As per the double taxation avoidance agreement, periodic payments made after divorce are exempt from tax in both contracting States.

Anuradha Venkataprasad decided to return to Hyderabad after severing her seven-year-old marriage in USA. Anuradha had already become a US citizen when she applied for the divorce in a Florida court in USA. She was awarded alimony by the courts in Florida, in accordance with US statutes. When she had to file an Income Tax return in India, she realised that the alimony award granted by the Florida court needed to be considered as income, but wasn't sure of its taxability implications.

Post divorce, Anuradha started receiving alimony under divorce and maintenance decrees. In USA, alimony is taxable income in the hands of the recipient, and a tax deduction for the payer. Even after her return to India, Anuradha continues to receive alimony. The question, of course, is if alimony is taxable in India.

DIVORCE

Marriages are made in heaven; divorce takes place on earth; death and taxes are inevitable. India has a low divorce rate. It is quite surprising that the divorce rate in India is one of the lowest globally, in spite of increase in the divorce rate.

Empowerment of women has initiated the dissolution of marriage in urban areas, as financially-educated women are now open to the option of ending the relationship rather than bearing with lifelong ill-treatment silently. In many cases, the financial independence of women leads to divorce decisions. In India, in a situation of divorce, an application for maintenance can be filed under the Hindu Adoption and Maintenance Act and under the Hindu Marriage Act.

However, irrespective of one's caste, creed or religion, any person can file an application for maintenance, under Section 125 of the Criminal Procedure Code. The court decides on the amount of maintenance based on the current living standard of the spouse applying, and also considering the entitlement of the applicant had he/she lived with the spouse.

TAXABILITY

To return to the question of taxability, though alimony cannot be said to arise from any particular “source” or be treated as a consideration for any past service, business or vocation, it is taxable in the hands of the recipient as per the ruling of the Mumbai High Court. The judgment concludes that monthly alimony received by a divorcee from an estranged spouse will remain taxable, while a one-time alimony payment will be a capital receipt and won't be taxable.

In USA, alimony is a taxable event in the hands of the recipient, while the payer gets deduction from his/her taxable income. Alimony doesn't include child support, non-cash property settlements, payments that are the spouse's part of community property income, etc.

If alimony is being withheld from a taxpayer's pay, either voluntarily or by garnishment, it's always after tax. Regardless of it being withheld, the payer can take an above-the-line deduction for it on Form 1040, line 31a when preparing the tax return. The recipient's Social Security Number must also be shown on that line, so that the IRS is aware whose return to monitor for it as taxable income.

As per the double taxation avoidance agreement with India and USA, periodic payments made pursuant to a written separation agreement or a decree of divorce, separate maintenance, or compulsory support, paid by a resident of a Contracting State to a resident of the other Contracting State, are exempt from tax in both Contracting States.

Just a decade ago, divorce was a dirty word in socially conservative India. The fear of social isolation, a sense of duty to extended families, and financial dependence put nearly unbearable pressure on couples to stay together. But as the economy has boomed, the rigid boundaries governing traditional Indian life are beginning to fall, especially among the growing urban middle-class.

As Helen Rowland stated, “These days, love is a matter of chance, matrimony a matter of money, and divorce a matter of course.”

However, current social directions force one to say that matrimony is more a matter of alimony these days.

(The author is a Coimbatore-based chartered accountant.)

(This article was published on April 1, 2012)
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