If you hold a significant portion of your wealth in trust, whether a divorce court can reach those assets depends entirely on how you structured the trust, who created it, and how much control you or your spouse retains over its assets.
The type of trust drives the court’s analysis
The central question Ohio courts ask is whether trust assets constitute marital property, separate property or whether separate assets have become commingled:
- Revocable trust: A trust that the spouse who created it can change or dissolve at any time offers little protection in a divorce. Because that spouse retains control over the assets, Ohio courts generally treat them as part of the marital estate and subject to division.
- Irrevocable trust: A trust that permanently removes assets from the control of the spouse who created it is much harder for a court to divide. However, Ohio courts can still examine how the spouse funded the trust. If marital assets moved into the trust during the marriage, those transfers may face scrutiny.
The distinction between these two structures is the starting point for any serious trust analysis in a divorce proceeding.
Trusts created by a third party are more difficult to divide
If a parent, grandparent or other family member established an irrevocable trust for your benefit, Ohio courts have generally found that those assets do not belong to the marital estate. That protection is not automatic — courts look closely at how much control you actually have. The more freely you can access the assets, the more likely a court is to treat them as subject to division.
Trust distributions and income are still subject to scrutiny
Distributions you received during the marriage and deposited into shared accounts may have mixed with marital funds, potentially losing their separate character if you can no longer trace them back to the trust. Even if a court declines to divide the trust itself, the income it generates typically enters into spousal support calculations, regardless of how the court classifies the underlying trust assets.
Not all trust protections hold up in court
Some trust agreements include spendthrift provisions specifically designed to prevent a divorcing spouse from accessing or dividing trust assets. Under the Ohio Trust Code, this protection can be effective against property division claims, but it is unenforceable against a valid court order for spousal or child support.
The drafting quality of a trust agreement matters as much as its structure. Engaging counsel with demonstrated experience in complex trust and property division matters can make a material difference in both the outcome and the efficiency of your proceedings.