Divorced? GOP Tax Bill Could Make Alimony Even More Bank Account Busting

The proposed $1.51 trillion Tax Cuts and Jobs Act (TCJA) could be good for some people saving for retirement, but the provisions that cut the alimony deduction and limit the deductibility of mortgage payments could roil the financial aspects of divorce, some experts say.

Under the TCJA, alimony payments would not be deductible by the payor or be able to be included in the income of the payee. The provision would be effective for any divorce decree or separation agreement executed after 2017 and to any modification after 2017 of any such instrument executed before such date if expressly provided for by such modification.

According to the summary of the bill, the provision would eliminate what is effectively a "divorce subsidy" under current law, in that a divorced couple can often achieve a better tax result for payments between them than a married couple can.

The provision, according to the summary of the bill, recognizes that the provision of spousal support as a consequence of a divorce or separation should have the same tax treatment as the provision of spousal support within the context of a married couple, as well as the provision of child support.

According to Malcolm Taub, partner and co-chair of the divorce and family law practice group at Davidoff Hutcher & Citron, eliminating the deduction for the payment of spousal maintenance is a major issue in the matrimonial world.

"Many settlements are based upon the fact that spousal maintenance is deductible and can provide a major benefit towards settlement as a result of the difference of tax rates between the monied spouse and the non-monied spouse," he said.

What's more, he noted that judges also consider this deduction in rendering opinions as to spousal maintenance. "The disparity in tax rates offers more available cash to the non-monied spouse while providing a benefit to the higher monied partner," Taub said.

Taub also noted that lowering the amount of mortgage deductibility to $500,000 will also have a significant effect on matrimonial settlements. "The marital home, in many cases, is the major asset which the parties own," he said. "It provides a major currency to settle a matrimonial case. The party receiving the matrimonial home is very concerned with the deductibility of mortgage payments."

To the extent that the deductibility of such mortgage payments are limited, Taub said, it will significantly impact the ability of a party to afford to maintain the marital residence and, therefore, a reasonable lifestyle after the marriage. "Reducing the deductibility of mortgage interest increases the need for additional spousal maintenance," he said. "The limitations on deductibility of spousal maintenance is also detrimental to the monied spouse."

The TCJA, the 429-page H.R.1 Tax Bill is not a done deal, but now is the time to figure out how the proposed legislation could affect your financial future.

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