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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.
We look to the terms of the applicable instrument, or to
State law, if the instrument is silent on the matter. See Kean
v. Commissioner, T.C. Memo. 2003-163. Under New York law, child
support is “a sum to be paid pursuant to court order or decree by
either or both parents or pursuant to valid agreement between the
parties for care, maintenance and education of any unemancipated
child under the age of twenty-one years.” N.Y. Dom. Rel. Law
secs. 236, 240 (McKinney 2003). In contrast, an award of
“maintenance” shall terminate upon the death of either party in
an action for divorce or upon the recipient’s valid or invalid
marriage. Id. sec. 236. Upon application of either party, a New
York court may annul or modify any prior order or judgment as to
maintenance or child support. Id.
In the present case, Ms. McSkimming had physical custody of
the children during the year in issue. Moreover, she had
remarried before 2000, and pursuant to the oral stipulation of
June 28, 1996, one-half of any balance of maintenance payments
became due at the time of her remarriage. Petitioner
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