How to Distinguish Between Injured Spouse and Innocent Spouse

Injured Spouse Basics

An injured spouse has an expected tax refund withheld for a spouse’s past-due debt. This occurs when a couple files a joint return, and the refund isn’t sent because of a federal debt like child support, defaulted student loans or an old tax bill. For the debt to qualify, it must have been incurred solely by the other spouse. For example, an overdue tax obligation from your husband from when he filed as a single man before you were married would qualify. A similar bill from your first year together when you filed as “married filing jointly” would be classified as a debt belonging to both of you, and therefore not qualify.

Qualification Criteria

To qualify as an injured spouse after filing a joint tax return, you must meet three conditions. The debt must not be your responsibility to pay; it has to be something entirely held by another. You must have reported income on a joint return, since if your income is zero, your share of any refund is likewise zero. You also must have made and reported payments on the joint return, or claimed a refundable tax credit such as the earned income tax credit.

Innocent Spouse Basics

In contrast to an injured spouse, an innocent spouse faces additional tax owed because a current or former spouse did not report income, reported income incorrectly or claimed deductions or credits you were not entitled to, according to the IRS. While an injured spouse seeks relief from debts incurred separately, the innocent spouse seeks relief from this extra tax debt and accompanying legal risk that occurred when the couple was together. However, while the debt may have been originated together, in this case it is attributable solely to the negligence of the other spouse. To qualify, you must have filed a joint return and prove that the understatement of tax was solely attributable to your spouse, that you did not know and had no reason to know of the deficiency, and that it would be unfair to hold you liable.

File the Forms

If you have a claim as an injured spouse, fill out IRS Form 8739. You can attach it to your tax return if you’ve gotten notice of a potential offset but haven’t yet filed your taxes, or you can send it afterward if you’ve already filed. Send it to the same IRS location where you filed your tax return as soon as possible to protect your refund. File IRS Form 8857 to request innocent spouse relief. You must file Form 8857 within two years of the IRS’s first attempt to collect the tax from you in most cases. Send it to one of the addresses or fax numbers shown on the form.