Stacy D. Phillips and Michelle Piscopo

With news that the alimony deduction will expire at the end of this year, many clients are asking if they should rush to finalize their divorce. The answer to that question is, it depends.

The 2017 Tax Cuts and Jobs Act (the “TCJA”) made sweeping changes to the tax code and one of the most unexpected was the elimination of the alimony deduction. The alimony deduction had been part of the Internal Revenue Code for the last 75 years and allowed the higher income spouse to shift part of the tax liability on his/her income to the lower income spouse. This shifting of tax responsibility resulted in more after-tax income to allocate between the two households.

Under the TCJA, for any divorce or separation agreements or court orders entered into after December 31, 2018, the party paying alimony will no longer receive a deduction and the party receiving alimony will no longer have to report it as income. For divorce or separation agreements or court orders that are modified after December 31, 2018, the alimony deduction will not be allowed unless the modification expressly states that the TCJA does not apply. There is concern that, without the alimony tax deduction, there will be less incentive for the higher income spouse to pay alimony at a rate that will enable the lower income spouse to support his/her own household.

If you are the party receiving alimony, you might initially think it’s a good idea to wait to finalize your divorce because you won’t have to pay taxes on the alimony payments. Think again. If the tax liability remains with the party earning the income, his or her net income will be lower which translates to a lower alimony payment. While you will avoid tax liability for the payments, the reality is that the amount of alimony you receive will likely be lower than the amount you would have netted if you received the larger payment and paid the taxes on it.

Parties that are in a position to resolve their divorce cases before the end of the year should certainly try to do so in order to take advantage of the alimony deduction. However, if you are not in a position to finalize your divorce, but you have a temporary support order in place, don’t panic. You still have the option of opting out of the TCJA provision when the final order is entered.