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Section 71(b)(1) defines the term "alimony or separate
maintenance payment" to mean any cash payment 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 sepa-
rate 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.
Section 71(c)(1) provides that section 71(a) generally is
not to apply to that part of any payment that 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. In applying section
71(c)(1), child support generally may not be inferred from
intent, surrounding circumstances, or other subjective criteria,
see Commissioner v. Lester, 366 U.S. 299, 306 (1961), except as
specified in section 71(c)(2). The exception prescribed in
section 71(c)(2) is that if any amount specified in the divorce
or separation instrument is to be reduced (1) upon the occurrence
of a contingency specified in that instrument relating to a child
(e.g., attaining a specified age, marrying, dying, leaving
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Last modified: May 25, 2011