December 28, 2019

Periodic alimony will no longer be tax deductible by the payor or taxable to the recipient beginning January 1, 2019.

Traditionally periodic alimony payments have qualified as a tax deduction from the payor’s gross annual income under the Internal Revenue Code. This means that the payor is allowed to reduce his total annual gross income by the amount of periodic alimony paid in that tax year, which has had the effect of reducing his or her tax liability to the federal government. On the other hand, the recipient of periodic alimony has traditionally been required to claim the periodic alimony payments as income, which has had the effect of causing him or her to potentially incur a greater tax liability to the federal government.

The traditional approach to the deductibility and taxability of periodic alimony payments may seem to be a “wash” as far as the federal government is concerned. Why should it care? One party deducts the payments and the other party claims the payments as taxable income. Quite often, however, the ex-spouse that is paying periodic alimony is in a higher tax bracket and the tax dollars that he or she saves are substantially greater than the additional tax dollars that the recipient ex-spouse must pay since that spouse is often in a lower tax bracket. The federal government has wised up to this.

In December of 2017 Congress passed the “Tax Cuts and Jobs Act”. A portion of this legislation provides that periodic alimony payments paid in divorce agreements made and divorce decrees entered by the Court after December 31, 2018, will have new tax implications. The paying spouse will no longer be able to deduct periodic alimony payments from his gross income after December 31, 2018. The receiving spouse will no longer be required to claim the periodic alimony payments as income after December 31, 2018.

If you are paying alimony based on a divorce agreement or divorce decree entered prior to December 31, 2018, you can relax. You are “grandfathered in”. Your payments will continue to be tax deductible and your ex-spouse will have to continue claiming the payments as income.

So, what will be the practical effect of these changes moving forward? In my experience judges have typically given consideration to the amount of taxes saved by the payor and the amount of additional taxes paid by the recipient whenever they have set an alimony obligation. I see no reason why judges will not take into consideration the fact that alimony is no longer tax deductible or includable in gross income moving forward, and I see no reason for them not to adjust the obligation based on the new tax rules.

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