Property your spouse put in someone else’s name before the divorce was filed is generally not divided in Georgia unless you prove the transfer was fraudulent.
You Have to Prove It
In Armour v. Holcombe, 288 Ga. 50 (2010), a husband deeded a house back to his mother months before his wife filed. The wife added the mother to the case but dropped her fraudulent-transfer claim at trial, and the jury awarded her $41,500 of the sale proceeds anyway. The Georgia Supreme Court reversed: “The law of contracts and titles is respected in divorce cases.”
Three Kinds of Voidable Transfer
Georgia’s Uniform Voidable Transactions Act reaches (1) a transfer made “[w]ith actual intent to hinder, delay, or defraud any creditor,” OCGA 18-2-74(a)(1); (2) one made without “a reasonably equivalent value” by someone left with unreasonably small assets for a business or transaction, facing debts beyond the ability to pay, or insolvent, OCGA 18-2-74(a)(2) and 18-2-75(a); and (3) one made, while insolvent, to an insider who had reasonable cause to believe it, to pay an existing debt, OCGA 18-2-75(b). OCGA 18-2-74 applies whenever the creditor’s claim arose, but 18-2-75 protects only a creditor “whose claim arose before the transfer was made.”
Proving Intent
OCGA 18-2-74(b) lists what courts call badges of fraud, such as a transfer to an insider, whether it was concealed, and whether the debtor “retained possession or control.”
In Gibson v. Gibson, 301 Ga. 622 (2017), a husband moved about $3.2 million into two trusts with his mother as trustee, without telling his wife. The trial court found he had not actively concealed the transfers, kept control of the assets, become insolvent, or absconded, and the Supreme Court upheld its finding of no fraud. It sent the case back to redistribute the marital assets, including about $1.3 million in two accounts never properly titled to the trustee.
Transfers to relatives, remedies, and time limits each have their own post.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!