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In Gonzales v. Commissioner, T.C. Memo. 1999-332, we held
that the requirement of section 71(b)(1)(D) had not been met and,
therefore, the unallocated support payments were not alimony or
separate maintenance payments. In so holding, we noted that New
Jersey statutes did not say whether unallocated support payments
terminated on the death of the payee spouse. We nonetheless
noted that a New Jersey court order regarding unallocated support
payments is modifiable and that, under the particular facts of
Gonzales, the death of the payee spouse would not have
necessarily relieved the noncustodial payor spouse of his
obligation to make unallocated support payments. We posited that
a court might have reduced the noncustodial payor spouse’s
payments rather than terminate them altogether.
Contrasting Gonzales v. Commissioner, supra, is Kean v.
Commissioner, supra. In the latter case, the Commissioner
argued, and we agreed, that the unallocated support payments made
pursuant to a New Jersey court order were alimony or separate
maintenance payments. We noted, as a distinguishing factor, that
the payor spouse had joint custody during the period when the
unallocated support payments were made. We further noted the
general rule that divorce proceedings terminate with the death of
either spouse. As such, the payor spouse in Kean would have
received sole custody of the children if the payee spouse had
died during the pendency of the divorce proceeding, and there
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