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1044ez 18. 1044ez   Alimony Table of Contents IntroductionSpouse or former spouse. 1044ez Divorce or separation instrument. 1044ez Useful Items - You may want to see: General RulesMortgage payments. 1044ez Taxes and insurance. 1044ez Other payments to a third party. 1044ez Instruments Executed After 1984Payments to a third party. 1044ez Exception. 1044ez Substitute payments. 1044ez Specifically designated as child support. 1044ez Contingency relating to your child. 1044ez Clearly associated with a contingency. 1044ez How To Deduct Alimony Paid How To Report Alimony Received Recapture Rule Introduction This chapter discusses the rules that apply if you pay or receive alimony. 1044ez It covers the following topics. 1044ez What payments are alimony. 1044ez What payments are not alimony, such as child support. 1044ez How to deduct alimony you paid. 1044ez How to report alimony you received as income. 1044ez Whether you must recapture the tax benefits of alimony. 1044ez Recapture means adding back in your income all or part of a deduction you took in a prior year. 1044ez Alimony is a payment to or for a spouse or former spouse under a divorce or separation instrument. 1044ez It does not include voluntary payments that are not made under a divorce or separation instrument. 1044ez Alimony is deductible by the payer and must be included in the spouse's or former spouse's income. 1044ez Although this chapter is generally written for the payer of the alimony, the recipient can use the information to determine whether an amount received is alimony. 1044ez To be alimony, a payment must meet certain requirements. 1044ez Different requirements generally apply to payments under instruments executed after 1984 and to payments under instruments executed before 1985. 1044ez This chapter discusses the rules for payments under instruments executed after 1984. 1044ez If you need the rules for payments under pre-1985 instruments, get and keep a copy of the 2004 version of Publication 504. 1044ez That was the last year the information on pre-1985 instruments was included in Publication 504. 1044ez Use Table 18-1 in this chapter as a guide to determine whether certain payments are considered alimony. 1044ez Definitions. 1044ez   The following definitions apply throughout this chapter. 1044ez Spouse or former spouse. 1044ez   Unless otherwise stated, the term “spouse” includes former spouse. 1044ez Divorce or separation instrument. 1044ez   The term “divorce or separation instrument” means: A decree of divorce or separate maintenance or a written instrument incident to that decree, A written separation agreement, or A decree or any type of court order requiring a spouse to make payments for the support or maintenance of the other spouse. 1044ez This includes a temporary decree, an interlocutory (not final) decree, and a decree of alimony pendente lite (while awaiting action on the final decree or agreement). 1044ez Useful Items - You may want to see: Publication 504 Divorced or Separated Individuals General Rules The following rules apply to alimony regardless of when the divorce or separation instrument was executed. 1044ez Payments not alimony. 1044ez   Not all payments under a divorce or separation instrument are alimony. 1044ez Alimony does not include: Child support, Noncash property settlements, Payments that are your spouse's part of community income, as explained under Community Property in Publication 504, Payments to keep up the payer's property, or Use of the payer's property. 1044ez Payments to a third party. 1044ez   Cash payments, checks, or money orders to a third party on behalf of your spouse under the terms of your divorce or separation instrument can be alimony, if they otherwise qualify. 1044ez These include payments for your spouse's medical expenses, housing costs (rent, utilities, etc. 1044ez ), taxes, tuition, etc. 1044ez The payments are treated as received by your spouse and then paid to the third party. 1044ez Life insurance premiums. 1044ez   Alimony includes premiums you must pay under your divorce or separation instrument for insurance on your life to the extent your spouse owns the policy. 1044ez Payments for jointly-owned home. 1044ez   If your divorce or separation instrument states that you must pay expenses for a home owned by you and your spouse, some of your payments may be alimony. 1044ez Mortgage payments. 1044ez   If you must pay all the mortgage payments (principal and interest) on a jointly-owned home, and they otherwise qualify as alimony, you can deduct one-half of the total payments as alimony. 1044ez If you itemize deductions and the home is a qualified home, you can claim one-half of the interest in figuring your deductible interest. 1044ez Your spouse must report one-half of the payments as alimony received. 