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§ 71. Alimony and separate maintenance payments

Version history — every release point where this text changed

Release point 115-171 · current through 05/09/2018

§ 71.

Alimony and separate maintenance payments

(a)

General rule

Gross income includes amounts received as alimony or separate maintenance payments.

(b)

Alimony or separate maintenance payments defined

For purposes of this section—

(1)

In general

The term “alimony or separate maintenance payment” means any payment in cash if—

(A)

such payment is received by (or on behalf of) a spouse under a divorce or separation instrument,

(B)

the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215,

(C)

in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and

(D)

there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.

(2)

Divorce or separation instrument

The term “divorce or separation instrument” means—

(A)

a decree of divorce or separate maintenance or a written instrument incident to such a decree,

(B)

a written separation agreement, or

(C)

a decree (not described in subparagraph (A)) requiring a spouse to make payments for the support or maintenance of the other spouse.

(c)

Payments to support children

(1)

In general

Subsection (a) shall not apply to that part of any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payor spouse.

(2)

Treatment of certain reductions related to contingencies involving child

For purposes of paragraph (1), if any amount specified in the instrument will be reduced—

(A)

on the happening of a contingency specified in the instrument relating to a child (such as attaining a specified age, marrying, dying, leaving school, or a similar contingency), or

(B)

at a time which can clearly be associated with a contingency of a kind specified in subparagraph (A),

an amount equal to the amount of such reduction will be treated as an amount fixed as payable for the support of children of the payor spouse.

(3)

Special rule where payment is less than amount specified in instrument

For purposes of this subsection, if any payment is less than the amount specified in the instrument, then so much of such payment as does not exceed the sum payable for support shall be considered a payment for such support.

(d)

Spouse

For purposes of this section, the term “spouse” includes a former spouse.

(e)

Exception for joint returns

This section and section 215 shall not apply if the spouses make a joint return with each other.

(f)

Recomputation where excess front-loading of alimony payments

(1)

In general

If there are excess alimony payments—

(A)

the payor spouse shall include the amount of such excess payments in gross income for the payor spouse’s taxable year beginning in the 3rd post-separation year, and

(B)

the payee spouse shall be allowed a deduction in computing adjusted gross income for the amount of such excess payments for the payee’s taxable year beginning in the 3rd post-separation year.

(2)

Excess alimony payments

For purposes of this subsection, the term “excess alimony payments” mean the sum of—

(A)

the excess payments for the 1st post-separation year, and

(B)

the excess payments for the 2nd post-separation year.

(3)

Excess payments for 1st post-separation year

For purposes of this subsection, the amount of the excess payments for the 1st post-separation year is the excess (if any) of—

(A)

the amount of the alimony or separate maintenance payments paid by the payor spouse during the 1st post-separation year, over

(B)

the sum of—

(i)

the average of—

(I)

the alimony or separate maintenance payments paid by the payor spouse during the 2nd post-separation year, reduced by the excess payments for the 2nd post-separation year, and

(II)

the alimony or separate maintenance payments paid by the payor spouse during the 3rd post-separation year, plus

(ii)

$15,000.

(4)

Excess payments for 2nd post-separation year

For purposes of this subsection, the amount of the excess payments for the 2nd post-separation year is the excess (if any) of—

(A)

the amount of the alimony or separate maintenance payments paid by the payor spouse during the 2nd post-separation year, over

(B)

the sum of—

(i)

the amount of the alimony or separate maintenance payments paid by the payor spouse during the 3rd post-separation year, plus

(ii)

$15,000.

(5)

Exceptions

(A)
Where payment ceases by reason of death or remarriage

Paragraph (1) shall not apply if—

(i)

either spouse dies before the close of the 3rd post-separation year, or the payee spouse remarries before the close of the 3rd post-separation year, and

(ii)

the alimony or separate maintenance payments cease by reason of such death or remarriage.

(B)
Support payments

For purposes of this subsection, the term “alimony or separate maintenance payment” shall not include any payment received under a decree described in subsection (b)(2)(C).

(C)
Fluctuating payments not within control of payor spouse

For purposes of this subsection, the term “alimony or separate maintenance payment” shall not include any payment to the extent it is made pursuant to a continuing liability (over a period of not less than 3 years) to pay a fixed portion or portions of the income from a business or property or from compensation for employment or self-employment.

(6)

Post-separation years

For purposes of this subsection, the term “1st post-separation years” means the 1st calendar year in which the payor spouse paid to the payee spouse alimony or separate maintenance payments to which this section applies. The 2nd and 3rd post-separation years shall be the 1st and 2nd succeeding calendar years, respectively.

(g)

Cross references

(1)

For deduction of alimony or separate maintenance payments, see section 215.

(2)

For taxable status of income of an estate or trust in the case of divorce, etc., see section 682.

