I was honored to be invited to speak at the American Academy of Matrimonial Lawyers (AAML) Florida Chapter’s 45th Institute on Family Law on the topic of trusts and divorce. I spoke with co-presenters: AAML Fellow, J.J. Dahl, and estate and trust attorneys, S. Dresden Brunner, and Sarah Butters. The AAML Institute is the premier, advanced continuing education opportunity for family law in Florida.

Trust Basics

Divorces typically involve the equitable distribution of marital property, the payment of spousal support, maintenance and alimony to a spouse, and child support for the children. Worryingly, trusts have increasingly become a problem in divorce proceedings.

Estate planners love to use acronyms to describe their estate planning tools: ILIT, QTIP, QPRT, SLAT, and of course, APT (asset protection trusts). An asset protection trust is just that, a trust designed to protect a donor-spouse’s assets from creditors, while still allowing some discretionary access to the assets for the donor.

By design, APTs don’t allow the donor-spouse to have complete access to the funds, and decision making about paying distributions is usually in the hands of an independent trustee.

Florida does not permit asset protection trusts. However, Florida residents create them in other states, most notably Nevada, and even in other countries.

Trusts can raise several issues when divorcing. Some types of trusts are created by third party grantors, while others are self-settled trusts. In divorces, one of the two spouses is the beneficiary, and may have other roles. The assets in third party trusts belong to the trust, not the spouse. These types of trusts are not usually subject to equitable distribution, but the income may be calculated for determining support. There is also the possibility that assets may be subjected to attachment by the court.

Trusts may be revocable and irrevocable. Irrevocable trusts are generally created by one of the spouses and may be marital unless solely separate funds were used to fund it. A key distinction of revocable trusts is that the grantor keeps control over the assets, and in a divorce, a court can order trust assets to be distributed.

Untrustworthy

Irrevocable trusts are not themselves marital assets subject to distribution, even if a spouse intentionally funds it with marital property. Trusts are governed by the probate code, and there is no corresponding ability to ‘pierce the veil’ in trust law as there is for corporations.

Trusts may also be an obstacle when trying to recover unpaid alimony and child support. This is where the different public policies supporting probate law and family law clash. People create trusts legally, for the purpose of protecting property and income for the beneficiary. Some trusts are created to protect beneficiaries from themselves. During a divorce, Family law seeks an equitable distribution of marital assets, not asset protection.

Trusts typically have spendthrift clauses to protect beneficiaries. A spendthrift clause prevents a creditor who is owed money by a beneficiary from forcing the trustee to pay over the beneficiary’s share of the trust.

In essence, as long as the trust assets are still held by the trustee, they are out of reach of the creditor. If not for spendthrift clauses, trust beneficiaries who owe creditors money could see their trust benefits attached by a court when trust funds are distributed.

Spendthrift clauses, which are an essential part of trusts, can be a huge problem in divorce. Former spouses may be owed alimony and child support by a trust beneficiary. In those cases, former spouses are considered creditors of the beneficiary who is obligated to pay. When alimony and child support are owed by a trust beneficiary, many factors will impact whether a court will be able to order alimony and child support to be paid from trust assets.

More about the AAML Florida Chapter and the Institute is available here