My soon-to-be ex-husband placed his money in a trust before we married,
and used it to buy properties. Am I entitled to any of these?
Last Updated: Dec. 10, 2020 at 5:48 a.m. ET
First Published: Nov. 20, 2020 at 3:13 a.m. ET
By Quentin Fottrell
He also bought an investment property, supposedly with his trust fund a
month after marriage without my knowledge and another investment
property with his mom before marriage’
My spouse created a revocable trust two months before our marriage
without my knowledge. He placed all of his money in the trust fund. We
are now getting a divorce. Am I entitled to any of his assets? Or not?
He also bought an investment property, supposedly with his trust fund, a
month after marriage without my knowledge (his mom co-signed), and
bought another investment property with his mom before marriage. I am
the only one on the deed of the house we currently live in.
Dear Soon-to-be ex,
In an equitable-property state, a divorce court is under no obligation
to divide property 50/50, but generally assets brought into the marriage
are treated as separate property. In a community-property state, any
assets acquired during the marriage are deemed marital property and
divided 50/50. In a community-property state, gifts and inheritance are
not regarded as marital property and, therefore, not divided equally in
Your family home is considered community property if it was purchased
during the marriage, and/or if joint funds were used to pay the mortgage
or for the upkeep of the property regardless of whose name is on the
deed. However, in an equitable-property state, the divorce court may
take your husband’s own financial activities and/or behavior into
account when splitting the assets. If you purchased this property prior
to the marriage, it will remain yours and yours alone.
There are exceptions in which some of your husband’s assets/funds could
be considered community property, Kyle Hafstad, estate planning adviser
at Exencial Wealth Advisors, told MarketWatch. “In some
community-property states, though the asset/property itself is
considered separate property, the income from the investments/assets
(including a rental property) are considered community property.”
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“If the income, deemed community property in this situation, was then
used to purchase the investment property during the marriage, then all
or part of that investment property may be considered a community
property asset,” he adds. “Often the courts will take a spouse’s
separate property into account when dividing the community-property
assets, meaning that one spouse may end up receiving more than 50% of
the community-property assets during a divorce.”
Such commingling is always a risk. According to Long, Murphy & Zung, a
law firm in Naples, Fla., “one of the most common reasons exes lay claim
to trusts belonging to their spouses is because assets were pulled out
during the marriage and commingled with the couple’s finances.” The firm
adds, “Trusts work very much like any other asset does in a divorce.” If
your husband owned it prior to the marriage, it remains separate
property. Florida is an equitable-distribution state.
Your husband is subject to the same rules as everyone else. Koons
Fuller, a law firm in the Dallas/Fort Worth area, breaks it down this
way: “You can determine if a house is community property or separate
property using the following rules: A house purchased during marriage is
presumed to be community property. A house owned before marriage is
separate property, as is a house inherited or received as a gift.” Texas
is a community-property state.
Your husband is either a cautious man or, to put a more skeptical spin
on it, he believes that marriage is the first step towards divorce.
Your lawyer will help you navigate the finer details in your state and
marriage. Generally, secrets do not bode well for a spouse’s confidence
in a marriage. Some are worse than others. I have received many letters
where one or both spouses write a secret will; one woman said her
husband, who had a monthly income of $8,000, sent his mail to a P.O. box
to hide his finances. One silver lining here: Your husband’s actions
seem less egregious compared to that.
He is either a very cautious and meticulous man or, to put a more
skeptical spin on it, he believes that marriage is the first step
towards divorce. Setting up this trust in secret did not bode well for
his trust in the marriage itself. Ditto buying an investment property
with his mother without telling you. I suggest you were dealing with an
unknown quantity from the very beginning, and I’m talking about your
husband here, not the total value of his assets.
The Moneyist: I filed for bankruptcy after rehabbing my husband’s home.
Now he wants an open marriage and says I own nothing. I feel trapped and
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