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$1,000.00 per month as and for partial retroactive
support and this shall be for a period of six months.
The order did not apportion the $4,000 payments between child
support and alimony.
Based upon the record in this case, we find that the
payments made under the temporary order meet the definitional
requirements of section 71(b)(1). First, the payments were
received by petitioner under a divorce or separation instrument,
as defined in section 71(b)(2). Second, the instrument did not
designate the payments as not includable in gross income under
section 71 and not allowable as a deduction under section 215.
Third, petitioner was not a member of the same household as Mr.
Reed at the time of the payments.
The fourth requirement is that the obligation to make
payments ceases upon the death of the payee spouse. This
requirement may be met either by the terms of the instrument
itself, or by operation of State law. See Cunningham v.
Commissioner, T.C. Memo. 1994-474. The terms of the temporary
order do not satisfy this requirement, so we next examine whether
the obligation would cease by operation of law. At trial,
respondent assumed that Florida law governs petitioner’s right to
receive alimony payments under both the temporary order and the
final agreement. Petitioner did not dispute this assumption, and
we find nothing in the record to indicate that it was in error.
Therefore, we must decide the issue as we believe the highest
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