Do I have right to 50% of a property in a divorce without children?

My husband is a trustee and our house is part of it. If we divorce, do I have rights on the house? The Trust was set up by my mother-in-law before we got married. She passed away and my husband is the trustee. I will appreciate your answer because my husband put the house for sale and he said the money will go to the account for the Trust.

Asked on July 2, 2017 under Family Law, Arizona


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

The trust is a separate legal person from you or your husband, so it is not part of your marital assets and is not divided in a divorce. Rather, the assets in the trust are invested, distributed, etc. as per the instructions set forth in the documents creating the trust; while the trustee (e.g. your husband) has a certain amount of discretion, fundamentally, he must carry out the intention of the trust and the wishes/instructions of the person(s) making it. So as a general rule, you would not have a right to half the property in the trust. Even if you are a beneficiary of the trust, you would not simply get half the assets; rather, the trust will own them and distribute them as per the rules setting it up. If you are a beneficiary and feel your husband as trustee is violating his duty to the beneficiaries or under the terms of the trust, you could bring a legal action (lawsuit) in chancery court seeking to hold him accountable for his actions--the court could do one or more of force him to follow the terms or instructions of the trust, have him repay any amounts he improperly took, used, or distributed, or remove him as trustee.
If you feel that he defrauded you in transferring marital property into the trust without your true consent to the action, you may also have a lawsuit on that basis.
But if he is fairly adminstering the trust in accordance with its terms or instructions, and all the assets in the trust are properly part of it, you would not have recourse.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.