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payments, payable under the Divorce Judgment, are not alimony
because they will not terminate upon her death and that the 1995
and 1996 payments are, in effect, advancements on the pension
that would be payable to her when her former husband retired.
The Divorce Judgment, on which petitioner relies, was filed
on or about January 24, 1997, and does not apply to the payments
that she received pursuant to the Order in 1995 and 1996.
Regardless, petitioner’s reliance on the Divorce Judgment is
misplaced because the Divorce Judgment delineates separate
clauses for: (1) Support and maintenance payments that terminate
upon Leonard Kersh’s retirement and (2) pension payments pursuant
to a Qualified Domestic Relations Order that commence upon
Leonard Kersh’s retirement. The Divorce Judgment specifically
provided that the “maintenance obligation shall terminate” upon
Leonard Kersh’s retirement, and, thus, it does not continue after
petitioner’s death.
The Order is the relevant document during the years in
issue. The Order awards “temporary maintenance” payments, and,
pursuant to State law, the payments would have terminated upon
the death of either party. See N.Y. Dom. Rel. Law sec. 236B1.a
(1995). We conclude that the payments that petitioner received
in 1995 and 1996 pursuant to the Order are separate maintenance
payments and are gross income to petitioner under section 71(a).
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