If you are going through a divorce and either you or your spouse has an interest in a trust, you likely have questions. Can your spouse claim part of your fa
The answers depend on the type of trust, who created it, what control the beneficiary has, and how distributions were handled during the marriage. This article explains how Illinois divorce courts evaluate trusts and what steps you should take family trust?
Do distributions count toward child support or maintenance? What happens to the trust you and your spouse created together?
Key Takeaways
- Trust principal (the assets inside a trust) is often protected from property division because you do not own it. The trust does.
- Trust distributions you receive may count as income for child support and maintenance calculations under 750 ILCS 5/505 and 5/504.
- If you deposited trust distributions into joint accounts or used them for household expenses, those funds may have become marital property through commingling.
- A joint revocable trust you and your spouse created together remains marital property subject to division in your divorce.
- The level of control a beneficiary has over a trust is often the critical factor in how courts treat trust assets.
- Your divorce attorney can subpoena trust documents and distribution records through discovery to investigate trust interests.
How Illinois Divorce Courts Analyze Trust Interests
When a trust comes up in an Illinois divorce, the court looks at several factors to determine how it affects property division and support.
Who Created and Funded the Trust?
A trust created by a third party, such as a parent or grandparent, for your benefit is treated differently than one you created yourself. If someone else created and funded the trust with their own money, you did not contribute marital assets to it. This distinction matters for property classification.
Does the Beneficiary Own the Trust Assets?
Generally, no. Assets inside a trust are owned by the trust, not the beneficiary. This is why the trust principal is often protected from division in divorce. Your interest as a beneficiary is usually an expectancy, not ownership. Illinois courts typically cannot divide property you do not own.
What Control Does the Beneficiary Have?
This is often the critical question. If you can access trust assets at will, demand distributions, or serve as trustee with broad powers, courts may treat the assets as available to you. If distributions are entirely at an independent trustee’s discretion, your interest is more likely viewed as a future expectancy with less immediate impact on your divorce.
How Were Distributions Handled During the Marriage?
Under 750 ILCS 5/503(c)(1), distributions you received and kept in a separate account may remain non-marital property. Distributions deposited into joint accounts or used for household expenses may have become commingled with marital funds. Commingling can change the character of those funds from non-marital to marital.
Trust Principal vs. Trust Distributions in Illinois Divorce
The distinction between trust principal and trust distributions is the most important concept to understand. Many people misunderstand how Illinois courts treat each one differently.
Trust Principal in Property Division
If you are the beneficiary of a trust someone else created, you generally do not own the assets inside the trust. The trust does. In divorce, Illinois courts typically cannot divide property you do not own. This means the trust principal is often protected from property division, regardless of its value.
Trust Distributions in Property Division
Once funds are distributed to you, they become your property. Whether they remain non-marital depends on how you handled them. Distributions kept in a separate account in your name only may remain non-marital under 750 ILCS 5/503(a). Distributions deposited into a joint account or used for marital expenses may be considered commingled and become marital property.
Trust Distributions as Income for Child Support and Maintenance
This is where many people are surprised. Even when trust principal is protected from division, distributions may count as income for support calculations.
Under 750 ILCS 5/505(a)(3) and 750 ILCS 5/504(b-3), Illinois courts consider “all income from all sources” when calculating child support and maintenance. In In re Marriage of Sharp, 369 Ill.App.3d 271 (2006), the Illinois Appellate Court held that trust distributions are income for support purposes. The court found that the husband’s trust distributions constituted income even though he argued the spendthrift trust should be exempt.
This means your spouse may not be able to claim a share of the trust itself, but the distributions you receive may increase your income for support calculations.
How Different Trust Structures Affect Your Illinois Divorce
The type of trust involved affects how Illinois courts analyze its impact on your divorce. The following table summarizes how common trust structures are typically treated in property division and support calculations.
| Trust Situation | Property Division | Support Calculations |
| Irrevocable trust created by parent or grandparent for your benefit | Principal typically protected; you do not own trust assets | Distributions may count as income |
| Discretionary trust with independent trustee | Principal typically protected; no guaranteed distributions | Past distribution pattern may be considered |
| Trust where you receive regular distributions | Principal may be protected; commingled distributions may not be | Distributions likely count as income |
| Trust where beneficiary is also trustee or has control | Court may treat assets as available to you | Distributions count as income |
| Joint revocable trust you and spouse created together | Assets remain marital property subject to division | N/A (assets are divided, not treated as income) |
What Happens to a Joint Revocable Trust in Your Illinois Divorce
Many couples create revocable living trusts together during marriage for estate planning purposes. When they divorce, the trust must be addressed as part of the property division process.
