Geralyn M. Randich - Page 17

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          previously stated, alimony or separate maintenance payments are             
          defined by section 71(b), which provides in part:                           
                    SEC. 71(b).  Alimony or Separate Maintenance Payments             
               Defined.--For purposes of this section–-                               
                         (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 includible 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.           
               It is clear that in this case both the temporary order for             
          maintenance and support and the judgment for dissolution meet the           
          criteria of section 71(b), and payments made therefore are                  
          alimony.                                                                    
               However, section 71(c)(1) provides that section 71(a) “shall           
          not apply to that part of any payment which the terms of the                
          divorce or separation instrument fix * * * as a sum which is                
          payable for the support of children of the payor spouse.”                   





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