Overview of Property Division
When a couple cannot come to agreement on how property should be distributed in divorce, the court will decide. Some states divide the property equally while others do so on the basis of fairness, taking into account individual contributions to the marriage. However, as a preliminary matter, all property owned by the couple must be classified as marital or separate. Property considered marital property is subject to division, and generally includes all assets acquired during the marriage that were not obtained by gift or inheritance. All other property is deemed separate and not subject to division.
A revocable trust is a trust that may be withdrawn or changed by the person who created it, often referred to as a grantor or settlor. This differs from an irrevocable trust in which the grantor cannot change or withdraw the trust after its creation. The revocable trust is funded by property deposited by the grantor, who also appoints a trustee to administer the funds and distribute assets to beneficiaries according to the terms of the trust. It is not uncommon in the marriage context for the grantor and his spouse to be beneficiaries under the trust.
While a revocable trust unquestionably qualifies as marital property, the timing of its creation becomes pivotal in determining whether it is subject to division. If the trust is created during the marriage, most states will treat it as marital property, unless you can prove that you and your spouse intended it to be separate. This might be established by evidence that you and your spouse kept all of your assets in separate accounts, or if you executed a prenuptial agreement covering the property used to fund the trust.
It may be the case that your spouse was listed as a beneficiary when the trust was created. Some states have addressed this issue by enacting specific legislation that automatically rewrites the trust instrument removing this designation after divorce. However, if you are also named as a beneficiary, money you receive as interest on the trust funds may be considered income for the purposes of child support and alimony, depending on the state. This means that although your spouse is no longer a beneficiary, a judge could award a portion of your trust income to her after considering the needs of everyone involved and the standard of living enjoyed during the marriage, among other factors.