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applicability upon the death of Ms. Kean, and the general rule
that divorce proceedings abate with the death of either party
would continue to apply. At this point, the New Jersey court
would no longer have jurisdiction to modify the support order.
Mr. Kean would have received sole custody of the children if
Ms. Kean had died during the pendency of the divorce proceeding.
Consequently, and in contrast to the situation in Gonzales v.
Commissioner, supra, even with jurisdiction there would be no
logical reason for the New Jersey court to order that Mr. Kean
continue to pay support or for the New Jersey court to order any
payment as a substitute for the unallocated support that Mr. Kean
paid during the pendency of the divorce proceeding.
In summary, based upon the general rule that divorce
proceedings terminate with the death of either spouse, and absent
unusual circumstances, the New Jersey court would not have had
continuing jurisdiction or reason to enforce or modify any
support order upon Ms. Kean’s death. Even though the series of
orders was both temporary and modifiable during the divorce
proceeding, upon Ms. Kean’s death, the divorce proceeding would
have abated, and Mr. Kean’s obligations under the orders would
have terminated.
Since the disputed payments would have terminated at Ms.
Kean’s death, they meet the requirements of section 71(b)(1)(D).
Consequently, the disputed payments are alimony for Federal
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Last modified: May 25, 2011