If I Have a Judgment Aganist Me Can the Creditor Attach Property I Transfer to My Spouse?
Full Question:
Answer:
Property owned by either spouse a community property state may be attached by creditors. If a transfer is created with knowledge of an impending claim, it is possible the transfer could be challenged as a fraudulent conveyance. For example, creating a trust right before filing bankruptcy may throw up red flags for examination.
The elements of a fraudulent conveyance transfer are defined as follows by the Uniform Fraudulent Transfer Act:
(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or
(2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
(i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
(ii) intended to incur, or believed or reasonably should have believed that he [or she] would incur, debts beyond his [or her] ability to pay as they became due.
We suggest contacting the clerk of courts regarding viewing the original order if you think there may be an impropriety. Please see the following CA Rule of Court:
RULE 3.1806. NOTATION ON WRITTEN INSTRUMENT OF RENDITION OF JUDGMENT
In all cases in which judgment is rendered upon a written obligation to
pay money, the clerk must, at the time of entry of judgment, unless
otherwise ordered, note over the clerk's official signature and across
the face of the writing the fact of rendition of judgment with the date
of the judgment and the title of the court and the case.
Please see the following CA statute:
910. (a) Except as otherwise expressly provided by statute, the
community estate is liable for a debt incurred by either spouse
before or during marriage, regardless of which spouse has the
management and control of the property and regardless of whether one
or both spouses are parties to the debt or to a judgment for the
debt.
(b) "During marriage" for purposes of this section does not
include the period during which the spouses are living separate and
apart before a judgment of dissolution of marriage or legal
separation of the parties.
