SB144

ENGROSSED

By Senator Ward

A BILL TO BE ENTITLED AN ACT

Relating to the Alabama Fraudulent Transfer Act; to amend Section 8-9A-1 of the Code of the Alabama 1975; to provide that a transfer includes those transfers made pursuant to a divorce settlement or domestic settlement for purposes of the Alabama Fraudulent Transfer Act; to provide that to the extent necessary to effectuate the Legislature's intent, the Act shall be applied retroactively; and to clarify that this act is declaratory in nature and not intended to change existing law.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Section 8-9A-1 of the Code of Alabama 1975, is amended to read as follows:

§8-9A-1.

As used in this chapter, the following words have the following meanings:

"(1) AFFILIATE.

"a. A person who directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor, other than a person who holds the securities,

"1. As a fiduciary or agent without sole discretionary power to vote the securities; or

"2. Solely to secure a debt, if the person has not exercised the power to vote;

"b. A corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor or a person who directly or indirectly owns, controls, or holds, with power to vote, 20 percent or more of the outstanding voting securities of the debtor, other than a person who holds the securities,

"1. As a fiduciary or agent without sole power to vote the securities; or

"2. Solely to secure a debt, if the person has not in fact exercised the power to vote;

"c. A person whose business is operated by the debtor under a lease or other agreement or a person substantially all of whose assets are controlled by the debtor, or

"d. A person who operates the debtor's business under a lease or other agreement or controls substantially all of the debtor's assets.

"(2) ASSET. Property of a debtor, but the term does not include:

"a. Property to the extent it is encumbered by a valid lien;

"b. Property to the extent it is generally exempt under nonbankruptcy law; or

"c. An interest in property held in tenancy in common for life with cross contingent remainder to the survivor in fee to the extent it is not subject to process by a creditor holding a claim against only one tenant.

"(3) CLAIM. A right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured, and specifically shall include the nonpayment of child support pursuant to a court order.

"(4) CREDITOR. A person who has a claim.

"(5) DEBT. Liability on a claim.

"(6) DEBTOR. A person who is liable on a claim.

"(7) INCLUDES. Is not a limiting term.

"(8) INSIDER. Includes:

"a. If the debtor is an individual,

"1. A relative of the debtor or of a general partner of the debtor;

"2. A partnership in which the debtor is a general partner;

"3. A general partner in a partnership described in subparagraph 2; or

"4. A corporation of which the debtor is a director, officer, or person in control;

"b. If the debtor is a corporation,

"1. A director of the debtor;

"2. An officer of the debtor;

"3. A person in control of the debtor;

"4. A partnership in which the debtor is a general partner;

"5. A general partner in a partnership described in subparagraph 4; or

"6. A relative of a general partner, director, officer, or person in control of the debtor,

"c. If the debtor is a partnership,

"1. A general partner in the debtor;

"2. A relative of a general partner in, a general partner of, or a person in control of the debtor;

"3. Another partnership in which the debtor is a general partner;

"4. A general partner in a partnership described in subparagraph 3; or

"5. A person in control of the debtor.

"d. An affiliate, or an insider of an affiliate as if the affiliate were the debtor; and

"e. A managing agent of the debtor.

"(9) LIEN. A charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common law lien, or a statutory lien.

"(10) PERSON. An individual, partnership, corporation, association, organization, government, or governmental subdivision or agency, business trust, estate, trust, or any other legal or commercial entity.

"(11) PROPERTY. Both real and personal property, whether tangible or intangible, and any interest in property whether legal or equitable and includes anything that may be the subject of ownership.

"(12) RELATIVE. An individual related by consanguinity within the third degree as determined by the common law, a spouse, or an individual related to a spouse within the third degree as so determined, and includes an individual in an adoptive relationship within the third degree.

"(13) TRANSFER. Every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance. The term includes a transfer made pursuant to a divorce settlement or domestic settlement, whether or not the divorce settlement or domestic settlement, or the terms thereof, is approved by a court or incorporated into the terms of an order, judgment, or decree.

"(14) VALID LIEN. A lien that is effective against the holder of a judicial lien subsequently obtained by legal or equitable process or proceedings."

Section 2. The amendment to Section 8-9A-1, Code of Alabama 1975, made by Section 1 of this act providing that a transfer made pursuant to a divorce settlement or domestic settlement falls within the definition of transfer for purposes of the Uniform Fraudulent Transfer Act, is declaratory of, and does not constitute a change in, existing law. To the extent necessary to carry out the intent of the Legislature, this act shall be applied retroactively.

Section 3. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Fraud

Divorce

Code Amended