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Irene filed separate Federal income tax returns for the years in
question.
We must consider whether the payments by Edward to or on
behalf of Irene during 1988 were made under a written separation
agreement. Irene contends that the payments made to her by
Edward during 1988, prior to entry of the circuit court orders,4
are not includable in her income because a written separation
agreement is a prerequisite to includability, and no such written
agreement existed. Section 71(a)(2) provides in pertinent part:
(2) Written separation agreement.--If a wife is
separated from her husband and there is a written
separation agreement executed after the date of the
enactment of this title, the wife's gross income
includes periodic payments (whether or not made at
regular intervals) received after such agreement is
executed which are made under such agreement and
because of the marital or family relationship (or which
are attributable to property transferred, in trust or
otherwise, under such agreement and because of such
relationship.) This paragraph shall not apply if the
husband and wife make a single return jointly.
On March 17, 1983, both parties signed a written agreement
which addressed the issue of support payments for Irene. The
agreement, among other things, required that Edward pay Irene the
sum of $10,000 per month for her maintenance, such payments to be
indexed to the National Consumer Price Index for all Urban
Consumers. Edward also agreed to pay tuition and expenses
4On Oct. 3, 1989, the circuit court ordered Edward to pay
$29,000 per month in temporary maintenance to Irene, retroactive
to Feb. 1, 1989. On Dec. 15, 1989, the court corrected a calcu-
lation in its prior order, resetting monthly maintenance at
$26,700.
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