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Avoiding Alimony Tax Pitfalls
The purpose of making payments to a spouse or former spouse as alimony under the Internal Revenue Code (the Code) is so that such payments will be taxable to the payee and deductible to the payor. For any stream of payments to be alimony as defined by the Code, payments must meet the following rules:
- The payment must be made by cash, check, money order or the like, on behalf of the payee spouse or former spouse.
- It must be made pursuant to a divorce or separation instrument.
- The instrument cannot designate the payments as not taxable to the payee and not deductible to the payor.
- In the case of individuals divorced or legally separated, the parties cannot be members of the same household.
- The liability to make such payments must cease on the death of the payee.
- The payment may not be fixed as payable for support of the payor's children.
- The parties, if married, cannot file a joint return.
In addition to the seven rules to make a stream of payments alimony, the payments cannot be front-loaded and decrease by more than a permissible amount during the first three post separation years. This arrangement can cause recapture of the excess payments to the payor in the third post-separation year.
Liability for Payments Must Cease on Death of Payee
In order to qualify as alimony, the liability for payments must not only cease on the death of the payee spouse, but no payments (in cash or property) may be made after the death of the payee spouse, or be made as a substitute for the continuation of the pre-death payments. To the extent that one or more payments are to begin, increase in amount, or become accelerated in time as a result of the death of payee spouse, such payments may be treated as a substitute for the continuation of payments terminating on the death of the payee spouse which would otherwise qualify as alimony or separate maintenance payments. If an alimony trust is created, there is no restriction on the continuation of payments or for any substitute for such payments from the trust after the death of the payee spouse or former spouse.
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