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New Jersey State law is clear that a spouse’s obligation
pursuant to a divorce or separation instrument to pay attorney’s
fees will survive the death of an ex-spouse. Williams v.
Williams, 59 N.J. 229 (1971). The court in Williams concluded
that although “counsel fees and costs are awarded to the
litigant, they properly ‘belong’ to counsel”. Id. at 234.
Therefore, an attorney has a vested interest in the receipt of
fees and costs from the payor spouse irrespective of whether or
not the payee spouse dies before entry of a final divorce decree.
Furthermore, this Court has consistently held that when
State law provides that a spouse’s obligation to pay attorney’s
fees survives the death of the payee spouse, and the divorce or
separation agreement is otherwise silent, then payment of
attorney’s fees and costs will not constitute alimony pursuant to
section 71(b). See, e.g., Zinsmeister v. Commissioner, T.C.
Memo. 2000-364, affd. 21 Fed. Appx. 529 (8th Cir. 2001); Smith v.
Commissioner, T.C. Memo. 1998-166; Ribera v. Commissioner, T.C.
Memo. 1997-38. Accordingly, because petitioner was liable to
pay, and in fact, did pay, $7,500 as and for Ms. Salesky’s
attorney’s fees, and because petitioner would have been liable to
pay the fees even in the event of Ms. Salesky’s death, the
payment cannot be alimony pursuant to section 71, nor can
petitioner take a deduction for the payment under section 215(a).
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Last modified: May 25, 2011