Source(Aug. 16, 1954, ch. 736, 68A Stat. 19; Pub. L. 98–369, div. A, title IV, § 422(a),
July 18, 1984
, 98 Stat. 795; Pub. L. 99–514, title XVIII, § 1843(a)–(c)(1), (d),
Oct. 22, 1986
, 100 Stat. 2853, 2855.)
Notes

Repeal of Section

Pub. L. 115–97, title I, § 11051(b)(1)(B), (c),
Dec. 22, 2017
, 131 Stat. 2089, 2090, provided that, applicable to any divorce or separation instrument (as defined in former subsec. (b)(2) of this section as in effect before
Dec. 22, 2017
) executed after
Dec. 31, 2018
, and to such instruments executed on or before
Dec. 31, 2018
, and modified after
Dec. 31, 2018
, if the modification expressly provides that the amendment made by section 11051 of Pub. L. 115–97 applies to such modification, this section is repealed.

Amendments

1986—Subsec. (b)(1)(D). Pub. L. 99–514, § 1843(b), struck out “(and the divorce or separation instrument states that there is no such liability)” after “for such payments after the death of the payee spouse”.
Subsec. (c)(2)(B). Pub. L. 99–514, § 1843(d), substituted “specified in subparagraph (A)” for “specified in paragraph (1)”.
Subsec. (f). Pub. L. 99–514, § 1843(c)(1), amended subsec. (f) generally, substituting provisions for the recomputation of liability where there has been excess front-loading of alimony payments for provisions setting forth special rules to prevent excess front-loading of alimony payments.
Subsec. (g). Pub. L. 99–514, § 1843(a), added subsec. (g).
1984—Pub. L. 98–369 amended section generally, substituting present provisions for provisions which had declared in: subsec. (a), a general rule as to decree of divorce or separate maintenance in par. (1), written separation agreement in par. (2), and decree for support in par. (3); subsec. (b), payments to support minor children; subsec. (c), principal sum paid in installments, par. (1) stating a general rule and par. (2) the rule where period for payment is more than 10 years; subsec. (d), the rule for husband in case of transferred property; and subsec. (e), cross references to sections 7701(a)(17), 215, and 682.

Effective Date of Repeal

Repeal applicable to any divorce or separation instrument (as defined in former subsec. (b)(2) of this section as in effect before
Dec. 22, 2017
) executed after
Dec. 31, 2018
, and to such instruments executed on or before
Dec. 31, 2018
, and modified after
Dec. 31, 2018
if the modification expressly provides that the amendment made by section 11051 of Pub. L. 115–97 applies to such modification, see section 11051(c) of Pub. L. 115–97, set out as an Effective Date of 2017 Amendment note under section 61 of this title.

Effective Date of 1986 Amendment; Transitional Rule

Pub. L. 99–514, title XVIII, § 1843(c)(2), (3),
Oct. 22, 1986
, 100 Stat. 2854, 2855, provided that:
“(2)

Effective dates.—

“(A)

In general.—

The amendment made by paragraph (1) [amending this section] shall apply with respect to divorce or separation instruments (as defined in [former] section 71(b)(2)) of the Internal Revenue Code of 1986 executed after

December 31, 1986
.

“(B)

Modifications of instruments executed before
january 1, 1987
.—

The amendments made by paragraph (1) [amending this section] shall also apply to any divorce or separation instrument (as so defined) executed before

January 1, 1987
, but modified on or after such date if the modification expressly provides that the amendments made by paragraph (1) shall apply to such modification.

“(3)

Transitional rule.—

In the case of any instrument to which the amendment made by paragraph (1) [amending this section] does not apply, paragraph (2) of [former] section 71(f) of the Internal Revenue Code of 1954 [now 1986] (as in effect on the day before the date of the enactment of this Act [

Oct. 22, 1986
]) shall apply only with respect to the first 3 post-separation years.”

Effective Date of 1984 Amendment

Pub. L. 98–369, div. A, title IV, § 422(e),
July 18, 1984
, 98 Stat. 798, as amended by Pub. L. 99–514, § 2,
Oct. 22, 1986
, 100 Stat. 2095, provided that:
“(1)

In general.—

Except as otherwise provided in this subsection, the amendments made by this section [amending this section and sections 215, 219, 682, 6676, and 7701 of this title] shall apply with respect to divorce or separation instruments (as defined in [former] section 71(b)(2) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954], as amended by this section) executed after

December 31, 1984
.

“(2)

Modifications of instruments executed before
january 1, 1985
.—

The amendments made by this section shall also apply to any divorce or separation instrument (as so defined) executed before

January 1, 1985
, but modified on or after such date if the modification expressly provides that the amendments made by this section shall apply to such modification.

“(3)

Requirement of identification number.—

Section 215(c) of the Internal Revenue Code of 1986 (as amended by subsection (b)) and the amendments made by subsection (c) [amending section 6676 of this title] shall apply to payments made after

December 31, 1984
.”

Plan Amendments Not Required Until January 1, 1989

For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after
Jan. 1, 1989
, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title.

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