24 Mass. App. Ct. 946 | Mass. App. Ct. | 1987
The plaintiff, after filing a complaint for divorce in March ,1985, brought this action in the Superior Court in December, 1985, under G. L. c. 109A to set aside as fraudulent certain transfers of real estate. The transfers were made in 1977 and 1978 by the plaintiff’s husband to the two children of
The plaintiff claims protection as a “creditor” under G. L. c. 109A, § 1. That term is defined as “a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent." She urges that the conveyances without “fair consideration”, see c. 109A, § 3, created an unmatured claim which ripened in 1985 when she filed for divorce.
The parties were married in 1970, were separated for four months in 1976, and were reunited later that year. They lived together at the time of the challenged conveyances
A spouse in circumstances where divorce proceedings are “imminent” may qualify as a creditor under c. 109A and may “complain of conveyances designed to frustrate the right to alimony or assignment of property. ” DuMont v. Godbey, 382 Mass. 234, 237 (1981). Jorden v. Ball, 357 Mass. 468, 472 (1970). Marriage, alone, however, does not make a spouse a potential creditor under G. L. c. 109A, and divorce proceedings do not subject all transfers made during marriage to retrospective scrutiny under that statute.
Contrary to the plaintiff’s contention, recent developments do not support her claim. While the “interests of one spouse in the property of the other have been substantially increased upon the dissolution of a marriage by divorce”, Sullivan v. Burkin, 390 Mass. 864, 872 (1984), marriage does not preclude a spouse from making gifts of his or her property without the consent of the other. Nothing in that case
Judgment affirmed.
In her deposition, the plaintiff said the marriage was “wonderful” during this period.
The Sullivan case held that the value of the assets of an inter vivas trust, created or amended after the date of the decision (Janaury 23, 1984), as to which the grantor alone retained the power to direct the assets for his benefit, would be included in his estate for purposes of G. L. c. 191, § 15.