1044ez If your spouse itemizes deductions and the home is a qualified home, he or she can claim one-half of the interest on the mortgage in figuring deductible interest. 1044ez Taxes and insurance. 1044ez   If you must pay all the real estate taxes or insurance on a home held as tenants in common, you can deduct one-half of these payments as alimony. 1044ez Your spouse must report one-half of these payments as alimony received. 1044ez If you and your spouse itemize deductions, you can each claim one-half of the real estate taxes and none of the home insurance. 1044ez    If your home is held as tenants by the entirety or joint tenants, none of your payments for taxes or insurance are alimony. 1044ez But if you itemize deductions, you can claim all of the real estate taxes and none of the home insurance. 1044ez Other payments to a third party. 1044ez   If you made other third-party payments, see Publication 504 to see whether any part of the payments qualifies as alimony. 1044ez Instruments Executed After 1984 The following rules for alimony apply to payments under divorce or separation instruments executed after 1984. 1044ez Exception for instruments executed before 1985. 1044ez   There are two situations where the rules for instruments executed after 1984 apply to instruments executed before 1985. 1044ez A divorce or separation instrument executed before 1985 and then modified after 1984 to specify that the after-1984 rules will apply. 1044ez A temporary divorce or separation instrument executed before 1985 and incorporated into, or adopted by, a final decree executed after 1984 that: Changes the amount or period of payment, or Adds or deletes any contingency or condition. 1044ez   For the rules for alimony payments under pre-1985 instruments not meeting these exceptions, get the 2004 version of Publication 504 at www. 1044ez irs. 1044ez gov/pub504. 1044ez Example 1. 1044ez In November 1984, you and your former spouse executed a written separation agreement. 1044ez In February 1985, a decree of divorce was substituted for the written separation agreement. 1044ez The decree of divorce did not change the terms for the alimony you pay your former spouse. 1044ez The decree of divorce is treated as executed before 1985. 1044ez Alimony payments under this decree are not subject to the rules for payments under instruments executed after 1984. 1044ez Example 2. 1044ez Assume the same facts as in Example 1 except that the decree of divorce changed the amount of the alimony. 1044ez In this example, the decree of divorce is not treated as executed before 1985. 1044ez The alimony payments are subject to the rules for payments under instruments executed after 1984. 1044ez Alimony requirements. 1044ez   A payment to or for a spouse under a divorce or separation instrument is alimony if the spouses do not file a joint return with each other and all the following requirements are met. 1044ez The payment is in cash. 1044ez The instrument does not designate the payment as not alimony. 1044ez Spouses legally separated under a decree of divorce or separate maintenance are not members of the same household. 1044ez There is no liability to make any payment (in cash or property) after the death of the recipient spouse. 1044ez The payment is not treated as child support. 1044ez Each of these requirements is discussed below. 1044ez Cash payment requirement. 1044ez   Only cash payments, including checks and money orders, qualify as alimony. 1044ez The following do not qualify as alimony. 1044ez Transfers of services or property (including a debt instrument of a third party or an annuity contract). 1044ez Execution of a debt instrument by the payer. 1044ez The use of the payer's property. 1044ez Payments to a third party. 1044ez   Cash payments to a third party under the terms of your divorce or separation instrument can qualify as cash payments to your spouse. 1044ez See Payments to a third party under General Rules, earlier. 1044ez   Also, cash payments made to a third party at the written request of your spouse may qualify as alimony if all the following requirements are met. 1044ez The payments are in lieu of payments of alimony directly to your spouse. 1044ez The written request states that both spouses intend the payments to be treated as alimony. 1044ez You receive the written request from your spouse before you file your return for the year you made the payments. 1044ez Payments designated as not alimony. 1044ez   You and your spouse can designate that otherwise qualifying payments are not alimony. 1044ez You do this by including a provision in your divorce or separation instrument that states the payments are not deductible as alimony by you and are excludable from your spouse's income. 