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

Answers:

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.


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