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spouse [Ms. Peterson] and there [was] no liability to make any
payment (in cash or property) as a substitute for such payments
after the death of the payee spouse.” Id. If petitioner were
obligated to continue making unallocated support payments under
the pendente lite order after the hypothetical death of Ms.
Peterson, then such payments would be nondeductible child support
payments instead of deductible alimony or separate maintenance
payments. “Whether such obligation exists may be determined by
the terms of the applicable instrument, or if the instrument is
silent on the matter, by looking to State law.” Kean v.
Commissioner, T.C. Memo. 2003-163.
The pendente lite order issued by the New Jersey court did
not indicate whether the unallocated support payments would
terminate upon Ms. Peterson’s death. Hence, we turn to New
Jersey law to ascertain whether it would imply a postdeath legal
obligation.
New Jersey has a support statute authorizing courts to award
alimony or child support, either pending the divorce suit or
after final judgment. This statute provides in relevant part:
Pending any matrimonial action brought in this
State * * * the court may make such order as to the
alimony or maintenance of the parties, and also as to
the care, custody, education and maintenance of the
children * * *. * * * Orders so made may be revised and
altered by the court from time to time as circumstances
may require. [N.J. Stat. Ann. sec. 2A:34-23 (West
2003); emphasis added.]
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