1044ez For this purpose, any instrument (written statement) signed by both of you that makes this designation and that refers to a previous written separation agreement is treated as a written separation agreement (and therefore a divorce or separation instrument). 1044ez If you are subject to temporary support orders, the designation must be made in the original or a later temporary support order. 1044ez   Your spouse can exclude the payments from income only if he or she attaches a copy of the instrument designating them as not alimony to his or her return. 1044ez The copy must be attached each year the designation applies. 1044ez Spouses cannot be members of the same household. 1044ez    Payments to your spouse while you are members of the same household are not alimony if you are legally separated under a decree of divorce or separate maintenance. 1044ez A home you formerly shared is considered one household, even if you physically separate yourselves in the home. 1044ez   You are not treated as members of the same household if one of you is preparing to leave the household and does leave no later than 1 month after the date of the payment. 1044ez Exception. 1044ez   If you are not legally separated under a decree of divorce or separate maintenance, a payment under a written separation agreement, support decree, or other court order may qualify as alimony even if you are members of the same household when the payment is made. 1044ez Table 18-1. 1044ez Alimony Requirements (Instruments Executed After 1984) Payments ARE alimony if all of the following are true: Payments are NOT alimony if any of the following are true: Payments are required by a divorce or separation instrument. 1044ez Payments are not required by a divorce or separation instrument. 1044ez Payer and recipient spouse do not file a joint return with each other. 1044ez Payer and recipient spouse file a joint return with each other. 1044ez Payment is in cash (including checks or money orders). 1044ez Payment is: Not in cash, A noncash property settlement, Spouse's part of community income, or To keep up the payer's property. 1044ez Payment is not designated in the instrument as not alimony. 1044ez Payment is designated in the instrument as not alimony. 1044ez Spouses legally separated under a decree of divorce or separate maintenance are not members of the same household. 1044ez Spouses legally separated under a decree of divorce or separate maintenance are members of the same household. 1044ez Payments are not required after death of the recipient spouse. 1044ez Payments are required after death of the recipient spouse. 1044ez Payment is not treated as child support. 1044ez Payment is treated as child support. 1044ez These payments are deductible by the payer and includible in income by the recipient. 1044ez These payments are neither deductible by the payer nor includible in income by the recipient. 1044ez Liability for payments after death of recipient spouse. 1044ez   If any part of payments you make must continue to be made for any period after your spouse's death, that part of your payments is not alimony, whether made before or after the death. 1044ez If all of the payments would continue, then none of the payments made before or after the death are alimony. 1044ez   The divorce or separation instrument does not have to expressly state that the payments cease upon the death of your spouse if, for example, the liability for continued payments would end under state law. 1044ez Example. 1044ez You must pay your former spouse $10,000 in cash each year for 10 years. 1044ez Your divorce decree states that the payments will end upon your former spouse's death. 1044ez You must also pay your former spouse or your former spouse's estate $20,000 in cash each year for 10 years. 1044ez The death of your spouse would not terminate these payments under state law. 1044ez The $10,000 annual payments may qualify as alimony. 1044ez The $20,000 annual payments that do not end upon your former spouse's death are not alimony. 1044ez Substitute payments. 1044ez   If you must make any payments in cash or property after your spouse's death as a substitute for continuing otherwise qualifying payments before the death, the otherwise qualifying payments are not alimony. 1044ez To the extent that your payments begin, accelerate, or increase because of the death of your spouse, otherwise qualifying payments you made may be treated as payments that were not alimony. 1044ez Whether or not such payments will be treated as not alimony depends on all the facts and circumstances. 1044ez Example 1. 1044ez Under your divorce decree, you must pay your former spouse $30,000 annually. 1044ez The payments will stop at the end of 6 years or upon your former spouse's death, if earlier. 1044ez Your former spouse has custody of your minor children. 1044ez The decree provides that if any child is still a minor at your spouse's death, you must pay $10,000 annually to a trust until the youngest child reaches the age of majority. 