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Lev, Tax Advisor
Category: Tax
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Experience:  Taxes, Immigration, Labor Relations
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My husband and I are divorcing. Hes on permanent disability

Customer Question

My husband and I are divorcing. He's on permanent disability and earns 32k a month-tax free. Is there a way to get my alimony tax free as well? My attorney says yes-but how?
Submitted: 2 years ago.
Category: Tax
Expert:  Lev replied 2 years ago.

Hi and welcome to Just Answer!
Alimony paid to you is your taxable income - there is no way to have an alimony nontaxable.
I am not sure why your attorney says yes - but here is a reference to the statute -

(a)General rule

Gross income includes amounts received as alimony or separate maintenance payments.

So I assume - if you provide that section to your attorney - he/she might say differently...
However - for payments - to be treated as alimony - please see IRS pub 504 -
Alimony Requirements. 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.
-- The payment is in cash.
-- The instrument does not designate the payment as not alimony.
-- The spouses are not members of the same household at the time the payments are made. This requirement applies only if the spouses are legally separated under a decree of divorce or separate maintenance.
-- There is no liability to make any payment (in cash or property) after the death of the recipient spouse.
-- The payment is not treated as child support.


For your payments - you need to verify if all these requirements are met and are reflected in your divorce settlement. The fact of payments are called alimony in the divorce agreement would not enough to determine if the payment may be treated as alimony for tax purposes.

Most often - the IRS rejects alimony treatment because divorce agreement has no the clause about "no liability to make any payment after the death of the recipient spouse.

So if your intention is to make payments as not taxable - they should be classified as property settlement and not as alimony - but that is mainly based on your specific circumstances and should be discussed with your attorney.

Let me know if you need any help.

Customer: replied 2 years ago.
Si I can get my alimony non taxable if I list it as a property settlement? So, if it's taxable and he gives me 15k a month-I have to pay tax on it even though he didn't? Not fair. Isn't there a way to give me alimony on his income as if it was taxed? So if he's making 32,000 month now, can they make it look like he's making 49k a month or whatever it would be if his 32,000 a month with taxed? Then I'd get 23 and net 15k
Expert:  Lev replied 2 years ago.
If you will receive alimony - that will be your taxable income.
However if you receive a property settlement - it will not taxable.
That is not a matter of calling the payment one way or another - that should be a specific type of payment based on your divorce document and according to its legal definition for tax purposes.
If your husband will pay alimony - it will be deductible on his tax return. If he doesn't have any taxable income and actually may not use that deduction - it is a different issue - still alimony is deductible for the payer.
If your husband will pay a property settlement - that payment is not deductible for the payer.
If your husband earned a pension (including disability pension) during your marriage - the right to receive a pension is a martial asset - and may be divided as a property settlement - not as an alimony.
I am sure that your attorney will help to prepare the divorce document in your best interests.

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