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Discussion:Registered Domestic Partners - Divorce / Alimony

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Discussion Forum Index --> Tax Questions --> Registered Domestic Partners - Divorce / Alimony


Michaelstar (talk|edits) said:

30 March 2008
RDP's are not recognized as married individuals for Federal tax purposes.

This is very clear. I have a CA - RDP that is now going through a very messy divorce. One of the partners is required to pay alimony along with child support.

I can find no reason that the alimony would be allowed as a deduction for federal tax purposes as the concept of same sex marriages are not recognized. Does anyone think I am missing something here?

Irsfixer (talk|edits) said:

30 March 2008
See, this is why there should be a required ten day waiting period before registering a domestic partnership.

WPCPA (talk|edits) said:

30 March 2008
If there is no valid marriage (not recognized) how can a Court enforce Alimony a Marital Right?

Kevinh5 (talk|edits) said:

30 March 2008
Where does the tax law state that they must have been legally married before in order to deduct alimony?

Mscash (talk|edits) said:

31 March 2008
Divorce? Dissolution of Marriage in California. Registered Domestic Partners disolve the partnership by filing a certificate of same with the Secretary of State per Section 299.3 of the California Family Code.

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=92639428734+0+0+0&WAISaction=retrieve

Michaelstar (talk|edits) said:

31 March 2008
Kevin - interesting reply. In looking at what qualifies as alimony, we need to look at IRC 71. Through out sec 71, it discusses "spouse" as either being a payor or payee. In order to be a spouse, one needs to have been legally married or why would one need to have a legal separation?

In FTB Pub 737 - Tax information for RPD's, it states that the federal treatment of these payments is uncertain. Granted, publications are not tax law but they do provide some insite as to direction.

Well, I still consider this post open for discussion. It is not likely that I am the only one to have had such a situation come across my desk and had the need to ponder this situation for Federal tax purposes.

This alimony is clearly deductible for California tax purposes but is it for Federal tax purposes - that is the real question.

Joanmcq (talk|edits) said:

31 March 2008
How is the fed treating 'palimony'?

Death&Taxes (talk|edits) said:

31 March 2008
I don't believe the benefits of Section 1041 are extended to RDPs, and the same spouse terminology is used in the Code.

Michaelstar (talk|edits) said:

31 March 2008
D&T - in CA sec 1041 would apply at the state level but not at the Fed level because the RDP is treated as a spouse for CA purposes. Another reason to believe that alimony for separated RPD's would not be treated as such at the Federal level.

Tdh555 (talk|edits) said:

31 March 2008
Definitely not for federal....RDP NOT RECOGNIZED AS SPOUSE.

Michaelstar (talk|edits) said:

31 March 2009
I'd like to revive this post from a year ago and see if anyone has come across this issue in the last year that they would like to add. Thanks

Wonder Woman USA (talk|edits) said:

31 March 2009
I've done a few RDPs but they are all still together so haven't had the "alimony" question come up. In fact, of all my clients going back 20 years, I've only had to deal with alimony three times!

But if I had divorcing California RDPs (some of whome were legally married by state law prior to the 2008 election), I think I would treat it as an adjustment on the state return, rather than trying to kludge it into the federal area.

EZTAX (talk|edits) said:

31 March 2009
Agree with Wonder Woman and others above. Not alimony for federal but taxable/deductible at the state level. Not sure how it could be anything else.

Michaelstar (talk|edits) said:

31 March 2009
I agree with you both. As long as it complies with the requirements of IRC sec 71 then it should be deductible for CA purposes form 2007 forward. I do wonder what others have to say or if anyone else had to deal with this issue and what if anything else one might need to consider.

Eric,CPA (talk|edits) said:

31 March 2009
Here is a twist, what about gift tax?

Joanmcq (talk|edits) said:

31 March 2009
Gift tax is a huge issue, because of the fed/state dichotomy. Although community property will not be recognized at the state level either.

Applelady (talk|edits) said:

31 March 2009
Seems like anyone paying alimony thinks its a gift. If its court ordered, I don't see a "gift", and I'm sure the receiver doesn't feel gifted. My ex thinks he's gifting child support.

NMexEA (talk|edits) said:

31 March 2009
Yet ANOTHER reason to hate the Defense of Marriage Act, as clear an example of religion messing up public policy as I have ever seen! (end of rant)

I was inspired by the OP, though...I hadn't ever thought about the deduction for alimony in terms of equal protection.

If the OP's client has (or can raise) some money and is dedicated to the cause, the time might be right to make a federal test case of DOMA as unconstitutional. I'd suggest contacting one of the gay/lesbian activist organizations to see whether they'd be willing to fund or even undertake the litigation.

EZTAX (talk|edits) said:

25 March 2014
Bump to see what people think of this now. Just got off the phone with the client who confirmed they were RDP's and not married. Cannot find any other guidance but sure seems to me if they had been married we would now be good to go but since they were not, alimony will be deductible on state but not federal. What say you?

Ckenefick (talk|edits) said:

25 March 2014
I think both partners would fail to meet the definition of a "spouse" for federal purposes. Although 215 doesn't use this word, I don't think, 215 references 71 and 71 uses it.

EZTAX (talk|edits) said:

25 March 2014
Thanks Chris, and good luck getting through to the light at the end of the tunnel!

Ckenefick (talk|edits) said:

25 March 2014
What tunnel?

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