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Question re marital settlement agreement, alimony,
Hi Patrick,
There may be a Beverly situation, though unitentional. I am thinking it's
outside the SOL, though.
Holly Roark
holly@roarklawoffices.com
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
On Thu, Nov 8, 2012 at 10:42 AM, Patrick T. Green wrote:
> **
>
>
> Holly:****
>
> ** **
>
> **1. ** You havent said why the transfer was fraudulent. The mere
> fact of an MSA does not make it fraudulent. Was it an unequal division?
> Was the value of an asset inflated to make it appear to be an equal
> division (Mejia)? Was there an equal division but the non-debtor spouse
> received non-exempt property while the debtor spouse received exempt
> property (Beverly)? ****
>
> **2. **Number one has to be answered first.****
>
> **3. **Why would alimony payments be preference? If they paid if
> they came due, they are not for an antecedent debt. Even some back support
> was paid, the debt is for the top priority claim, a DSO, so why would the
> trustee go after it?****
>
> ** **
>
> If you have any questions or concerns, please contact me.****
>
> ** **
>
> Pat****
>
> ** **
>
> Patrick T. Green****
>
> Attorney at Law****
>
> Fitzgerald & Green****
>
> 1010 E. Union St. Ste. 206****
>
> Pasadena, CA 91106****
>
> Tel: 626-449-8433****
>
> Fax: 626-449-0565****
>
> pat@fitzgreenlaw.com****
>
> ** **
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *Holly Roark
> *Sent:* Wednesday, November 07, 2012 2:56 PM
> *To:* Strictly Bankruptcy Issues; cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] Question re marital settlement agreement, alimony,
> statute of limitations, and fraudulent transfers [2 Attachments]****
>
> ** **
>
> ****
>
> *[Attachment(s) from Holly Roark included
> below]* ****
>
> In light of the attached cases, Mejia v. Reed, 31 Cal.4th 657, and
> Beverly v. Wolkowitz, 374 B.R. 221 (hello, Dennis McGoldrick!), a trustee
> can avoid a transfer of assets pursuant to a Marital Settlement Agreement
> as "fraudulent transfers" if the elements are met. ****
>
> ****
>
> I have many questions, so please bear with me.****
>
> ****
>
> 1) What if a transfer of property to nondebtor ex-spouse pursuant to the
> MSA was outside the 4 year statute of limitations? Under Cal. Civ. Code
> 3439.09(c), the statute of limitations can be extended to 7 years. I did
> not find any cases in the 9th Circuit where CC 3439.09(c) was implicated
> except with respect to a trust. If the transfer may have been a
> constructive fraud but is beyond the 4 year SOL under state law, is the BK
> trustee then also barred or are there some tricks up his sleeve with
> respect to this? I know 544 is referred to as the trustee's "strong arm
> powers" but I have yet to really understand this section.****
>
> ****
>
> 2) What if at the time of the divorce the Debtor was not insolvent but
> became so a year later and not as a result of any transfers but because of
> business reverses? Is the solvency at the time of transfer an absolute
> defense to fraudulent transfer unless intent can be shown? ****
>
> ****
>
> 3) What if during the 4 years prior to filing BK, the Debtor proceeded to
> make alimony payments under the MSA, while Debtor was insolvent. The
> alimony was agreed to by the parties and based on 30 years of marriage, but
> this written agreement was not filed with or blessed by the family
> law court. Would a trustee seek to avoid reasonable alimony payments to
> ex-(house)wife of 30 years because Debtor was insolvent during that time?*
> ***
>
> ****
>
> Any articles on these issues you can point me to would be much appreciated.
> ****
>
> ****
>
> Holly Roark****
>
> holly@roarklawoffices.com****
>
> www.roarklawoffices.com****
>
> Central District of California****
>
> Consumer Bankruptcy Attorney****
>
> 1875 Century Park East, Suite 600****
>
> Los Angeles, CA 90067****
>
> T (310) 553-2600****
>
> F (310) 553-2601****
>
> ****
>
> ** **
>
> ****
>
>
>
Hi Patrick,There may be a Beverly situation, though unitentional. I am thinking it's outside the SOL, though.Holly Roark
holly@roarklawoffices.com
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
On Thu, Nov 8, 2012 at 10:42 AM, Patrick T. Green <pat@fitzgreenlaw.com> wrote:
Holly:
The post was migrated from Yahoo.