Many times in a divorce, one or both parties will be required to set up a trust to hold funds for the minor children’s college education. I’ve been contacted by divorce attorneys after the divorce to draft such trusts based on the language in the divorce agreement. Which was written by divorce attorneys. Not trust attorneys. And that is where the problems can begin.
Many times the terms used in the divorce agreement regarding the trust are not clear – for instance if "minor children" is used in one place and "emancipated children" is used in another, which was meant? If it refers to a providing for funds for a "secondary education" does this mean only at an accredited school, or would a trade school qualify? Trying to interpret the answers to these questions after the divorce is final so that the trust can be drafted to comply with the agreement can be time consuming and costly. In addition, if the other party disagrees with how the trust was drafted based on vague language in the divorce agreement, that can lead to more costs and time with the divorce attorneys hashing out what their clients meant in the agreement, and the estate planning attorney having to redraft the trust.
Checking in with an estate planning attorney when you are including language about a trust in a divorce agreement can save you and your client a lot of time and hassle, and the estate planning attorney might bring up some issues you hadn’t thought of with regard to the trust.
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