The Assets Remain Marital Property
Creating a trust does not convert marital property into something else. If you and your spouse funded the trust with assets earned or acquired during your marriage, those assets are still subject to equitable distribution under 750 ILCS 5/503. The trust structure does not change the property classification.
Provisions Benefiting Your Spouse Are Automatically Revoked
Under 760 ILCS 3/605(b), when your divorce is finalized, provisions in the trust that benefit your former spouse are automatically revoked. This includes beneficiary designations, distributions to your ex-spouse, and appointment as trustee. This happens automatically unless your divorce judgment specifically says otherwise.
You Will Need to Address the Trust in Your Divorce
The trust assets will be divided as part of your settlement or court judgment. You will likely need to terminate the trust or amend it after your divorce is finalized. Both you and your spouse should update your estate plans after the divorce.
Common Trust Situations in Illinois Divorce Cases
Your Parents Created a Trust for Your Benefit Years Ago
You are the beneficiary of an inheritance from your parents or grandparents. In divorce, the trust principal is typically protected because you do not own it. However, distributions you received and commingled may be treated as marital property. Regular distributions may be counted as income for support.
What to do: Gather the trust document, distribution records, and bank statements showing how you handled distributions. Your divorce attorney needs this to evaluate your situation.
You Receive Regular Distributions From a Family Trust
If you have received consistent distributions over many years, courts may consider those as reliable income for support calculations, even if the distributions are technically discretionary. The pattern of past distributions often matters more than what the trust document says about whether distributions are guaranteed.
What to do: Be prepared to provide your complete distribution history. Understand that while the trust principal may be protected from property division, the distributions likely affect support calculations in your divorce.
Your Spouse Has Trust Interests You Want to Investigate
If your spouse is a trust beneficiary and you want to understand what that means for your divorce, you have options. Through discovery, you can request trust documents and distribution records. If you suspect hidden assets in a trust, your attorney can investigate further. You can examine your spouse’s level of control and review whether distributions should count as income for support.
What to do: Tell your divorce attorney about your spouse’s trust interests. Your attorney can subpoena trust documents if your spouse does not provide them voluntarily.
Your Spouse Claims Their Trust Is Completely Off-Limits
If your spouse says the trust cannot be touched in divorce, the details matter. Does your spouse have control over distributions? What distributions have they received? Were those distributions deposited into joint accounts? The trust principal may be protected, but that does not mean the trust is irrelevant to your divorce.
What to do: Ask your divorce attorney to investigate the trust thoroughly. Do not accept your spouse’s characterization without verification.
Common Mistakes When Trusts Are Involved in Illinois Divorce
Mistakes Trust Beneficiaries Make
- Assuming the entire trust is irrelevant to divorce without analyzing distributions and control
- Depositing trust distributions into joint accounts, which creates commingling issues
- Not understanding how distributions affect child support and maintenance calculations
- Making changes to the trust during divorce without legal advice
- Serving as trustee without understanding how that level of control affects the court’s analysis
Mistakes Non-Beneficiary Spouses Make
- Assuming a spouse’s trust is untouchable without investigating the details
- Not requesting trust documents and distribution history in discovery
- Overlooking trust distributions as income for support calculations
- Not analyzing whether the beneficiary spouse has control over trust assets
What Your Divorce Attorney Needs to Know About Trust Interests
If trusts are involved in your divorce, your attorney will need specific information to evaluate how they affect your case.
About the trust structure:
- Who created the trust (you, your spouse, or a third party like a parent)
- Whether the trust can be revoked
- Who serves as trustee and what powers they have
- What distributions the beneficiary is entitled to receive
- What control the beneficiary has over the trust
About distributions:
- History of distributions received during the marriage
- How distributions were handled (separate account vs. joint account)
- Whether there is a pattern of regular payments
Documents to gather:
- Trust agreement (may need to be subpoenaed from the trustee)
- Account statements showing trust assets and distributions
- Bank statements showing where distributions were deposited
- Tax returns showing trust income (K-1 forms)
When to Talk to a Divorce Attorney About Trust Issues
Trust issues add complexity to divorce. An experienced divorce attorney can evaluate how a trust affects property division, determine whether distributions count as income for support, conduct discovery to obtain trust documents, and present trust-related arguments effectively in settlement or court.
