Spousal Maintenance Before Dec 2018

[Anonymous]

Hello,

My ex and I got divorced in June 2017. My taxes were filed on time for 2017 but after recently rereading the Temporary Orders and Final Decree, I think some of the payments (spousal maintenance) made to my ex could have been deducted on my 2017 return. Below are sections from the Temporary Orders and Final Decree. What if any of the below can I deduct if I amend my 2017 return?

De Novo Hearing (Jan 31, 2017)

{Husband} shall vacate the marital residence no later than 5:00 p.m. on February 5, 2017.

Temporary Orders

Temporary Spousal Support

IT IS ORDERED that {husband} shall pay to {wife} as temporary spousal support One Thousand Two Hundred dollars ($1,200.00) per month, in two payments of Six Hundred dollars ($600.00) each, with the first payment of Six Hundred dollars ($600.00) being due and payable on February 15th, and like payments of Six Hundred dollars ($600.00) each being due and payable on the 1st and 15th day of each month thereafter until further order of this court.

IT IS ORDERED that the above payments shall be made via personal check payable by {husband} to {wife} via hand delivery or first-class mail to {wife} at her last known mailing address on or before 5:00 p.m. on the date the payment is due.

Debts to {husband}

IT IS AGREED AND ORDERED that {husband} shall be responsible for the timely payment of no more than the minimum amount due on the following debts and liabilities while this case is pending:

1. The mortgage for the marital residence
2. Any ad valorem taxes or insurance premiums due and owing for the marital residence
3. The gas, electric, water, internet and cable, for the residence
4. Payment of the monthly health insurance premium covering the family, including {wife}
5. The monthly car notes on all the parties’ vehicles
6. Auto insurance for all the parties’ vehicles

Agreed Final Decree of Divorce (June 2, 2017)

Court-Ordered Maintenance

The Court finds that under the circumstances presented in this case, {wife} is eligible for maintenance under the provisions of Texas Family Code chapter 8. Accordingly, {husband} is ordered to pay as maintenance the sum of seven thousand two hundred dollars ($7,200.00) as a one-time payment to {wife} on or before June 15, 2017.

Payment shall be made by {husband} directly to {wife} by cash, cashier's check, or money order at the last known address provided to {husband} by {wife} as set forth herein.

[DMarkM1]

Yes, you should amend your return to reduce you income by the amount of alimony paid. Your divorce was finalized pre-2019 so the rules disallowing it as a deduction do not apply to you unless the divorce has been modified after 2018.

Here is a link with more information what is spousal maintenance and what is not.    

[Anonymous]

Thank you DMarkM1.

I have read the link and am not completely clear on the following three bullets that exclude payments as deductible. For me personally, I can interpret these three bullets in ways that would allow me to deduct and in ways that would prevent me from deducting. The bullets are below and my brief thoughts after each in parenthesis. 

• Payments that are your spouse's part of community property income, (Is my income considered community property since we were married about 21 years and therefore, the payments I made to her are considered community property?)
• Payments to keep up the payer's property, (Since the property was in both of our names, would the IRS consider the payments I made to her "to keep up the payer's property"? I consider "to keep up" to mean to maintain the property, not pay the mortgage and utilities)
• Use of the payer's property, or (Does this mean that as the payer and since the property was in both of our names, that I was paying those amounts for her to use the property, or is this referring to if I were paying her for the use of the house?)

For the three different things I paid my ex, the amounts are as follows: Temporary Spousal Support of $1,200 X 5.5 = $6,600, Debts to Husband of $$3,340 X 5.5 = $18,370, and Court Ordered Maintenance of $7,200.. Based on your knowledge and experience, are all or some of these amounts deductible for me?

Thank You!

[DMarkM1 · Accepted solution]

Below are the comments on each statement.  

• Payments that are your spouse's part of community property income, (Is my income considered community property since we were married about 21 years and therefore, the payments I made to her are considered community property?)

This is referring to property in a community property state that is earning income. From that income you are paying her, her half;  that is not alimony.  

• Payments to keep up the payer's property, (Since the property was in both of our names, would the IRS consider the payments I made to her "to keep up the payer's property"? I consider "to keep up" to mean to maintain the property, not pay the mortgage and utilities)

Since you both own the house but you are paying all the mortgage, half of mortgage is alimony.  The same would be true for repairs and maintenance of the property.  The bills however are the ex spouse's and thus are alimony.   

• Use of the payer's property, or (Does this mean that as the payer and since the property was in both of our names, that I was paying those amounts for her to use the property, or is this referring to if I were paying her for the use of the house?)

This entails you owning the home and paying the mortgage, but the ex spouse is living there. That would not be alimony.