- 5 - (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. The issue here is solely whether petitioner’s payments to his ex-wife in 2002 satisfied the requirement that the payments be made under a divorce or separation instrument. See sec. 71(b)(1)(A). Section 71(b)(2) provides that a “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. Although petitioner and his ex-wife had an oral agreement, no written agreement or decree was in effect for the taxable year at issue. Courts have leniently interpreted the writing requirement. See, e.g., Leventhal v. Commissioner, T.C. Memo. 2000-92 (finding that letters signed by both the taxpayer’s attorney and the ex- wife’s attorney clearly setting forth the terms of maintenance payments was a “separation agreement”); Osterbauer v. Commissioner, T.C. Memo. 1982-266 (determining that a letter sentPage: Previous 1 2 3 4 5 6 7 8 NextLast modified: November 10, 2007