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Can I still claim my alimony deduction?

If you are like most Texans, you have already filed your federal income tax return for 2017 and may even have received your refund. If you pay spousal support a/k/a alimony to your ex-spouse, you undoubtedly deducted those payments just like always. You may be wondering, however, if you can continue to do so in the future.

When Congress passed the Tax Cuts and Jobs Act and President Trump signed it into law last December, that ended the alimony deduction for alimony payors. It also ended the necessity for alimony-receiving ex-spouses to declare their payments as income and pay tax on them. However, as MarketWatch reported, these new tax laws do not apply to everyone

If your divorce is already finalized, you are one of the people to whom the new law does not apply. If you pay alimony, you can continue to deduct it next year and thereafter; if you receive alimony, you must continue to report it as income and pay tax on it next year and thereafter.

The new law applies to all couples whose divorce or legal separation becomes final on or after Jan. 1, 2019. What this means is that if yours is not yet finalized, you and your soon-to-be ex-spouse are now in direct conflict with each other as to its finalization date.

Conflicting best interests

If the terms of your pending divorce or legal separation call for you to pay spousal support, it is in your best interests to finalize it this year. In this way you are grandfathered into the old law and able to deduct your payments from your federal income taxes. To make sure that the new law does not apply to you, it is also a good idea to discuss the wording of your divorce documents with your attorney. They should include the following provisions:

  • Your payments are spousal support or alimony only.
  • There must be no implication that they are child support.
  • They must end on a specified future date or on the death of your ex-spouse, whichever happens first.
  • You must make the payments in cash or in some type of a cash equivalency.
  • They must go to or strictly for the benefit of your ex-spouse.

If the terms of your pending divorce or legal separation call for you to receive spousal support, however, it is in your best interests to put off finalizing it until next year. That way you will not have to claim the payments as income and pay income tax on them.

This information is intended only to educate and should not be interpreted as legal advice.

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