The Trust Knot in Separation and Divorce Proceedings

Facing the end of a marriage is an emotionally and legally complex journey, which becomes even more arduous when there is suspicion that a spouse has undertaken maneuvers to remove assets from the family estate. One of the most delicate cases we deal with concerns the instrumental use of a trust to conceal real estate or liquidity, with the intent of excluding them from the marital property or artificially reducing one's earning capacity for the purpose of calculating maintenance payments. We deeply understand the sense of frustration and injustice that can arise from the fear of seeing one's economic rights violated after years of shared life.

In Italy, the institution of the trust is recognized thanks to the ratification of the Hague Convention, but its use is not without precise limits, especially in family matters. Although the trust is a legitimate tool for asset protection, jurisprudence is firm in condemning the so-called 'simulated trust' or 'sham trust', meaning a structure created fictitiously solely for the purpose of defrauding the rights of the spouse or creditors. When a spouse transfers assets into a trust while effectively maintaining total control and using it as a screen to appear penniless, we are faced with a situation that can be challenged. The law provides specific tools, such as the revocatory action or the action for simulation, to render such transfers ineffective and bring the assets back into the estate or make them available for the calculation of alimony.

The Bianucci Law Firm's Approach: Investigations and Protection

As an expert lawyer in family law in Milan, Avv. Marco Bianucci adopts a rigorous and analytical strategy to unmask attempts at asset concealment. We do not limit ourselves to accepting the superficial tax documentation presented by the opposing party, but we delve deeply into the substantial economic reality. Our approach is based on the awareness that client protection involves the truthful reconstruction of marital assets, an indispensable operation to ensure fair treatment in divorce proceedings.

The Bianucci Law Firm's strategy involves the immediate activation of in-depth asset investigations, often in collaboration with forensic financial consultants, to trace money flows and identify the effective ownership of assets transferred into the trust. The objective is to demonstrate to the Judge, with evidence in hand, that the trust was established in fraud of family rights or that the settlor never truly divested themselves of control over the assets. Thanks to the consolidated experience gained by Avv. Marco Bianucci in complex family law cases, we are able to request the intervention of the judicial authority to obtain orders for the production of documents and, where the conditions are met, the seizure of assets, ensuring that the calculation of maintenance or divorce payments reflects the real wealth of the opposing party.

Frequently Asked Questions

Is it possible to seize assets placed in a trust by a spouse?

Yes, it is possible if it can be proven that the trust was established with fraudulent purposes, i.e., solely to remove assets from the duties of family solidarity or to avoid paying maintenance. In such cases, through specific legal actions such as the revocatory action or a declaration of nullity for simulation, it is possible to have the assets virtually returned to the spouse's estate for the satisfaction of your rights.

How do you find out if my spouse has hidden assets in a trust?

Discovering hidden assets requires targeted investigative activity. It is often necessary to analyze bank statements, notarial deeds of sale, and historical real estate records to identify the moment of asset transfer to the trustee. In the context of divorce proceedings, the judge can order in-depth tax and banking investigations if there are well-founded suspicions of concealment, allowing the real asset situation to emerge.

Does a trust affect the calculation of maintenance payments?

In principle, income and assets