Thomas B. Benham - Page 7

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            maintenance.  But respondent overlooks language in the very same                           
            provision that states:                                                                     
                  If the spouses are not legally separated under a decree                              
                  of divorce or separate maintenance, a payment under a                                
                  written separation agreement or a decree described in                                
                  section 71(b)(2)(C) may qualify as an alimony or                                     
                  separate maintenance payment notwithstanding that the                                
                  payor and payee are members of the same household at                                 
                  the time the payment is made.                                                        
                  Petitioner argues, and we agree, that his payments were made                         
            under a written separation agreement.                                                      
                  The term "written separation agreement" is not defined by                            
            the Code, the legislative history, or applicable regulations.                              
            Jacklin v. Commissioner, 79 T.C. 340, 346 (1982); Leventhal v.                             
            Commissioner, T.C. Memo. 2000-92; Keegan v. Commissioner, T.C.                             
            Memo. 1997-359.  We have stated, however, that a written                                   
            separation agreement is a clear, written statement of the terms                            
            of support for separated parties.  See Bogard v. Commissioner, 59                          
            T.C. 97, 101 (1972).  It must be a writing that constitutes an                             
            agreement.  See Grant v. Commissioner, 84 T.C. 809, 823 (1985),                            
            affd. per curiam without published opinion 800 F.2d 260 (4th Cir.                          
            1986).  An agreement requires mutual assent or a meeting of the                            
            minds.  See Kronish v. Commissioner, 90 T.C. 684, 693 (1988).                              
            But a written agreement does not have to be legally enforceable.                           
            See Richardson v. Commissioner, T.C. Memo. 1995-554, affd. 125                             
            F.3d 551, 554 (7th Cir. 1997).  It is sufficient that it was                               

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