Can a Trust Protect Assets in a Florida Divorce?

An irrevocable trust created by a third party (a parent, grandparent, or other family member) can protect assets from equitable distribution in a Florida divorce. A revocable trust provides no protection because the grantor retains ownership and control. Protection depends on the type of trust, who created it, when it was funded, and whether trust assets were commingled with marital property.

A divorce court’s power to reach trust assets also depends on which financial obligation is at issue. Equitable distribution, alimony, and child support each follow different enforcement rules, and a trust that shields assets from one does not necessarily shield them from the others.

Does an Irrevocable Trust Protect Against Equitable Distribution?

An irrevocable trust created by someone other than either spouse provides the strongest protection against equitable distribution in a Florida divorce. The trust assets were never marital property because neither spouse transferred them into the trust, and the trust exists independently of the marriage.

Florida Statutes § 61.075(6)(b) defines nonmarital assets to include property acquired by bequest, devise, descent, or a gift from someone outside the marriage. An inheritance received through an irrevocable trust qualifies as nonmarital property as long as the beneficiary spouse keeps the trust assets separate from marital funds.

Spendthrift provisions prevent the non-beneficiary spouse from attaching the beneficiary’s trust interest. Discretionary distribution language prevents a court from ordering the trustee to distribute trust assets. Together, these provisions leave the beneficiary spouse’s interest in a third-party discretionary trust with no ascertainable value that a court can assign during equitable distribution.

An unpaid equitable distribution award is a money judgment. The ex-spouse collecting on that judgment has no greater enforcement power than a bank collecting on an unpaid credit card. All of Florida’s creditor exemptions therefore protect assets from an equitable distribution award.

What About an Irrevocable Trust Created by a Spouse?

An irrevocable trust created by one spouse during the marriage may still protect assets from equitable distribution, but the analysis depends on what funded the trust and whether the transfer was genuine.

In Nelson v. Nelson (2d DCA 2016), the husband created an irrevocable trust during the marriage for his wife and her descendants. The couple then transferred a jointly titled California home into the trust. When they divorced, the trial court treated the home as marital and ordered it listed for sale. The appellate court reversed. Once the home went into the trust, it stopped being a marital asset. The trust owned it, and the trust was not a party to the divorce. A court cannot distribute property belonging to a nonparty.

The transfer must be genuine and irrevocable. If the transferring spouse retains any power to revoke, amend, or reclaim the assets, the transfer fails for both asset protection and divorce purposes.

Can You Put Your House in a Trust Before a Divorce?

Transferring a home into an irrevocable trust before a divorce is possible, but the timing and circumstances determine whether the transfer holds up. A trust funded years before any marital difficulties is in a strong position. A transfer made after the marriage has deteriorated (or worse, after a spouse has filed for divorce) faces serious fraudulent transfer risk.

Florida courts can reverse a transfer made with intent to hinder, delay, or defraud a spouse seeking equitable distribution. Florida Family Law Rule 12.285 requires full financial disclosure under oath during divorce. A transfer designed to hide assets can trigger contempt sanctions, perjury exposure, and an unfavorable property division.

Why Revocable Trusts Provide No Protection

A revocable living trust offers no asset protection in a Florida divorce. The grantor retains the power to amend, revoke, or terminate the trust and continues to control the trust assets. Because the grantor maintains ownership for legal purposes, the trust assets are treated as the grantor’s personal property.

Florida Statutes § 736.1105 provides that after a divorce, provisions in a revocable trust that affect the settlor’s former spouse are automatically voided unless the trust document or divorce judgment states otherwise. The statute treats a revocable trust the same way Florida law treats a will after divorce.

A revocable trust funded with marital assets during the marriage is marital property subject to equitable distribution. The trust form does not change the character of the underlying assets.

How Commingling Destroys Trust Protection

Trust protection in a Florida divorce can be destroyed by commingling. Commingling means mixing trust distributions with marital funds. If a beneficiary spouse deposits trust distributions into a joint marital account, those distributions may lose their nonmarital character. The spouse claiming the assets are nonmarital then has the burden of tracing the funds back to the trust.

