California - temporary spousal support during mediation, and taxes

[dleconte]

My divorce in California was filed in September 2014, was in mediation and then through the court process during most of 2015, finalized in November of 2015. At the outset of mediation, we negotiated terms of temporary support, however the mediator did not draw up any agreement document for us to sign at that time.

It is now tax time and I have all my receipts and canceled checks but nothing else to show for the temporary support, and I am wondering whether that is all that is needed for the temporary support to count as alimony (and therefore be tax deductible from my income).

The mediator swears up and down that the receipts are all I need, that he has never heard anyone request anything else in 14 years of practice. However TC Memo 2004-248 would seem to indicate that there also needs to be an Instrument (court order or written agreement) and I don't really think that I have that.

So the question is, given that I paid temporary spousal support and have all the receipts but that the support was essentially only agreed to verbally as part of mediation, can it be counted as alimony for tax reporting purposes, or can't it?

 

[Zigner]

If you were never under a court order to pay support, then I'm thinking that you were simply gifting the money. Wait for other more knowledgeable members to chime in...

 

[tranquility]

It depends on the facts. Your facts are slippery.

https://www.law.cornell.edu/uscode/text/26/71

 

[OHRoadwarrior]

Though others might disagree, I always say if you think it might trigger an audit because of substantiation issues, don't do it.

 

[wavehopper27]

Alimony is a payment to or for a spouse or former spouse under a divorce or separation instrument. It does not include voluntary payments that are not made under a divorce or separation instrument.

Alimony is deductible by the payer, and the recipient must include it in income. Although this chapter is generally written for the payer of the alimony, the recipient can also use the information to determine whether an amount received is alimony.

To be alimony, a payment must meet certain requirements. There are some differences between the requirements that apply to payments under instruments executed after 1984 and to payments under instruments executed before 1985. The general requirements that apply to payments regardless of when the divorce or separation agreement was executed and the specific requirements that apply to post-1984 (and, in certain cases, some pre-1985 instruments) are discussed in this publication. If you are looking for information on the specific requirements that apply to pre-1985 instruments, get and keep a copy of the 2004 version of Pub. 504. That was the last year the information on pre-1985 instruments was included in Pub. 504.

Source:

https://www.irs.gov/publications/p17/ch18.html