Debt That Isn't Yours
Overdue child support debt is one of the legal obligations that causes the IRS to garnish tax refunds. If you file taxes separately from your spouse, your refund won’t be affected even if his refund is subject to garnishment. However, if you file a joint tax return, the IRS ordinarily will seize the entire refund to settle your spouse’s debt, even though the debt is not yours. To get the refund you are entitled to, you’ll need to reach out to the IRS.
To qualify as an injured spouse and protect your refund, you have to meet several IRS guidelines. First, the back child support isn't a debt you are legally responsible for. Also, you must have paid federal income tax or claimed a refundable tax credit for that tax year. This could come through withholding from your paycheck if you earned income at a job. If you don’t have income, haven’t paid any taxes and aren’t eligible for tax credits, your share of any joint refund would be zero.
Filling Out Form 8379
After leading you through a series of questions to determine whether you qualify, Form 8379 asks you for information from your joint tax return, such as income, adjustments to income, deductions, exemptions, credits other than the earned income credit, other taxes, federal income tax withheld and any other tax payments. The IRS determines the amount of the joint refund that you’re entitled to based on these figures.
Filing the Form
You can file Form 8379 along with your joint tax return. You can download it from IRS.gov and print it out. It is likely you won’t come across this form as part of the usual progression through an online tax program, so find “Injured Spouse Allocation” in the program's index or do an internal search for “injured spouse” or “Form 8379.”
According to the IRS, it generally takes about 14 weeks to process a Form 8379 filing or 11 weeks if it was filed electronically with your joint return. If you file the form separately – for example, if you learn about the garnishment only after you sent in your joint return -- it takes about eight weeks after the return has been processed.