Florida courts apply a tracing analysis to determine whether commingled funds retain their nonmarital character. If the trust beneficiary can demonstrate through financial records that specific funds originated from trust distributions and were never mixed with marital earnings, the court may treat those funds as nonmarital. Without adequate documentation, commingled funds are presumed marital.

Maintaining a separate account for trust distributions is the single most important practical step a trust beneficiary can take. Trust distributions should flow into an account titled solely in the beneficiary’s name, and marital funds should never be deposited into that account.

Alimony, Child Support, and Trust Assets

Alimony and child support are ongoing obligations enforceable by contempt of court, a power that does not apply to equitable distribution awards. A person who fails to pay alimony or child support can be jailed. Florida’s constitution forbids imprisonment for unpaid debts, and an equitable distribution award is a debt, so the enforcement tools are weaker.

Support claims can get past a spendthrift clause. Under Florida Statutes § 736.0503, a spendthrift provision is unenforceable against a beneficiary’s spouse, former spouse, or child who holds a support judgment. A court can order present or future trust distributions attached to pay the support, but only as a last resort, after a showing that traditional collection methods are not enough. In Bacardi v. White, the Florida Supreme Court allowed garnishment of spendthrift trust disbursements for alimony before the money reaches the beneficiary.

Discretionary distribution language holds up better. Under Florida Statutes § 736.0504, a court cannot compel the trustee to make a distribution that is subject to the trustee’s discretion, even for a support creditor. The trust principal stays beyond reach, but a support creditor can garnish what the trustee does pay out, including money the trustee pays on the beneficiary’s behalf. In Berlinger v. Casselberry (2d DCA 2013), a former wife garnished the mortgage, utilities, and credit card bills the trustees paid for her ex-husband after they stopped paying him directly.

Courts can also factor a spouse’s trust interest into alimony decisions even when the trust assets are not directly reachable. A spouse who receives regular discretionary distributions may be deemed to have greater financial resources than earned income alone would suggest. The court cannot order the trustee to increase distributions, but it can factor existing distribution patterns into the alimony amount.

Why Self-Settled Trusts Fail in Divorce

A spouse who creates an irrevocable trust for their own benefit faces a basic problem. Florida law treats self-settled trusts as transparent to creditors. Under Florida Statutes § 736.0505(1)(b), creditors of a trust’s settlor can reach the maximum amount that could be distributed to the settlor or paid for the settlor’s benefit. A former spouse with an equitable distribution judgment qualifies as a creditor.

The self-settled trust prohibition applies regardless of spendthrift provisions or discretionary distribution language. If the trust’s creator is also a beneficiary, the trust offers no barrier against the former spouse’s claims.

A domestic asset protection trust formed in Nevada or South Dakota may theoretically provide some protection, but Florida courts have been reluctant to apply other states’ DAPT statutes to Florida residents. Florida follows the public policy of the settlor’s domicile, and a Florida resident who creates an out-of-state DAPT should not expect a Florida court to honor that state’s self-settled trust protections.

Offshore Trusts and Divorce Protection

A Cook Islands trust or other offshore trust established before marriage provides the strongest protection against all three divorce obligations. The foreign trustee operates outside U.S. court jurisdiction and cannot be compelled to distribute trust assets or comply with U.S. court orders.

Offshore trust protection against support obligations differs from protection against equitable distribution. A court can hold a trust beneficiary in contempt for failing to pay alimony or child support, even when the assets are in an offshore trust.

The defense to contempt is inability to comply. A beneficiary asserting it must account, categorically and in detail, for why the money cannot be produced. Courts treat that burden as a heavy one where the assets sit offshore in a protective trust. The defense also fails where the beneficiary created the inability, so a beneficiary who moved assets offshore in anticipation of the claim cannot use it.

Cook Islands trusts cost about $21,000 to establish and about $5,000 per year in trustee fees thereafter, and they carry IRS reporting requirements. Courts have broad discretion to draw adverse inferences when a party structures assets to frustrate legitimate support obligations.

Other Ways to Protect Assets in a Divorce

Florida’s creditor exemptions, including homestead, retirement accounts, and annuities, also protect assets from equitable distribution judgments, though they are less effective against alimony and child support. Protecting assets from divorce requires matching each obligation to the strategy that addresses it. An irrevocable trust is one of several asset protection tools under Florida law that can play a role, depending on the type of obligation and the assets involved.