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Recent NJ Case Upholds Protection of Trust
When trusts are involved between divorcing spouses, matrimonial practitioners are faced with a number of issues concerning the assets of the trust. Among these issues important to the matrimonial practitioner is whether the wealth held in the trust is part of the marital estate subject to distribution, or if not, whether the assets are available to provide support to a former spouse and the children born of the marriage. While the laws differ from state to state ' and the law continues to evolve ' there are valuable general lessons for the matrimonial lawyer and other matrimonial practitioners. This two-part article discusses a recent landmark New Jersey case that addressed whether, for purposes of determining alimony, it was appropriate to impute income to a party based on her beneficial interest in a discretionary support trust. Tannen v. Tannen, 416 N.J. Super. 248 (App. Div. 2010), aff'd, — N.J. —, — A.3d —-, 2011 WL 6090130 (2011) (Tannen). The key terms, “discretionary” and “support,” are discussed below. This case is likely to be cited in future cases when other state courts have to address this issue.
The Case
The Tannen case involved a less-than-optimal trust for a host of reasons, most notably, that the grantor/parents remained trustees. It is unusual for the person forming and funding an irrevocable trust, the grantor, to serve as a trustee (other than in a revocable living trust). This and other provisions raise other tax concerns that were not addressed by the case. Further, the court did not have to address a range of ancillary issues that may prove critical to the resolution of how trusts should be treated in other matrimonial cases. These matters are discussed below, and in Part Two of this article.
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