Like Shakespeare's troubled Hamlet, who struggled with so many difficult issues, since the adoption of the Income Tax, the U.S. Congress has repeatedly wrestled with the question of which taxpayers should be burdened with the payment of income tax in a myriad of situations, oftentimes in an effort to maximize the amount of tax that the government can collect. The latest effort to “reform” our income tax laws presents another example of where tax law and divorce law intersect.

On Nov. 2, 2017, the “Tax Cuts and Jobs Act” was introduced in the House of Representatives as Bill number H.R. 1, providing for amendments to the Internal Revenue Code (IRC) of 1986. Section 1309 is entitled “Repeal of Deduction for Alimony Payments.” The result has been an earthquake of seismic proportions that has reverberated throughout the matrimonial and family law bar. Under current tax law, the payment of alimony (denominated “spousal maintenance” or simply “maintenance” under New York Domestic Relations Law (DRL) §236B[6]) can be made deductible by the payor spouse or former spouse and taxable to the recipient/payee spouse under the IRC if certain criteria are met.

Lawyers and accountants have employed the current law to structure settlements in a tax advantaged fashion for the more than 30 years that have elapsed since the adoption of the 1986 version of the IRC. Thus, by way of example, the payment of taxable alimony by a payor spouse in the top income tax bracket to a payee spouse in a much lower income tax bracket allows the parties to a divorce to minimize the total amount of tax that is paid on a portion of their combined income that might not otherwise be available by moving that income to the lower tax bracket of the payee. The result is that there is more after-tax income to fund lifestyle at the government's expense, despite the fact that the payor's income may not have changed in any respect. In other words, less taxes mean more money to spend in an effort to maintain the standard of living for the payee spouse.

By eliminating the alimony deduction, H.R. 1 is designed to ensure that the income of the payor spouse is taxed at as high a tax rate as possible regardless of the amount of alimony that is paid to the recipient ex-spouse. It remains to be seen whether and to what extent the elimination of this deduction will generate more tax revenue for the Treasury.

The “hue and cry” over this proposed change to the Code will be very similar to the one that accompanied the revisions of the 1980s. In Commissioner v. Lester, 386 U.S. 299 (1961), the U.S. Supreme Court had ruled that, where an agreement or divorce decree provided for the payment of one sum of money for combined alimony and child support without specifying which portion was for alimony and which portion was for child support, the entire unallocated amount was deductible by the payor spouse and taxable to the payee spouse for income tax purposes. Thus, at that time it was a common practice to structure divorce settlements by providing for unallocated support in order to afford some tax relief to the payor spouse with respect to the entirety of his or her support payments, not just the alimony portion. The adoption of the IRC of 1986 occasioned a significant degree of panic and unrest among the members of the matrimonial bar by eliminating the ability to characterize unallocated alimony and child support as tax-deductible alimony. Many lawyers predicted an increased difficulty in achieving settlement of divorce cases. Nevertheless, life went on and cases continued to be settled, albeit with a different structure because the new law ensured that child-related payments were not subject to taxation once received by the recipient spouse.

If H.R. 1, §1309 passes into law in its current form, one of the potential concerns for matrimonial lawyers and their clients is when the elimination of the alimony deduction will become effective and will it have an impact on already existing agreements and judgments of divorce, separation or annulment. The “good news” is that the law contains provisions designed to address this concern, which provide as follows:

(c) EFFECTIVE DATE.—The amendments made by this section shall apply to—

(1) any divorce or separation instrument (as defined in section 71(b)(2) of the Internal Revenue Code of 1986 as in effect before the date of the enforcement of this Act) executed after December 31, 2017, and

(2) any divorce or separation instrument (as so defined) executed on or before such date and modified after such date if the modification expressly provides that the amendments made by this section apply to such modifications.

Thus, assuming that H.R. 1 passes both the House of Representatives and the Senate, and is signed into law by the President, there is a window between today and the end of 2017 during which parties to a divorce or other matrimonial action or proceeding can ensure that their settlement comes under currently existing law, allowing the parties to structure payments without fear of affecting their deductibility (assuming they have chosen to make those alimony payments tax deductible to the payor and taxable to the payee). Pursuant to proposed §1309(c)(1), all that needs to be done is to complete the deal and execute the agreement no later than Dec. 31, 2017.

The “bad news” is that the passage of this Act will create considerable pressure on judges who are in the midst of deciding contested matrimonial cases to render their decisions and grant the matrimonial decree in a time frame that allows the judgment/order to become effective and binding on the parties no later than Dec. 31, 2017. There will also possibly be a concomitant burden placed on County Clerks to ensure that those decrees are entered by that date in order to avoid the risk (if one exists) that entry after that date will subject the decree to the tax requirements of the new law.

All of this places a professional duty on the attorneys representing parties to a matrimonial action to provide their clients with the pertinent details of the new law, and to explain to their clients the potential options for settlement (assuming the law passes) prior to Dec. 31, 2017 and beginning on Jan. 1, 2018 in terms of the timing of the settlement. In addition, those lawyers whose clients' cases are awaiting post-trial decisions should consider writing to the court to ensure that the judge is aware of the potential consequences if a final decree does not become effective prior to Dec. 31, 2017. In addition, lawyers representing clients whose cases are on trial or are about to be tried are going to have to brief for the court the computations of the potential income tax impact on the parties if the new law applies as opposed to if the current law applies based on the date when the divorce decree incorporating the court's decision becomes effective.

Interestingly, subdivision (2) of §1309 (c), provides parties desiring to take advantage of the proposed new law with the opportunity to modify or amend existing agreements and judgments in a way that takes advantage of those opportunities, if any, to minimize income taxes as a result of the new law.

One strategy lawyers may consider employing in order to avoid problems in the future or to take advantage of subdivision (2) may be to draft their settlement agreements with alternative provisions—one that would apply if the law passes and one that would remain in effect if the law does not change.

There is said to be an old Chinese curse—“May you live in interesting times”—which is certainly apt for those of us practicing in the fields of matrimonial, divorce and family law. With a constantly evolving and changing substantive law and with clients who come laden with stories and problems that fall under the factual category of “you can't make this stuff up,” judges and lawyers who toil in this field certainly live for decades “in interesting times.” Surely, there will be interesting addenda to the tales of divorce tax law in years to come should this legislation come to fruition.

Alton L. Abramowitz is a senior partner at Mayerson Abramowitz & Kahn, which limits its practice to matrimonial and family law. He was national President of the American Academy of Matrimonial Lawyers (2013) and is the immediate past chair of the New York State Bar Association's Family Law Section.