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.