Tug o’ war
“Alimony Recapture” is a tricky and often misunderstood IRS rule (Internal Revenue Code (IRC) §71) that is designed to prevent front loading of alimony payments which, the IRS presumes, are actually a property distribution “disguised” as alimony to save on taxes due. Of course, not everyone who is vulnerable to the recapture rule is trying to disguise a distribution of property as alimony, but the rule is supposed to be applied uniformly, regardless of motivation.
Alimony Recapture applies, in certain cases, where there is an award of alimony[1] from one ex-spouse to the other ex-spouse, that decreases in amount during the first three post separation years[2]. “Recapture” refers to the IRS’s right to force the payer of alimony to pay back, to the IRS, all tax benefits received as a result of alimony payments made to his or her former spouse during those first three years. (After the third full year, the concept of recapture becomes irrelevant.)
This would be, for many ex-spouses, a tax tragedy. Recapture aside, alimony is a very generous tax deduction that is almost always of primary importance when negotiating a divorce settlement wherein support of an ex-spouse is appropriate and feasible. Specifically, 100% of the alimony paid is allowed to be deducted from the payer’s gross income, thereby reducing his adjusted gross (taxable) income, dollar-for-dollar, in the amount of the alimony paid for that year. The ex-spouse who receives alimony, however, must pay taxes (also dollar for dollar) on those alimony payments received.
The rules of recapture are not overly complicated. They are, however, like so many IRS promulgated dictums, befuddling for most people because they are written in such a convoluted manner and sound, pretty much, like gobbledygook. In a nutshell, the tax benefits of paying alimony will be recaptured by the IRS if, in the 3rd year after your alimony payments commence, you pay greater than $15,000 less in alimony than you paid in the 2nd year. Or, if, during the 2nd and 3rd years, you pay “significantly less” in alimony than you paid in the 1st year. The term “significantly less” is the IRS’s word, not mine, and it is not defined in the statute. Luckily, the IRS has provided a recapture worksheet that makes trying to figure out what they mean by “significant” a nullity. In other words, if you run your numbers through the worksheet and they show that you fall under the recapture rule, you do. Period. (“Significant” of not!)
The worksheet and further explanation of the recapture rule can be found in IRS Publication 504 Divorced and Separated Individuals. That publication forth a nice example that most people find helpful when trying to understand the concept of recapture. Below is the IRS’s example and their worksheet, straight from Pub 504:
IRS Example: You pay your former spouse $50,000 alimony the first year, $39,000 the second year, and $28,000 the third year. Using these numbers, you report $1,500 as income on your Individual Income Tax Return (Form 1040, line 11). Your former spouse, on the other hand, reports on her Income Tax Return (Form 1040 line 31a), a $1,500 deduction. See worksheet, below:
Worksheet 1. Recapture of Alimony—Illustrated
| Note. Do not enter less than -0- on any line. | ||||||||
|
1. |
Alimony paid in 2nd year |
1. |
$39,000 |
|||||
|
2. |
Alimony paid in 3rd year |
2. |
28,000 |
|||||
|
3. |
Floor |
3. |
$15,000 |
|||||
|
4. |
Add lines 2 and 3 |
4. |
43,000 |
|||||
|
5. |
Subtract line 4 from line 1 |
5. |
-0- |
|||||
|
6. |
Alimony paid in 1st year |
6. |
50,000 |
|||||
|
7. |
Adjusted alimony paid in 2nd year (line 1 minus line 5) |
7. |
39,000 |
|||||
|
8. |
Alimony paid in 3rd year |
8. |
28,000 |
|||||
|
9. |
Add lines 7 and 8 |
9. |
67,000 |
|||||
|
10. |
Divide line 9 by 2 |
10. |
33,500 |
|||||
|
11. |
Floor |
11. |
$15,000 |
|||||
|
12. |
Add lines 10 and 11 |
12. |
48,500 |
|||||
|
13. |
Subtract line 12 from line 6 |
13. |
1,500 |
|||||
|
14. |
Recaptured alimony. Add lines 5 and 13 |
*14. |
1,500 |
|||||
| * If you deducted alimony paid, report this amount as income on Form 1040, line 11. If you reported alimony received, deduct this amount on Form 1040, line 31a. |
||||||||
So, what facts and circumstances usully exactly triggers the IRS’s Alimony Recapture rule? Typically, it is triggered by a reduction or termination of alimony payments caused by one or more of the following:
- a. A lump sump payment scenario;
- b. A settlement agreement/divorce decree in which alimony payments are decreased over that first three year post separation period;
- c. A settlement agreement/divorce decree that allows for alimony payments to cease prior to the end of the first three years post separation;
- d. A change made to your separation or divorce agreement, by the court or by agreement, due to the recipient’s decreased need, or the payer’s decreased ability to pay, that ignores the recapture rule; or
- e. The payer’s failure to make alimony payments on time, or at all.
You will note that, even if you do everything “right”, for purposes of legal enforceability (i.e., you consult an attorney, who puts the agreed-upon changes in writing, and you execute the document with the same formality as the original agreement, etc.), you still cannot assume that you will be free from the punishing effects of the Alimony Recapture Rule. It’s the old “knew or should have known” scenario.
Are there exceptions? Yes. There is no Alimony Recapture if:
- you made alimony payments over the three year post- separation period that varied because they were a fixed part of your income from a business, property, employment-compensation, or self-employment compensation[3]; or
- your alimony payments decreased as a result of your ex-spouse’s death; or
- because the spouse receiving alimony got remarried before the end of the 3rd year post separation period.
Caveat: There are rare cases when a party might still be better off working to get his or her alimony payments reduced and taking the lumps from the IRS in terms of recapture. Such a decision will depend on your individual financial circumstances. Run the numbers, do the worksheet, and talk with you CPA and divorce attorney before making such a decision.
Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator
This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.
[1] The Virginia Divorce Code refers to alimony as “spousal support”. For this article, however, I will be referring to monetary support payments (that are not child support), from one ex spouse to the other, as “alimony” because that is the term used by the IRS.
[2] The three-year period, in which the payer is vulnerable to the recapture rule, begins the first calendar year during which he or she makes an alimony payment under a divorce decree, order for separate maintenance, or written and signed separation agreement, as long as all the other criteria for alimony are met. The 2nd and 3rd years are the next two calendar years, whether or not any payments are made during those years. Please know that alimony payments made under a temporary support order do not count as part of the 3 years for purposes of alimony recapture.
[3] Alimony payments are sometimes set to correlate with a party’s business earnings, rents received, etc. such as in a case where the parties agree that the former spouse will receive X% of the payer’s gross or net profits from his or her business/real estate income earned for a set period of time post divorce.
Posted by Graine Mediation 
Fairfax VA Divorce Mediator 