Innocent spouse relief: when it's not your tax bill
When you file a joint return, you're both responsible for the tax, even if only one of you caused the problem. Innocent spouse relief can take you off the hook for tax your spouse or ex-spouse should have paid.
The short version
- There are three kinds of relief: innocent spouse, separation of liability, and equitable relief.
- You apply for all three on one form, Form 8857.
- Two of the three generally have a 2-year deadline from when the IRS first tries to collect from you.
- "Injured spouse" is something different: it's about getting back your share of a refund.
1The three kinds of relief
| Type | When it may fit |
|---|---|
| Innocent spouse relief | Your spouse left out income or claimed improper deductions on a joint return, and you didn't know and had no reason to know. |
| Separation of liability | You're divorced, legally separated, widowed, or haven't lived together for 12 months. The extra tax is split between you based on who it belongs to. |
| Equitable relief | You don't qualify for the other two, but it would be unfair to hold you responsible, including for tax that was reported correctly but never paid. |
The IRS considers things like whether you knew about the problem, whether you benefited from it, whether there was abuse, and your current finances.
2Deadlines
- Innocent spouse relief and separation of liability: generally within 2 years of the IRS's first collection activity against you.
- Equitable relief: generally while the IRS can still collect the tax, or within the time to claim a refund if you've already paid.
3How to apply
- Gather records for the years involved, such as the returns, divorce papers, and anything showing what you knew.
- File Form 8857, Request for Innocent Spouse Relief. One form covers all three kinds.
- Expect the IRS to contact your spouse or ex. The law requires it. In cases of domestic abuse, there are protections for your safety and information.
- Respond to IRS questions, and appeal if the decision isn't right.
4Injured spouse vs. innocent spouse
These sound alike but are different. Injured spouse relief (Form 8379) is for when the IRS took your share of a joint refund to pay your spouse's separate debt, like back child support or a student loan. Innocent spouse relief is about not owing tax that belongs to your spouse.
Common questions
Does my divorce decree protect me from the IRS?
No. A divorce decree can say who's responsible, but the IRS isn't bound by it. Joint returns make both spouses liable unless you get relief.
Can I get relief if we're still married?
Yes, for innocent spouse relief and equitable relief. Separation of liability requires that you be divorced, separated, widowed or living apart.
Will the IRS stop collecting while it reviews my request?
Generally, the IRS can't levy for the tax in question while it considers a timely request for innocent spouse relief or separation of liability.
Paying for your ex's tax mistakes? Let's see if you qualify.
Answer 3 quick questions and a licensed tax pro will review your situation for free.
Get Your Free Consultation →Keep reading
Written by Jonathan Samuel, EA, an Enrolled Agent licensed to represent taxpayers before the IRS. This page is general information, not advice for your specific situation.