Rev. Rul. 57-113

Advice has been requested whether a husband may deduct for Federal income tax purposes monthly payments to his wife pursuant to a decree awarding alimony pendente lite by the state where his wife resides if he previously was granted a divorce which that state did not recognize.

In May 1954, the husband applied for and was granted a divorce in Mexico. In August of the same year, he remarried. Immediately thereafter, his former wife instituted an action under the law of the state in which she resided contesting the validity of the Mexican divorce and asking for a legal separation from the husband and an allowance for her support pending the outcome of the litigation. The court granted the wife's motion for an allowance pendente lite in December 1954, and the husband agreed to make the monthly payments for support to the wife pending the outcome of the litigation.

Section 71(a)(3) of the Internal Revenuce Code of 1954 provides in part as follows:

If a wife is separated from her husband, the wife's gross income includes periodic payments * * * received by her * * * from her husband under a decree entered after March 1, 1954, requiring the husband to make the payments for her support or maintenance. This paragraph shall not apply if the husband and wife make a single return jointly.

Section 215 of the Code provides that in the case of a husband described in section 71, there shall be allowed as a deduction amounts includible under section 71 in the gross income of his wife, payment of which is made within the husband's taxable year.

In G.C.M. 25250, C.B. 1947-2, 32, payments made under an agreement incident to a Mexican decree, which is not recognized in many American jurisdictions were held deductible. Payments made in good faith incident to a Mexican decree or other decree the validity of which has been questioned, are generally includible in the wife's gross income under section 71 and deductible by the husband under section 215 of the Code. This does not mean that the payments under a later decree which does not recognize the earlier decree are not to be similarly treated. The position taken by the Service in G.C.M. 25250, supra , was not intended to recognize the Mexican decree over subsequent decrees in other jurisdictions.

Accordingly, it is held that the existence of a Mexican divorce decree prior to a decree granted in a state which does not recognize the validity of the Mexican divorce does not preclude the deductibility under section 215 of the Internal Revenue Code of 1954 of the pendente lite payments made pursuant to the state decree.