Child support is non-taxable. It’s nondeductible by the child support payer and it’s non-tax includable to the child support recipient. This is rooted as best I can explain it in the concept that child support, while paid by a parent to another parent is nonetheless money that belongs to the child. The recipient parent gets child support and holds it at the nature of a trustee for the benefit of the child.
So there is no gain or income to the recipient parent. Child support carries no tax consequence. But that being said, that’s not entirely an accurate statement in that having children gives rise to dependency exemption claims, child care credits. There are tax aspects of supporting a child, but a child support payment from one spouse to another has no tax effect.
In contrast to that, spousal support is tax deductible to the parent who pays it and tax includable to the parent who receives it provided that the support that is paid meets certain requirements of the Internal Revenue Code. And the Internal Revenue Code sets out very clearly that in order for support to be deductible to the payer includible to the recipient, and quite frankly, the Internal Revenue Code doesn’t use the word, “alimony or support,” in its defining language.
As long as those requirements are met, then what we’re looking at is a transfer of income from the paying spouse to the recipient spouse. And it’s the recipient spouse who pays the tax on that.
You haven’t asked me this question, but there is a hybrid of sort called, “family support.” And family support involves a payment that is for a dependent spouse and minor children without that payment being broken down between how much goes to the child and how much goes to the supported spouse. There are a list of requirements for something to be called family support, but even though there is a portion of that payment that supports minor children, that family support payment would be entirely tax deductible to the payer and entirely taxable and income inclusive to the recipient.
Now all of this being said I want to make clear I am expressing my understandings as a family lawyer of the tax aspects of this and I would want any one of my clients to consult independently with a tax expert on these issues.
Leslie Shaw practices family law in both California and Nevada, and has been involved in close to 1,000 family law matters largely involving litigation throughout his 40 year career. He is also a Certified Family Law Attorney, a status granted by the California Board of Legal Specialization. To learn more about Leslie and his practice, please visit www.ljslawoffice.com.