Dividing Trusts in a Divorce
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In Florida, the Trust Code and existing case law leave much uncertainty in regards to the division of trusts in a divorce. However, Florida's status as a "marital property" state means that any assets that are acquired by gift, devise, or descent will be excluded from division.
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When Assets Are Placed in a Trust Before Marriage
In instances where the trust was established prior to the marriage, or if one spouse is named a beneficiary of a family trust, for example, these assets will generally not be affected by divorce. This means that the other spouse is not entitled to any share of these assets, and in most cases they cannot be used to lessen the amount of alimony owed.
When Both Spouses Are Beneficiaries
If a trust is formed during a marriage, and names both spouses as beneficiaries, the assets contained within will be considered marital property. This means that all of this property will be divided accordingly during the divorce proceedings.
When Assets Are Co-mingled
If one spouse uses funds from their trust for various "marital" purposes, the other spouse may have a right to a portion of those funds. For example, if money is taken out of a trust and placed into a joint bank account, that money will be considered marital property. Other purchases which are marital in nature includes payments on a home, investment in a joint business venture, and similar matters.
Do You or Your Spouse Have a Trust?
If you're considering divorce, it's important to consider whether or not you or your spouse has a trust; this can significantly impact any division of property and alimony payments you may receive or be responsible for. Due to the complexity and ambiguity of the law surrounding trust division, it's vital to retain an experienced lawyer who can provide quality counsel.
At the firm of Charles E. Willmott, P.A., our attorney is a board-certified expert in the fields of family law and divorce, a unique qualification that speaks to his high level of competence, his professionalism, and his ethical conduct.
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