Not Just a Tax Case: Drafting Lessons for Divorce Lawyers from DiTullio v. Commissioner
Many matrimonial lawyers don’t spend much time thinking about Tax Court decisions, and for good reason. We don’t give tax advice. We disclaim this repeatedly!
But a recent Tax Court case is a reminder that what we draft in divorce agreements and judgments can come back years later in entirely different courts, with real financial consequences for clients.
The United States Tax Court just came down with a decision in, DiTullio v. Commissioner, T.C. Memo 2025-120, about divorce drafting, and how courts outside the matrimonial law system interpret our language quite literally, without perhaps the assumptions that a matrimonial court might be able to read into a judgment.
Before going any further, let’s get this out of the way, because every matrimonial lawyer says it so often it may as well be on a loop: this post is not tax advice. Rather, it’s about what matrimonial lawyers can learn from the recent federal tax court decision.
Drafting Lessons from a Case That Wasn’t Supposed to Be About Divorce
In DiTullio, a former husband paid his ex-wife $50,000 following a retroactive disability pension distribution. Years earlier, their divorce judgment said the wife “shall be entitled to share” in retroactive benefits and contemplated a QDRO, but no QDRO was ever prepared. Instead, the parties later entered into an order on consent requiring a direct payment.
When the husband later tried to characterize that payment in a tax-advantaged way, the Tax Court didn’t care what anyone intended. It asked a much simpler question: What obligation did the divorce documents actually create?
Practitioners often rely on shorthand language, assume statutory defaults will fill in gaps, or expect later implementation documents to “clean things up.” But when another court reads a judgment years later, all of that context disappears. In this case, at the time of the divorce, a QDRO was anticipated. In DiTullio, the husband argued that pension plan rules should govern, including provisions that would stop payments at the recipient’s death. The Tax Court rejected that argument outright because no QDRO was ever prepared or entered.
In this case, neither the judgment nor the subsequent order said what would happen if the wife died before payment was made. The Tax Court concluded that the obligation survived, and could be enforced by her estate.
That could be uncomfortable for matrimonial lawyers who would rather death end the financial obligations of their client, or for the benefit to revert back to the survivor.
Practice tip: If an obligation must terminate upon death, say so. If it doesn’t, say that too. Silence invites interpretation.
The “We’ll Do the QDRO Later” Problem- If this case feels familiar, it’s probably because most New York matrimonial lawyers have lived it:
Judgment says a QDRO will be prepared
Everyone moves on
Years pass
The pension pays out
Suddenly, the QDRO matters
A practical takeaway- A contemplated QDRO that never gets done may as well not exist. If later events unfold without it, this case tells us that courts will fall back on the judgment’s plain language, no matter how incomplete that language may be.
Matrimonial practitioners often negotiate with equity, intent, and overall fairness in mind. That works well in Supreme Court. But as we see in this recent decision, Tax Court judges, and other non-family courts, read divorce documents like contracts, not settlements.
So, for New York matrimonial practitioners, the lesson isn’t to become tax experts. It’s to recognize that: Good matrimonial drafting isn’t just about getting through the divorce, it’s about protecting clients years later, in forums we’ll never appear in.
That means:
Addressing death contingencies explicitly;
Following through on QDROs and implementation steps;
Avoiding vague entitlement language; and
Drafting with the assumption that someone hostile, literal, and unfamiliar with family law may read the document someday.
Again, That’s not tax advice; It’s good practice.
Disclaimer: Obligatory but essential ending: this isn’t legal advice, and it isn’t tax advice. If this case teaches anything beyond drafting lessons, it’s that saying “I’m not your tax advisor” out loud (and in writing) is always a good idea.
-Alexandra Weaderhorn