- 4 - Petitioner contends that because the issue of spousal support was not waived by either party, petitioner was in fact obligated to pay for Ms. Anderson's expenses. Petitioner asserts that while circumstances prevented the divorce court from ascertaining a set amount for Ms. Anderson's support, petitioner was expected and required to provide for her financially. We are concerned here with the provisions of section 71(b)(2). Clearly the decree does not contain any requirement that petitioner make alimony or separate maintenance payments. The reservation of the spousal support by the divorce decree is not enough by itself to create a legally enforceable obligation. Brooks v. Commissioner, T.C. Memo. 1983-304. Thus, neither section 71(b)(2)(A) nor (C) applies. Moreover, there is no separation agreement setting forth support payments. Indeed, it is clear that there was no agreement, whether written or not. Section 71(b)(2)(B) does not apply. Petitioner contends that under Jacklin v. Commissioner, 79 T.C. 340 (1982), and Friedland v. Commissioner, T.C. Memo. 1982- 549, the divorce decree need not provide a set amount of payment to create a support obligation. We agree.3 In each of those cases, however, a written instrument did exist that created a legally enforceable obligation upon the husband to either make certain payments or maintain a certain standard of living for the 3 These cases interpret a former version of sec. 71. The statute, as amended, still requires a decree or a written instrument and requires that the payments be made under such decree or written instrument.Page: Previous 1 2 3 4 5 Next
Last modified: May 25, 2011