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(1) In general.–-The term “alimony or separate
maintenance payment” means any payment in cash if–
(A) such payment is received by (or on
behalf of) a spouse under a divorce or
separation instrument,
(B) the divorce or separation instrument
does not designate such payment as a payment
which is not includable in gross income under
this section and not allowable as a deduction
under section 215,
(C) in the case of an individual legally
separated from his spouse under a decree of divorce
or of separate maintenance, the payee spouse and
the payor spouse are not members of the same
household at the time such payment is made, and
(D) there is no liability to make any such
payment for any period after the death of the payee
spouse and there is no liability to make any
payment (in cash or property) as a substitute for
such payments after the death of the payee spouse.
(2) Divorce or separation instrument.-–The term
“divorce or separation instrument” means–
(A) a decree of divorce or separate maintenance
or a written instrument incident to such a decree,
(B) a written separation agreement, or
(C) a decree (not described in subparagraph
(A)) requiring a spouse to make payments for the
support or maintenance of the other spouse.
Petitioner contends that, because she and her former husband
were not legally separated during 2000, the payment she received
from her former husband is not alimony. We do not agree. The
relevant inquiry is whether the payment was made pursuant to a
written separation agreement within the meaning of section
71(b)(2)(B).
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Last modified: May 25, 2011