EATON, J. Husband appeals from a final divorce order, arguing that the family division of the superior court failed to consider the relevant statutory factors before incorporating the parties' pretrial separation agreement into the divorce order. We reverse and remand.
The family court found that “subsequent events and [husband’s] current financial circumstances have made it difficult, if not impossible, for [husband] to currently comply with that $4000 per month obligation, but the agreement appears to have been mutually arrived at and was fair, reasonable and appropriate at the time” it was executed. The court concluded that the agreement is valid and enforceable, and that it would “not perform a separate or independent analysis under 15 V.S.A. § 752, and [would] not specifically consider the respective factors."
Husband contends that the court abused its discretion by adopting the separation agreement without considering its fairness in light of the statutory factors contained in 15 V.S.A. § 752 for awarding maintenance. According to husband, the family court’s express decision not to conduct a statutory analysis resulted in the court failing to consider his inability to pay the maintenance obligation contained in the separation agreement.
Husband relies on Pouech v. Pouech, 2006 VT 40, 180 Vt. 1, 904 A.2d 70 where we concluded under the circumstances of that case that “the court should have given the parties an opportunity to present evidence on the fairness of their stipulation,” after which “the court had the discretion to reject the stipulation on grounds that it was inequitable in light of the relevant statutory factors.”
We agree with husband that the family court failed to exercise its discretion to determine whether the parties’ agreement was fair and equitable pursuant to the relevant statutory factors at the time of the final hearing. Accordingly, we remand the matter to the family court to make a determination based on the relevant statutory factors as to whether the parties’ agreement should be incorporated into the final divorce order.
Husband relies on Pouech v. Pouech, 2006 VT 40, 180 Vt. 1, 904 A.2d 70 where we concluded under the circumstances of that case that “the court should have given the parties an opportunity to present evidence on the fairness of their stipulation,” after which “the court had the discretion to reject the stipulation on grounds that it was inequitable in light of the relevant statutory factors.”
We agree with husband that the family court failed to exercise its discretion to determine whether the parties’ agreement was fair and equitable pursuant to the relevant statutory factors at the time of the final hearing. Accordingly, we remand the matter to the family court to make a determination based on the relevant statutory factors as to whether the parties’ agreement should be incorporated into the final divorce order.
The superior court’s decree of divorce is affirmed; however, its maintenance award, property division, and judgment of arrears are reversed.
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