Q: I want to protect my assets before a divorce by creating a trust. Should I have a trust before or after the divorce?
Is creating a trust the best option to protect my assets before a divorce in Utah? If yes, should I have my trust before or after the divorce? What options I have to minimize the loss of my assets in Utah?
A:
If you are already married, the only way a Trust might help is if both of you sign an irrevocable trust, permanently giving up your asset. For example, the irrevocable trust could give the asset to your children. Once you both sign it, you no longer have control over the asset, so neither of you can claim the asset as your own. This approach will of course deprive you of the asset as well.
If a couple comes to my office before marriage, they can sign a prenuptial agreement that will reserve specific assets as your own in case of divorce or death.
Some of my clients have me prepare a revocable trust, with some provisions that become irrevocable upon your death. For example, in a second marriage, where you might have childen from a prior relationship, you might want a portion of the estate to go directly to those children. We can make the paragraph that gifts to the children permanent at your death, so surviving spouse cannot change it. Then when both spouses sign, it can only be changed later with the signature of both spouses.
If the marriage began in another state, where they had community property, the status of the property - where perhaps you each owned your own house - can carry on into Utah and remain a separate status.
Mike Branum agrees with this answer
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