Internal Revenue Code:Sec. 71. Alimony and separate maintenance payments
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Location in Internal Revenue Code
TITLE 26 - INTERNAL REVENUE CODE
Subtitle A - Income Taxes
CHAPTER 1 - NORMAL TAXES AND SURTAXES
Subchapter B - Computation of Taxable Income
PART II - ITEMS SPECIFICALLY INCLUDED IN GROSS INCOME
Statute
Sec. 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.
Sources
(Aug. 16, 1954, ch. 736, 68A Stat. 19; Pub. L. 98-369, div. A,
title IV, Sec. 422(a), July 18, 1984, 98 Stat. 795; Pub. L. 99-514,
title XVIII, Sec. 1843(a)-(c)(1), (d), Oct. 22, 1986, 100 Stat.
2853, 2855.)
Miscellaneous
AMENDMENTS
1986 - Subsec. (b)(1)(D). Pub. L. 99-514, Sec. 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, Sec. 1843(d), substituted
''specified in subparagraph (A)'' for ''specified in paragraph
(1)''.
Subsec. (f). Pub. L. 99-514, Sec. 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, Sec. 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 1986 AMENDMENT; TRANSITIONAL RULE
Section 1843(c)(2), (3) of Pub. L. 99-514 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 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 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
Section 422(e) of Pub. L. 98-369, as amended by Pub. L. 99-514,
Sec. 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 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 (Sec. 1101-1147 and 1171-1177) or title
XVIII (Sec. 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.
References
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 121, 152, 215, 219, 220,
382, 408 of this title.
