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Subject Author Date
Separation Agreement R. Pile 03-24-2008
Posted by R. Pile on March 24, 2008, 2:44 pm
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A husband and wife have a separation agreement under which he is
making monthly payments to her. I understand that such payments are
treated as alimony - deductible by the payer, taxable to the payee.
The husband has now violated some provision of the agreement and her
lawyer is claiming that the entire agreement is now vacated and all
payments revert to voluntary status, neither deductible nor taxable.

Correct? If some non-monetary provision is ignored, but the monthly
checks keep coming, are they still treated as alimony - even if the
agreement is declared invalid? (This matter is before a judge, so the
question may eventually become moot.)

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Posted by Phil Marti on March 24, 2008, 3:56 pm
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 "R. Pile" wrote:

> A husband and wife have a separation agreement under which he is
> making monthly payments to her. I understand that such payments are
> treated as alimony - deductible by the payer, taxable to the payee.
> The husband has now violated some provision of the agreement and her
> lawyer is claiming that the entire agreement is now vacated and all
> payments revert to voluntary status, neither deductible nor taxable.
>
> Correct? If some non-monetary provision is ignored, but the monthly
> checks keep coming, are they still treated as alimony - even if the
> agreement is declared invalid?

It looks to me like the ongoing validity of his obligation under the
agreement is the key. Tax law (IRC 71) doesn't require anything other than
payment "under a divorce or separation instrument."

> (This matter is before a judge, so the
> question may eventually become moot.)

State law is going to decide whether he's liable for the payments or not.
Based on my cursory reading of the statute and general cussedness, since
she's (through counsel) saying further payments are voluntary, I'd stop the
payments until the court settled things. I do not recommend that course to
him, though. He should talk to his lawyer, who should check up on both the
family and tax law sides of the question.

Sure hope there are no children caught in the middle of these two.

--
Phil Marti
Clarksburg, MD

--
<< ------------------------------------------------------- >>
<< The foregoing was not intended or written to be used, >>
<< nor can it used, for the purpose of avoiding penalties >>
<< that may be imposed upon the taxpayer. >>
<< >>
<< The Charter and the Guidelines for submitting posts >>
<< to this newsgroup as well as our anti-spamming policy >>
<< are at www.asktax.org. >>
<< Copyright (2007) - All rights reserved. >>
<< ------------------------------------------------------- >>

Posted by PeterL on March 24, 2008, 5:25 pm
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> A husband and wife have a separation agreement under which he is
> making monthly payments to her.  I understand that such payments are
> treated as alimony - deductible by the payer, taxable to the payee.
> The husband has now violated some provision of the agreement and her
> lawyer is claiming that the entire agreement is now vacated and all
> payments revert to voluntary status, neither deductible nor taxable.
>
> Correct? If some non-monetary provision is ignored, but the monthly
> checks keep coming, are they still treated as alimony - even if the
> agreement is declared invalid?  (This matter is before a judge, so the
> question may eventually become moot.)
>


This is a legal question and I am not a lawyer. But it seems that the
other lawyer claims that because some part of the agreement is
violated, then supposedly the monthly payment has somehow become
"voluntary". If this is indeed correct, then prior to this alleged
violation the payments were still alimony. So depending on the date
of said violation, any prior payments would still be alimony. And as
the other poster said, if it's voluntary than there is nothing to
compel payment of any kind.

--
<< ------------------------------------------------------- >>
<< The foregoing was not intended or written to be used, >>
<< nor can it used, for the purpose of avoiding penalties >>
<< that may be imposed upon the taxpayer. >>
<< >>
<< The Charter and the Guidelines for submitting posts >>
<< to this newsgroup as well as our anti-spamming policy >>
<< are at www.asktax.org. >>
<< Copyright (2007) - All rights reserved. >>
<< ------------------------------------------------------- >>

Posted by Paul Thomas, CPA on March 24, 2008, 5:57 pm
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>> A husband and wife have a separation agreement under which he is
>> making monthly payments to her. I understand that such payments are
>> treated as alimony - deductible by the payer, taxable to the payee.
>> The husband has now violated some provision of the agreement and her
>> lawyer is claiming that the entire agreement is now vacated and all
>> payments revert to voluntary status, neither deductible nor taxable.
>>
>> Correct? If some non-monetary provision is ignored, but the monthly
>> checks keep coming, are they still treated as alimony - even if the
>> agreement is declared invalid? (This matter is before a judge, so the
>> question may eventually become moot.)
>>
>
>
> This is a legal question and I am not a lawyer. But it seems that the
> other lawyer claims that because some part of the agreement is
> violated, then supposedly the monthly payment has somehow become
> "voluntary". If this is indeed correct, then prior to this alleged
> violation the payments were still alimony. So depending on the date
> of said violation, any prior payments would still be alimony. And as
> the other poster said, if it's voluntary than there is nothing to
> compel payment of any kind.






And her lawyer, being a lawyer, might be trying to get the husband to stop
payment so that can be waived in front of the judge or jury as proof of how
evil the husband is.


He should consult with his attorney ASAP as already mentioned.



--
Paul A. Thomas, CPA
Athens, Georgia

--
<< ------------------------------------------------------- >>
<< The foregoing was not intended or written to be used, >>
<< nor can it used, for the purpose of avoiding penalties >>
<< that may be imposed upon the taxpayer. >>
<< >>
<< The Charter and the Guidelines for submitting posts >>
<< to this newsgroup as well as our anti-spamming policy >>
<< are at www.asktax.org. >>
<< Copyright (2007) - All rights reserved. >>
<< ------------------------------------------------------- >>

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