If you are facing divorce and have questions about how a trust may affect your case, contact Anderson Boback & Marshall for a consultation. We handle high-asset divorce and property division matters involving trusts for clients in Cook, DuPage, Lake, and Will counties.
Frequently Asked Questions About Trusts in Illinois Divorce
Can My Spouse Get My Trust in an Illinois Divorce?
Generally, no, if someone else created the trust for your benefit. Assets inside a trust are owned by the trust, not you as beneficiary. Illinois courts typically cannot divide property you do not own. However, this does not mean the trust is irrelevant to your divorce. Distributions you received and commingled with marital funds may be treated as marital property under 750 ILCS 5/503(c)(1). And even when the trust principal is protected from division, distributions may count as income when calculating child support or maintenance.
Do Trust Distributions Count as Income for Child Support in Illinois?
Yes. Under 750 ILCS 5/505(a)(3), Illinois courts consider “all income from all sources” when calculating child support. In In re Marriage of Sharp, 369 Ill.App.3d 271 (2006), the court held that trust distributions are income for support purposes, even from a spendthrift trust. If you receive regular distributions, those may be counted as part of your income, even if the trust principal is protected from property division.
Is Trust Income Treated Differently From Trust Principal in Illinois Divorce?
Yes, and this distinction is critical. Trust principal (the assets inside the trust) is often protected from property division because you do not own it. But once funds are distributed to you, they become your property. If you kept distributions separate, they may remain non-marital. If you deposited them into joint accounts, they may be commingled. Additionally, distributions may count as income for support calculations under 750 ILCS 5/505 and 5/504, regardless of how you handled them.
Does It Matter if a Trust Is Revocable or Irrevocable in My Illinois Divorce?
Yes. An irrevocable trust generally cannot be changed, and the beneficiary typically cannot access principal at will. This usually means trust assets are not considered available for division. A revocable trust can be changed or terminated by the person who created it, so if you created it and retained control, courts may treat the assets as available to you. For a joint revocable trust you and your spouse created together during your marriage, the assets remain marital property and will be divided in your divorce under 750 ILCS 5/503.
What if My Parents Created the Trust for Me Before I Got Married?
When a third party like a parent creates a trust for your benefit, you did not contribute marital assets to fund it. This typically strengthens the argument that trust principal is not marital property. However, distributions you received during your marriage and how you handled them still matter for property division. If you deposited distributions into a joint account, commingling may have occurred. And distributions may count as income for support calculations regardless of when the trust was created.
What Happens to Our Joint Revocable Trust When We Get Divorced in Illinois?
If you and your spouse created a revocable living trust together during marriage, the assets remain marital property subject to division. Under 760 ILCS 3/605(b), when your divorce is finalized, provisions benefiting your former spouse are automatically revoked. You will need to address the trust in your divorce settlement and likely terminate or amend it afterward.
What if My Spouse Is the Trustee of Their Own Trust?
When a beneficiary serves as trustee with broad powers, Illinois courts look closely at the level of control. If your spouse can distribute assets to themselves and effectively access trust property at will, courts may treat those assets as available. The more control someone has over a trust, the weaker the argument that trust assets should be protected from consideration in divorce.
Can I Find Out About My Spouse’s Trust Interests During Our Illinois Divorce?
Yes. Through discovery, your divorce attorney can request trust documents, account statements, and distribution records. If your spouse does not provide these voluntarily, your attorney can subpoena the information from the trustee. Review your spouse’s tax returns for K-1 forms showing trust income. Discovery is a powerful tool for uncovering trust interests in divorce.
What if My Spouse Transferred Assets to a Trust During Our Marriage?
Transferring marital assets to a trust during divorce or when divorce is anticipated can be challenged as a fraudulent transfer. Illinois courts can set aside transfers made to deprive a spouse of their fair share. Through discovery, your attorney can investigate when the trust was created, how it was funded, and what transfers occurred. A trust funded with marital assets during a marriage breakdown may not provide the protection the transferring spouse hoped for.
