§ 39-23.4. Transfers fraudulent as to present and future creditors.
§39‑23.4. Transfers fraudulent as to present and future creditors.
(a) A transfer made orobligation incurred by a debtor is fraudulent as to a creditor, whether thecreditor's claim arose before or after the transfer was made or the obligationwas incurred, if the debtor made the transfer or incurred the obligation:
(1) With intent tohinder, delay, or defraud any creditor of the debtor; or
(2) Without receiving areasonably equivalent value in exchange for the transfer or obligation, and thedebtor:
a. Was engaged or wasabout to engage in a business or a transaction for which the remaining assetsof the debtor were unreasonably small in relation to the business ortransaction; or
b. Intended to incur,or believed that the debtor would incur, debts beyond the debtor's ability topay as they became due.
(b) In determiningintent under subdivision (a)(1) of this section, consideration may be given,among other factors, to whether:
(1) The transfer orobligation was to an insider;
(2) The debtor retainedpossession or control of the property transferred after the transfer;
(3) The transfer orobligation was disclosed or concealed;
(4) Before the transferwas made or obligation was incurred, the debtor had been sued or threatenedwith suit;
(5) The transfer was ofsubstantially all the debtor's assets;
(6) The debtorabsconded;
(7) The debtor removedor concealed assets;
(8) The value of theconsideration received by the debtor was reasonably equivalent to the value ofthe asset transferred or the amount of the obligation incurred;
(9) The debtor wasinsolvent or became insolvent shortly after the transfer was made or theobligation was incurred;
(10) The transfer occurredshortly before or shortly after a substantial debt was incurred;
(11) The debtor transferredthe essential assets of the business to a lienor who transferred the assets toan insider of the debtor;
(12) The debtor made thetransfer or incurred the obligation without receiving a reasonably equivalentvalue in exchange for the transfer or obligation, and the debtor reasonablyshould have believed that the debtor would incur debts beyond the debtor'sability to pay as they became due; and
(13) The debtortransferred the assets in the course of legitimate estate or tax planning. (1997‑291,s. 2.)