So, you have heard me talk many times about my American Bar Association article on the overlap between divorce lawyers and trust or probate litigators. I wrote “When Worlds Collide” because our probate litigation law firm in West Palm Beach was getting called into big cases by Florida’s top family law lawyers when a trust was involved. I’m proud to say that we still work on a number of family law or divorce issues with Palm Beach’s top divorce attorneys, including trials and hearings on trusts this very year. So, if you are in the middle of a divorce, and your soon to be former husband or wife has one or more trusts, ask your divorce lawyer if you can get money from the trust. And read the two Casselberry cases from Florida’s 2nd District Court of Appeal.
Can I Get Money from My Former Spouse’s Florida Trust in a Divorce?
- First of all, you need to know two things if you want to get money from a Florida trust in a divorce.
- First, what type of Florida trust is it?
- Is the trust revocable or irrevocable?
- A revocable or living trust is part of a basic estate plan that many estate lawyers from Boca Raton to Naples prepare routinely for their Florida estate planning clients
- In Florida, the trust law says that one cannot — repeat, can NOT — put assets into a revocable trust and shield those assets from your own creditors
- This includes money for alimony or child support or equitable distribution of property in a divorce
- The law is a bit more challenging for irrevocable trusts. While not complex, it is not necessarily straigtforward
- And when Florida trust lawyers talk about irrevocable trusts created during a marriage, or before a marriage, we need to be careful to distinguish between a trust which is created by others for your spouse’s benefit vs. a so called “self-settled” trust which is created by your spouse for your spouse
- Different trusts. Different litigation strategy and application of trust law in Florida.
Getting Money from Your Ex Husband’s Trusts in Florida
- Here is the Florida appeals court opinion on this Berlinger v. Casselberry, November 27, 2013 opinion dealing with the appeal of an order of the trial court granting the former wife’s motion for contempt and a continuing writ of garnishment over money from discretionary trusts: http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/November/November%2027,%202013/2D12-6470.pdf
- If you are trying to get money from a trust in a Florida divorce, consider reading this part of the Florida Trust Code: Section http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0736/Sections/0736.0503.html
- If a Florida trust has a spendthrift provision, generally the trustee can’t use trust funds to pay a beneficiary’s creditors
- But Florida Trust Code 736.0503 creates an important exception under the trust law to this rule
- You may not get blood from a stone but you can get money from your ex husband’s trusts if you know where to look and you know the trust law–in some important circumstances
- There is an important carve out for support and maintenance
- But what about property distribution in a divorce? Well, generally courts won’t break up a Florida irrevocable trust created by someone else. Divorce courts may, though, break up and divide a trust that is self settled, or created by your former spouse. Most courts will not permit a spouse who is divorcing to create a so called asset protection trust or self settled Florida trust and then keep those assets from your spouse who is getting divorced.
- But the facts are the key. So, your case can vary, or take twists and turns, based on any number of circumstances. So, ask your divorce or family law attorney about your rights to family trusts and other trusts for child support, maintenance, alimony or equitable distribution of property under Florida law
- And, read Florida’s 2nd District Court of Appeal opinion in Inglis v. Casselberry, issued November 27, 2013: http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/November/November%2027,%202013/2D12-6463.pdf