The “six-month” rule in the Alimony/Child Support context.

This article applies to a limited number of folks, but if it applies to you, a mistake could really hurt you financially.

Two issues that get resolved during many folks’ divorces are Child Support and Alimony.   It seems like a pretty simple thing – the Order or Agreement specifies a time period that Child Support and Alimony will be paid.

However, there is a federal tax issue lurking in the background for those folks who have kids who will turn 18 within six months of the time that Alimony payments are scheduled to end.

Internal Revenue Code (IRC), Section 71(c) provides that Alimony payments cannot be fixed as Child Support.  A subsequent IRS Temporary Regulation (Temp. Reg. §1.71-1T(c), Q-18) states that:

“To be considered as maintenance, the payments must meet two tests:

a.Single Reduction Test: Payments are not to be reduced not more than six months before or after the date the child is to attain the age of 18, 21 or the local age of majority.

b.Multiple Reduction Test: Payments are not to be reduced on two or more occasions which occur not more than one year before or after a different child of the payor spouse attains a certain age between the ages of 18 and 24, inclusive – and is the same age for each child. Temp. Reg. §1.71-1T(c), Q-18.”

In plain English, this means that if your Alimony is set to be reduced six months before or after your child turns 18, or if your Alimony payments are set to be reduced on 2 or more occasions within a year of  another of your child(ren)’s attainment of the same age between 18-24 years old, your Alimony could potentially be treated as Child Support by the IRS.

Why does this matter?

It matters because Alimony is generally tax-deductible to the payor spouse and Child Support is not.

A real world example:  You and your spouse separate on March 1,  2015, when your son is 15.  His birthday is January 25th.  You execute a Separation Agreement on May 1, 2015.  In addition to requiring you to pay Child Support, your Separation Agreement states that you will pay Alimony to your spouse for three years, ending with the April 1, 2018 payment.

Does the person paying Alimony have a potential problem with the IRS?  Yes.

The paying spouse has deducted three years’ of Alimony payments from his federal tax income.  If the IRS chooses, because his/her son turned 18 within six months of his last Alimony payment, it can deem his/her Alimony payments as Child Support under IRC Section 71(c) and add the Alimony deductions back to his/her income and make him/her pay tax, penalties and interest on that income recapture.

How could this be avoided?  Simple.  Structure the Alimony payments such that the ending date is at least 181 days before the child’s 18th birthday or 181 days after the child’s 18th birthday.   In the example above, had the payor simply paid a little less each month, but set the last payment date at August 1, 2018, the Agreement language would likely not have triggered the language in IRC Section 71(c).

It should be noted that there have been people who have gone to tax court and successfully defended their “maintenance” (Alimony) deduction even though the payments ended six months before or after his or her child turned 18, but do you really want to have to hire an attorney and spend months or years litigating when the problem is so easily preventable?