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discharge.25 Additionally, a bankruptcy trustee may be awarded a judgment against the debtor for the amount of the contributions.26 Finally, depending on the operative state law, creditors may be able to attach funds in certain retirement accounts that were placed therein by way of fraudulent transfers.27 CONCLUSION In summary, retirement investing has a powerful and, perhaps, underrated asset protection component. Indeed, the legal protections surrounding retirement contributions enable a debtor to navigate even the most difficult financial times, including bankruptcy, and maintain some form of long-term security. Nonetheless, creditors' attorneys should not turn a blind eye to a debtor's retirement contributions, particularly when their client is facing little to no satisfaction on valid claims. Rather, those contributions must be examined through the lens of fraudulent transfer law to ensure that the client is truly realizing all potential recovery from the debtor. Q 1 See infra notes 8-15 and accompanying text. 2 See Uniform Fraudulent Transfer Act, Prefatory Note. 3 E.g., 11 U.S.C. § 548(a) (2012); Va. Code Ann. § 55-80 (Repl. Vol. 2007 & Cum. Supp. 2011); id. § 55-81. 4 E.g., Craig Copeland, Employment-Based Retirement Plan Participation: Geographic Differences and Trends, 2010, EBRI ISSUE BRIEF no. 363, Oct. 2011, at 1, 9 fig. 1. 5 See, e.g., DEP'T OF THE TREASURY, I.R.S., INDI- VIDUAL RETIREMENT ARRANGEMENTS (IRAs): FOR USE IN PREPARING 2011 RETURNS 3 (2011); Lots of Benefits When You Set up an Employee Retirement Plan, IRS, http://www.irs.gov/retirement/sponsor/ article/0,,id=136475,00.html (last visited May 10, 2012). 6 See Bankruptcy Abuse Prevention and Consumer Protec- tion Act of 2005, 11 U.S.C. § 522 (2012); see also VA. CODE ANN. § 34-34(b) (Repl. Vol. 2011). 7 In re Lalchandani, 279 B.R. 880, 883 (Bankr. 1st Cir. 2002) ("In Patterson v. Shumate, 504 U.S. 753 (1992), the United States Supreme Court found that an anti-alien- ation provision contained in an ERISA-qualified pension plan constituted a restriction on transfer enforceable under "applicable nonbankruptcy law, " and, therefore, a debtor could exclude his interest in such a plan from property of the bankruptcy estate pursuant to § 541(c)(2) of the Bankruptcy Code.). 8 See generally Alson R. Martin, Creditors' and Debtors' Rights in Retirement Benefits: Developments Aſter the Bankruptcy Abuse Pre-vention and Consumer Protection Act of 2005, SM047 ALI-ABA 309 (2006) (discussing the various types of qualified retirement plans). 9 Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1056(d)(1) (2012) ("Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated. "). 10 Id.; e.g., Patterson v. Shumate, 504 U.S. 753, 759-60 (1992). However, there are two primary exceptions to ERISA's anti-alienation provision. First, under a qualified domestic relations order the benefits of the pension plan can be assigned or alienated. 29 U.S.C. § 1056(d)(3) (A); see also I.R.C. §401(a)(13)(B) (2012). Second, the anti-alienation provision does not protect against the col- lection of federal tax through federal tax liens. 29 U.S.C. § 1056(d)(2); see also I.R.C. §401(a)(13)(A). 11 Te benefit of an asset being excluded from the bank- ruptcy estate is that the asset will not be liquidated to satisfy the claims of creditors. See, e.g., Patterson, 504 U.S. at 755, 758. 12 THEODORE G. GERTZ, DAVID W. NYBERG, SUSAN G. BERMAN, RETIREMENT PLAN PROTECTION 5 (2007), available at http://www.shefskylaw.com/66BE91/ assets/files/Documents/Retirement%20Plans%20and%20 Creditor%20Protection11.pdf. 13 11 U.S.C. § 522(b)(3)(C) (2012). 14 Id. § 522(n). 15 Virginia has adopted the exemptions found in the Bankruptcy Code. Va. Code Ann. § 34-34(b) (Repl. Vol. 2011); In re Diaz, No. 08–13715–SSM, 2010 WL 2425960, at *2 (Bankr. E.D. Va. June 10, 2010). 16 E.g., Tavenner v. Smoot, 257 F.3d 401 (4th Cir. 2001). In Tavenner v. Smoot, aſter filing for bankruptcy the defen- dant transferred funds received from a settlement pursu- ant to the Federal Employer's Liability ACT ("FELA") into a closely held corporation to defraud his creditors. Id. at 405. Virginia law creates a statutory exemption for funds recovered from a personal injury action. Id. at 406 (citation omitted). Terefore, if the defendant had leſt the funds from the FELA suit in his account, they would have been exempt under Virginia law. Id. However, the Fourth Circuit adopted the majority position, stating that fraudulent "transfers of exemptible property are ame- nable to avoidance and recovery actions by bankruptcy trustees. ..." Id. Since the defendant transferred the funds from the FELA settlement with the intent to defraud his creditors, the trustee could receive the funds. Id. at 409. 17 11 U.S.C. § 548(a) (2012); Va. Code Ann. § 55-80 (Repl. Vol. 2007 & Cum. Supp. 2011); id. § 55-81. For a discussion on the difference between the majority law consideration standard of "reasonably equivalent value" and the Virginia standard of "consideration deemed valuable in law, " see Isaac A. McBeth & Landon C. Davis III, Bulls, Bears, and Pigs: Revisiting the Legal Minefield of Virginia Fraudulent Transfer Law, 46 U. RICH. L. REV. 273, 295-98 (2011). 18 See, e.g., Matter of Loomer, 222 B.R. 618, 622 (Bankr. D. Neb. 1998). 19 Id. 20 See Duncan E. Osborne, Asset Protection: Trust Planning, ST041 ALI-ABA 1, 12 (2012) ("While statutes provide the general legal framework, case law usually supplies the guidance necessary to determine whether a transfer was made sufficiently in advance of a ripening creditor obliga- tion as to be considered prudent and permitted planning rather than a fraudulent transfer. "). 21 Id. 22 222 B.R. at 623. 23 Id. at 622. 24 Id. 25 11 U.S.C. § 727(a)(2). 26 See, e.g., 222 B.R. at 623. 27 See, e.g., Gilchinsky v. Nat'l Westminster Bank N.J., 159 N.J. 463, 473, 732 A.2d 482, 487 (1999). Isaac McBeth is an associate in the Richmond office of the law firm of Hirschler Fleischer PC, practicing in the areas of commercial litigation and bankruptcy litigation. He received a bachelor's degree in legal studies from American Military University in 2008 and a J.D. from the University of Richmond in 2011. Amanda Blair received a bachelor's degree in sociology with high distinction from the University of Virginia in 2006. She attended law school at the University of Richmond and graduated summa cum laude in 2012. While enrolled in law school, she served on the executive board of the University of Richmond Law Review as managing editor and was a member of the Walter Scott McNeil Law Society as well as the moot court board. 18 t VBA JOURNAL Landon C. Davis III works at Parrish, Houck & Snead, PLC, in his native Fredericksburg, where he maintains a general practice focused on commercial litigation and transactional law. He received a bachelor's degree in economics from the University of Mary Washington in 2008. In May 2011, he earned an M.B.A. and law degree from the University of Richmond. ABOUT THE AUTHORS