- 4 -
divorce or separation instrument. Sec. 71(b)(1)(A). Section
71(b)(2) defines a divorce or separation instrument as a decree
of divorce or a written instrument incident to such a decree, a
written separation agreement, or a decree requiring a spouse to
make payments for the support or maintenance of the other spouse.
A divorce or separation agreement must be made in writing.
Herring v. Commissioner, 66 T.C. 308, 311 (1976). The writing
requirement does not, however, specify the medium which may be
used nor the form the writing must take. Leventhal v.
Commissioner, T.C. Memo. 2000-92; Ellis v. Commissioner, T.C.
Memo. 1990-456; Osterbauer v. Commissioner, T.C. Memo. 1982-266.
A payment made pursuant to an oral agreement is not a payment
made pursuant to a divorce or separation instrument unless there
is some type of written instrument memorializing the agreement.
Herring v. Commissioner, supra; Osterbauer v. Commissioner,
supra. Petitioner bears the burden of proving respondent’s
determinations are incorrect. See Rule 142(a).
Petitioner and Deborah Emmel did not execute a written
agreement providing for alimony or maintenance. Petitioner
testified that the monthly payments to Deborah Emmel in 2004 were
made pursuant to an oral agreement. Petitioner also testified
that there was no court order in effect for 2004 requiring him to
pay alimony. The only evidence petitioner submitted was a copy
of his petition for divorce, signed by his attorney, which did
Page: Previous 1 2 3 4 5 6 Next
Last modified: March 27, 2008