1044ez The trust income and corpus (principal) are to be used for your children's benefit. 1044ez These facts indicate that the payments to be made after your former spouse's death are a substitute for $10,000 of the $30,000 annual payments. 1044ez Of each of the $30,000 annual payments, $10,000 is not alimony. 1044ez Example 2. 1044ez Under your divorce decree, you must pay your former spouse $30,000 annually. 1044ez The payments will stop at the end of 15 years or upon your former spouse's death, if earlier. 1044ez The decree provides that if your former spouse dies before the end of the 15-year period, you must pay the estate the difference between $450,000 ($30,000 × 15) and the total amount paid up to that time. 1044ez For example, if your spouse dies at the end of the tenth year, you must pay the estate $150,000 ($450,000 − $300,000). 1044ez These facts indicate that the lump-sum payment to be made after your former spouse's death is a substitute for the full amount of the $30,000 annual payments. 1044ez None of the annual payments are alimony. 1044ez The result would be the same if the payment required at death were to be discounted by an appropriate interest factor to account for the prepayment. 1044ez Child support. 1044ez   A payment that is specifically designated as child support or treated as specifically designated as child support under your divorce or separation instrument is not alimony. 1044ez The amount of child support may vary over time. 1044ez Child support payments are not deductible by the payer and are not taxable to the recipient. 1044ez Specifically designated as child support. 1044ez   A payment will be treated as specifically designated as child support to the extent that the payment is reduced either: On the happening of a contingency relating to your child, or At a time that can be clearly associated with the contingency. 1044ez A payment may be treated as specifically designated as child support even if other separate payments are specifically designated as child support. 1044ez Contingency relating to your child. 1044ez   A contingency relates to your child if it depends on any event relating to that child. 1044ez It does not matter whether the event is certain or likely to occur. 1044ez Events relating to your child include the child's: Becoming employed, Dying, Leaving the household, Leaving school, Marrying, or Reaching a specified age or income level. 1044ez Clearly associated with a contingency. 1044ez   Payments that would otherwise qualify as alimony are presumed to be reduced at a time clearly associated with the happening of a contingency relating to your child only in the following situations. 1044ez The payments are to be reduced not more than 6 months before or after the date the child will reach 18, 21, or local age of majority. 1044ez The payments are to be reduced on two or more occasions that occur not more than 1 year before or after a different one of your children reaches a certain age from 18 to 24. 1044ez This certain age must be the same for each child, but need not be a whole number of years. 1044ez In all other situations, reductions in payments are not treated as clearly associated with the happening of a contingency relating to your child. 1044ez   Either you or the IRS can overcome the presumption in the two situations above. 1044ez This is done by showing that the time at which the payments are to be reduced was determined independently of any contingencies relating to your children. 1044ez For example, if you can show that the period of alimony payments is customary in the local jurisdiction, such as a period equal to one-half of the duration of the marriage, you can overcome the presumption and may be able to treat the amount as alimony. 1044ez How To Deduct Alimony Paid You can deduct alimony you paid, whether or not you itemize deductions on your return. 1044ez You must file Form 1040. 1044ez You cannot use Form 1040A or Form 1040EZ. 1044ez Enter the amount of alimony you paid on Form 1040, line 31a. 1044ez In the space provided on line 31b, enter your spouse's social security number (SSN) or individual taxpayer identification number (ITIN). 1044ez If you paid alimony to more than one person, enter the SSN or ITIN of one of the recipients. 1044ez Show the SSN or ITIN and amount paid to each other recipient on an attached statement. 1044ez Enter your total payments on line 31a. 1044ez You must provide your spouse's SSN or ITIN. 1044ez If you do not, you may have to pay a $50 penalty and your deduction may be disallowed. 1044ez For more information on SSNs and ITINs, see Social Security Number (SSN) in chapter 1. 1044ez How To Report Alimony Received Report alimony you received as income on Form 1040, line 11. 