SCHILLING v. COMMISSIONER OF INTERNAL REVENUE
T.C. Memo. 2012-256
United States Tax Court.
Filed September 5, 2012.
In March 2003, after 24 years of marriage and having five children together, petitioner and her ex-husband separated. During their marriage and at the time of their separation petitioner and her ex-husband apparently lived in Ohio.
On April 22, 2003, petitioner and her ex-husband entered into a separation agreement which specified that her ex-husband would pay her spousal support of $2,450 per month for six years but which also specified incremental reductions in the $2,450 spousal support payments as their three youngest children turned 18 or left home for college during their 18th year, whichever occurred later. If the children did not go to college in their 18th year, the separation agreement specified that the spousal support would be reduced in September of each child's 18th year.
Also on April 22, 2003, petitioner and her ex-husband entered into a plan for shared parenting. This plan was amended in July 2003 and provided—
Father * * * will pay to * * * [petitioner] $0.00 per month, per child. * * * The deviation from guideline [child] support is made as a result of the long term spousal support payments in the amount of $2,450 per month described in the parties separation agreement which are calculated to provide support for the minor children as well as to * * * [petitioner].
On October 16, 2003, petitioner and her ex-husband were divorced, and a decree of divorce was entered by the court of common pleas, Butler County, Ohio, attached to which was the April 22, 2003, separation agreement. The parties have stipulated that at the time of the divorce three of their five children were still minors and had not left home for college. Still living at home were child A, born February 17, 1985, child B, born September 9, 1986, and child C, born August 31, 1988.1 These children resided primarily with petitioner.
The specific relevant language of the April 22, 2003, separation agreement provided as follows:
Husband shall pay to * * * [petitioner] spousal support in the amount of $2,450.00 per month for a period of six years commencing on the first day of the first month after the date of separation. The amount will be lessened by $125.00 per month when (1) * * * [child A] turns 18 or leaves the house for her first year of college, whichever occurs later and by another $200.00 per month when (2) * * * [child B] turns 18 or leaves the house for his first year of college, whichever occurs later. The amount will be lessened by $200.00 per month when (3) * * * [child C] turns 18 or leaves the house for his first year of college, whichever occurs later. If for some reason, any of the three aforementioned children do not go to college at age 18, the amount will be lessened in September of the 18th year.