January 1, 2018
Written by Lynne C. Halem
The Way It Was: A Bit of Alimony History
The passage of The Revenue Act of 1942 revolutionized alimony law. After decades of debate, the financial impact of divorce was redefined as the paying party (known as the “payor”) became entitled to deduct alimony from his/her income, while the recipient party (known as the “payee”) took the payments as income.
Given the complexity of our tax code, it is not surprising that numerous refinements were introduced over time. Restrictions were devised to minimize “trickery,” attempts to circumvent the intent of the law by disguising property settlements and child support payments as alimony. Other modifications proved more advantageous to the divorcing population, opening new opportunities to incorporate tax-planning options into the structuring of family support terms. The end result was to provide more money to the post-divorce family, thereby somewhat easing the negative financial impact of divorce.
The Way It Will Be: Changes to Alimony Taxation
Over seven decades later, at the tail end of 2017, Congress passed a new tax bill that suggests, in word and in deed, that divorcing couples have been taking money from the government by shifting the taxability of income from the higher income spouse to the lower income spouse. The new act aims to prevent this “nefarious” practice, often labeled as a divorce subsidy, by rendering alimony payments as after tax income, beginning with the 2019 tax year.
Thus for couples divorcing in 2019 and, for modifications of pre-2019 divorces, if there is an election to follow the new law, alimony “payors” will not be eligible to deduct his/her payments and, following logically, recipients spouses will not pay taxes on payments received by them.
Consider the difference:
Advocates of the 2017 tax law are quick to put forth arguments to bolster their position and, in particular, their depiction of the divorcing population as a new revenue source aimed at deficit reduction.
In the real world, there are few individuals who truly believe that the tax deductibility of alimony provides an incentive for divorcing. Nor are there many who think that divorce is nothing but a money deal, that there are no emotional and painful components existing quite apart from thoughts on “making a buck on the deal.”
And, too, we cannot, in good conscience, ignore the fallacious reasoning underlying the “doing-a-good-deed” argument, which claims that lower income spouses, receiving tax-free support, will be the real beneficiaries of this new law. This conclusion demonstrates not only an ignorance of alimony laws, but especially of the “art” of negotiation. In truth, if the higher income party has less money to pay, there will be negative financial consequences for the whole family.
Consider for the moment in Massachusetts, the 2011 Act Reforming Alimony, which law went into effect in March 2012. This law provides a formula for the calculation of alimony based on 30 to 35 percent of the difference between the parties’ gross incomes or the recipient’s need. Obviously these percentages were not arbitrarily derived. To the contrary, they were based on analyses of tax implications under long- standing tax law rendering alimony as a deduction to the “payor” and as taxable income to the recipient. Clearly in the new 2019 world of divorce these operating percentages will require modification. The calculus no longer works.
We can certainly expect to see a flurry of activity in 2018, with separating couples, who are considering alimony in their deliberations, speeding up the process in order to benefit from financial incentives related to the pre-2019 tax characterization of alimony. Did someone say that the new law provided a disincentive for divorce? I would guess not to those in 2018 who are considering alimony payments.
And what about the existing laws throughout the United States? It does not take much imagination to assume that current support laws will now be the subject of renewed interest. Predictably legislators of all persuasions will rush to submit proposals dealing not only with the impact of new tax distinctions, but also seeing an opportunity to enact their own agendas for change. The resultant alimony law for our post-2018 Massachusetts’ world is anyone’s guess.
At CMDR we suggest that, at the very least, the problem solving nature of the mediation process offers divorcing couples the opportunity to shape their own agreement now or in 2019. Weighing tax implications and the financial impact on all family members should certainly play a role in the negotiation process, but so too should the resulting impact on the well being of all family members.