1044ez You cannot use Form 1040A or Form 1040EZ. 1044ez You must give the person who paid the alimony your SSN or ITIN. 1044ez If you do not, you may have to pay a $50 penalty. 1044ez Recapture Rule If your alimony payments decrease or end during the first 3 calendar years, you may be subject to the recapture rule. 1044ez If you are subject to this rule, you have to include in income in the third year part of the alimony payments you previously deducted. 1044ez Your spouse can deduct in the third year part of the alimony payments he or she previously included in income. 1044ez The 3-year period starts with the first calendar year you make a payment qualifying as alimony under a decree of divorce or separate maintenance or a written separation agreement. 1044ez Do not include any time in which payments were being made under temporary support orders. 1044ez The second and third years are the next 2 calendar years, whether or not payments are made during those years. 1044ez The reasons for a reduction or end of alimony payments that can require a recapture include: A change in your divorce or separation instrument, A failure to make timely payments, A reduction in your ability to provide support, or A reduction in your spouse's support needs. 1044ez When to apply the recapture rule. 1044ez   You are subject to the recapture rule in the third year if the alimony you pay in the third year decreases by more than $15,000 from the second year or the alimony you pay in the second and third years decreases significantly from the alimony you pay in the first year. 1044ez   When you figure a decrease in alimony, do not include the following amounts. 1044ez Payments made under a temporary support order. 1044ez Payments required over a period of at least 3 calendar years that vary because they are a fixed part of your income from a business or property, or from compensation for employment or self-employment. 1044ez Payments that decrease because of the death of either spouse or the remarriage of the spouse receiving the payments before the end of the third year. 1044ez Figuring the recapture. 1044ez   You can use Worksheet 1 in Publication 504 to figure recaptured alimony. 1044ez Including the recapture in income. 1044ez   If you must include a recapture amount in income, show it on Form 1040, line 11 (“Alimony received”). 1044ez Cross out “received” and enter “recapture. 1044ez ” On the dotted line next to the amount, enter your spouse's last name and SSN or ITIN. 1044ez Deducting the recapture. 1044ez   If you can deduct a recapture amount, show it on Form 1040, line 31a (“Alimony paid”). 1044ez Cross out “paid” and enter “recapture. 1044ez ” In the space provided, enter your spouse's SSN or ITIN. 1044ez Prev  Up  Next   Home   More Online Publications
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The 1044ez

1044ez Index A Assistance (see Tax help) F Free tax services, How To Get Tax Help H Help (see Tax help) High-low method: Introduction, High-low method. 1044ez October 1, 2010 (Table 1) (see List of states under October 1, 2010 (High-low method) ) Transition rules, High-low method. 1044ez I Internet: Per diem rates, Per diem rates on the Internet. 1044ez Introduction, Introduction M More information (see Tax help) O October 1, 2010 (High-low method): Arizona (AZ), Per Diem Rate Tables California (CA), Per Diem Rate Tables Colorado (CO), Per Diem Rate Tables District of Columbia (DC), Per Diem Rate Tables Florida (FL), Per Diem Rate Tables Illinois (IL), Per Diem Rate Tables Maryland (MD), Per Diem Rate Tables Massachusetts (MA), Per Diem Rate Tables New York (NY), Per Diem Rate Tables Pennsylvania (PA), Per Diem Rate Tables Rhode Island (RI), Per Diem Rate Tables Utah (UT), Per Diem Rate Tables Virginia (VA), Per Diem Rate Tables Washington (WA), Per Diem Rate Tables Wyoming (WY), Per Diem Rate Tables P Per diem rates: High-cost localities, High-low method. 1044ez High-low method, High-low method. 1044ez Internet, Per diem rates on the Internet. 1044ez Regular federal method, Regular federal per diem rate method. 1044ez Standard rate for unlisted localities, High-low method. 1044ez , Regular federal per diem rate method. 1044ez Transition rules, High-low method. 1044ez , Federal per diem rate method. 1044ez Publications (see Tax help) R Regular federal method: Introduction, Regular federal per diem rate method. 1044ez Transition rules, Federal per diem rate method. 1044ez T Table 2 (High-low method, October 1, 2010), Per Diem Rate Tables Tax help, How To Get Tax Help Taxpayer Advocate, Taxpayer Advocate Service. 1044ez Transition rules:, Transition Rules Example: High-low method, High-low method. 1044ez Regular federal method, Federal per diem rate method. 1044ez High-low method, High-low method. 1044ez Regular federal method, Federal per diem rate method. 1044ez TTY/TDD information, How To Get Tax Help Prev  Up     Home   More Online Publications