasonable and legitimate. You can use the Application for Permission to File by Person Subject to Filing Restriction form (600-00041) found in the Forms section at the bottom of this web page. The proposed litigation must be filed with the application.

A judge will review the request. They will make a decision based on the information in the written request, or may decide to schedule a hearing.

• If the court orders a hearing, the court will notify the person protected by the order that they have the right to participate.
• The hearing notice will say whether the person protected by the order must submit a written response.

If the proposed litigation is not allowed

If the judge decides the proposed litigation would be abusive, they will deny the application.

The person protected by the order does not have to respond to the litigation or participate in any way. They may respond by filing a copy of the order restricting abusive litigation with the court.

If the party subject to filing restrictions disregards the order and files the litigation anyway, the court can take action against them for violating a court order. The court could find them in contempt, which can bring punishments including fines and jail time.

If the party subject to filing restrictions believes the judge made a legal mistake in denying them permission to file, they may file an appeal.

If the proposed litigation is allowed

If the judge decides the proposed litigation isn't abusive, they may allow the litigation to be filed.

The documents served on the protected party must include a copy of the judge's order granting permission to file.

If any judge later determines the filing party is trying to add parties or issues, or amending the pleadings in a way which constitutes abusive litigation, that judge may stay (pause) the case and refer the matter back to the judicial officer who granted the application to file.