What Went Wrong is our series on real, published cases. Each entry follows what the documents said, what the court did, and what it teaches. Every quotation comes from the court’s own opinion. These are other parties’ cases, not our clients, and they predict nothing about any reader’s situation.
People ask us whether a Florida trust can put money truly beyond reach. The honest answer is that a well-built trust is one of the strongest shields in American law, and that the shield has edges the Legislature wrote into it on purpose. Here is the published case that shows exactly where one of those edges sits, told through a man who lived on the wrong side of it.
The setup
A thirty-year marriage ended in 2007, and the settlement gave the former wife $16,000 a month in permanent alimony. In 2011 the former husband stopped paying.
He did not stop living well. He and his current wife lived entirely on four family discretionary trusts, the kind where the trustee decides what to distribute and no beneficiary can demand a dollar. The trusts paid the mortgage, the property taxes, the homeowner’s insurance, the electricity, the water, the lawn care, the pool care, and the pest control. A trust-funded credit card covered travel, entertainment, clothing, medical bills, and gifts, along with the current wife’s own card bills and cash advances to pay the maid. Neither he nor his wife worked, and neither intended to look for work. Days before a court hearing, he deeded his interest in the residence into a trust nobody had disclosed, then testified eight days later that no such trust existed.
The trusts carried spendthrift provisions, the standard clause that stops a beneficiary from signing away his interest and stops his creditors from reaching it. When collection came into view, the trustees stopped paying him directly and started paying his creditors instead, so that no distribution ever touched his hands.
The fight
The former wife asked for a continuing writ of garnishment, an order that sits in the path of trust distributions and redirects them as they come out. The trustees’ position was simple. These are discretionary trusts with spendthrift clauses, and Florida law protects them absolutely.
Florida’s courts had heard that argument before. Back in 1985 the Florida Supreme Court weighed a spendthrift trust against unpaid alimony and set the state’s policy plainly. “We have weighed the competing public policies and, although we reaffirm the validity of spendthrift trusts, we conclude that in these types of cases the restraint of spendthrift trusts should not be an absolute bar to the enforcement of alimony orders or judgments.” The reason reads like a verdict on this fact pattern written twenty-eight years early. “When these traditional remedies are not effective, it would be unjust and inequitable to allow the debtor to enjoy the benefits of wealth without being subject to the responsibility to support those whom he has a legal obligation to support.” The high court drew the mechanism in two sentences. “If disbursements are wholly within the trustee’s discretion, the court may not order the trustee to make such disbursements. However, if the trustee exercises its discretion and makes a disbursement, that disbursement may be subject to the writ of garnishment.”
In 2013 the Second District Court of Appeal held that Florida’s Trust Code carried that rule forward, and applied it to these trusts. “Thus, the spendthrift provisions included in Berlinger’s trusts are unenforceable as to Casselberry because she has an order against him for support.” The trustees argued the discretionary label changed everything. The court read the statute and found the space it leaves open. “The section does not expressly prohibit a former spouse from obtaining a writ of garnishment against discretionary disbursements made by a trustee exercising its discretion. As a result, it makes no difference that the instant trusts are discretionary.” Its summary fits in one line. “Neither section protects a discretionary trust from garnishment by a former spouse with a valid order of support.” And it ranked the two policies in the open. “Florida has a public policy favoring spendthrift provisions in trusts and protecting a beneficiary’s trust income; however it gives way to Florida’s strong public policy favoring enforcement of alimony and support orders.”
The order the court affirmed is the template. Whatever the trustees chose to distribute to him, for him, or on his behalf had to be paid to the former wife until the alimony and arrears were current, and distributing anything beyond that required the court’s permission first. The trustees kept their discretion. They just could no longer exercise it around her.
What it teaches
The shield is real, and so is the carve-out. Florida law names the claimants a spendthrift clause cannot stop, and a child, spouse, or former spouse holding a support order leads the list. Ordinary creditors remain blocked. In another Florida case, a creditor holding a judgment of more than a million dollars could not reach a discretionary trust even though the trial court found the beneficiary ran it in everything but name. The same body of law produced both results. The protection turns on who is owed and why, not on how cleverly the money moves. Our annotations of the spendthrift exceptions and the discretionary trust rule map the whole line, case by case.
Paying his bills instead of paying him changed nothing. The trustees rerouted distributions to third parties so the beneficiary never held the money. The garnishment reached the disbursements anyway. Maneuvers like that read well in a planning meeting and poorly in an appellate opinion.
A trust cannot be drafted around a support order. Families sometimes ask for exactly that, a structure that keeps trust money flowing to an adult child while a divorce judgment goes unpaid. Florida closed that road in 1985 and codified the closure. Honest asset protection is built on what the law actually protects, homestead, exemptions, the right entity, the right trust, against the risks it actually stops. That is the planning conversation worth having, and our asset protection guide is where it starts.
If you are the one owed support, the trust is not a dead end. The remedy comes with a gate the Supreme Court set itself. “This enforcement alternative should be allowed only as a last resort.” That means the collection history matters as much as the support order. Bring both, and whatever you know about the trust, to a free 30-minute consult. Thirty minutes is usually enough to tell whether the showing is there.
The case. Berlinger v. Casselberry, 133 So. 3d 961 (Fla. 2d DCA 2013). Quotations are from that court’s published opinion and from the Florida Supreme Court’s published opinion in Bacardi v. White, 463 So. 2d 218 (Fla. 1985). The parties were not clients of this firm, and every case turns on its own facts.
Related Guides
- Exceptions to a spendthrift provision (Fla. Stat. 736.0503)
- Discretionary trusts and creditors (Fla. Stat. 736.0504)
- Florida irrevocable trusts
- Florida asset protection attorney
Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. This article is general information about Florida law, not legal advice, and does not create an attorney-client relationship.