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(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.
The common pleas court’s first temporary order and the
divorce decree satisfy the requirements of the definition of a
“divorce or separation instrument”. Mr. Harris’s child support
payments made pursuant to the second temporary order and the
divorce decree clearly fail to satisfy the requirements of
section 71(b) and cannot be deducted as alimony.
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Last modified: November 10, 2007