Georgia § 18-2-74 - Voidable transfer; determination of actual intent.

§ 18-2-74. Voidable transfer; determination of actual intent.

A transfer made or obligation incurred by a debtor is voidable 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: With actual intent to hinder, delay, or defraud any creditor of the debtor; or Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: 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 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. In determining actual intent under paragraph (1) of subsection (a) of this Code section, consideration may be given, among other factors, to whether: The transfer or obligation was to an insider; The debtor retained possession or control of the property transferred after the transfer; The transfer or obligation was disclosed or concealed; Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; The transfer was of substantially all the debtor's assets; The debtor absconded; The debtor removed or concealed assets; The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; The transfer occurred shortly before or shortly after a substantial debt was incurred; and The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. If a creditor is a successor or assignee, a right of action under subsection (a) of this Code section is automatically assigned to such successor or assignee. A creditor making a claim for relief under subsection (a) of this Code section has the burden of proving the elements of the claim for relief by a preponderance of the evidence. (Code 1981, § 18-2-74 , enacted by Ga. L. 2002, p. 141, § 3; Ga. L. 2015, p. 996, § 4A-1/SB 65.) Law reviews. - For article, "Self-Settled Asset Protection Trusts in Georgia," see 23 Ga. St. B.J. 17 (Feb. 2018).