¶1dissenting: I cannot concur in the majority result in this case because, in my view, it has the effect of nullifying the basic language of section 22 (k). In that section Congress obviously granted relief to husbands who paid periodic amounts to their wives incident to a divorce or legal separation only when such amounts are paid in discharge of an obligation arising because of the marital or family relationship. Unlike Thomas E. Hogg, 13 T. C. 361, relied upon by thé majofity as most strongly supporting its conclusion, the divorce court in this case specifically and unequivocally severed and put an end to the family marital obligation of the husband to support his wife. From that point on, the oral agreement and the written agreement entered into subsequent to the divorce had the same character from the standpoint of section 22 (k) as though the contract had been made by the petitioner to support a person to whom he had never been married.
¶2It is true the contract, if otherwise valid, under Illinois law retained its life beyond the divorce, but the consideration thereafter ceased to be the family obligation of petitioner. Even though the contract outlived the divorce, it was still subject to all the infirmities of contracts generally, such as failure or lack of consideration. The majority has reached its conclusion on what is not the crucial point of the case, namely, whether the agreement being initially an oral one was incident to a divorce in view of its not having been reduced to writing until subsequent to the decree. Even though it had been originally in writing prior and incidental to and in anticipation of the divorce decree, the marital obligation could not possibly be said to remain as a basis for the contract after the decree of the divorce court which had jurisdiction over the marital status of the parties where that decree had expressly not only severed the marital relationship but barred any obligation of petitioner to his former wife growing from that relationship. This is a new issue before this Court and the majority opinion unwarrantedly extends the operation of the law beyond the point Congress plainly and obviously intended.