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Spouses, divorce and the IRS

Your spouse's tax problem does not have to be yours.

When you sign a joint return, the IRS can collect the whole bill from either of you. The tax code also gives you ways out. These guides from tax attorney Darrin T. Mish explain innocent spouse relief, injured spouse refunds, divorce and filing after separation, in plain English, with the law cited.

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Start with what happened

  1. The IRS says we owe more on a joint return, and it was my spouse's income or deduction.
  2. The return was right, but my spouse never paid the balance.
  3. The IRS took our joint refund for my spouse's old debt.
  4. Our divorce decree says my ex pays the IRS, but the IRS is coming after me.
  5. We are separated and I don't know how to file this year.

Three ways out of a joint tax bill

Section 6015 of the Internal Revenue Code offers three kinds of relief. One Form 8857 can request all of them.

 Innocent spouse, 6015(b)Separation of liability, 6015(c)Equitable relief, 6015(f)
CoversUnderstatements from your spouse's erroneous itemsUnderstatements, allocated as if you filed separatelyUnderstatements and tax reported but unpaid
Marital statusAnyDivorced, legally separated, widowed, or apart 12 monthsAny (weighed as a factor)
KnowledgeFails if you knew or had reason to knowFails only for items the IRS proves you actually knewOne factor among several
Deadline2 years after collection activity against you2 years after collection activity against youCollection statute, or refund period for paid amounts
RefundsPossibleNot allowedPossible

Read the full comparison

Innocent spouse relief

Section 6015(b), (c) and (f): who qualifies, how the IRS decides, and what to do when it says no.

Abuse, Financial Control and Innocent Spouse Relief

How domestic abuse and financial control change an innocent spouse claim under IRC 6015 and Rev. Proc. 2013-34, and how the IRS handles your privacy.

Actual Knowledge and Separation of Liability

The IRS can defeat a 6015(c) election by proving you actually knew about the item. What counts as actual knowledge, who proves it, and the abuse exception.

Economic Hardship in Equitable Spousal Relief

How the IRS decides economic hardship for equitable innocent spouse relief: the 250% poverty guideline test, the $300 cushion, assets, and household expenses.

Relief When Your Spouse Didn't Pay the Tax Owed

Your joint return was correct but your spouse never paid the balance. Equitable relief under IRC 6015(f) is the only option. How underpayment cases work.

Innocent Spouse Relief After Your Spouse Dies

Widowed and facing an IRS bill from joint returns with your late spouse? How innocent spouse, separation of liability and equitable relief apply to survivors.

The 3 Types of Innocent Spouse Relief Compared

Section 6015 gives three ways out of joint IRS liability. Here is how innocent spouse, separation of liability and equitable relief differ, and which fits you.

The "Reason to Know" Test in Innocent Spouse Cases

Would a reasonable person in your shoes have known about the error? How the reason to know test works in innocent spouse claims and how to meet it.

Section 6015(b) Innocent Spouse Relief Requirements

The five requirements for classic innocent spouse relief under IRC 6015(b), what an erroneous item is, and how partial relief works when you knew part of it.

Separation of Liability Under IRC 6015(c)

Divorced, separated or living apart? Separation of liability under IRC 6015(c) can cap your share of a joint deficiency. Who qualifies and how it works.

Equitable Relief Under 6015(f): The IRS Factors

How the IRS decides equitable innocent spouse relief under IRC 6015(f) and Rev. Proc. 2013-34: threshold conditions, streamlined relief and the seven factors.

The Significant Benefit Factor in Spousal Relief

Did you benefit from the unpaid tax beyond normal support? How the IRS applies the significant benefit factor in innocent spouse and equitable relief cases.

The claim process and Tax Court

Form 8857, deadlines, the other spouse's role, collection holds, refunds and Tax Court review.

Deadline for Equitable Innocent Spouse Relief

Equitable relief under IRC 6015(f) has no two-year rule. The real deadlines are the collection statute for unpaid tax and the refund period for tax you paid.

How to File Form 8857, Part by Part

A part-by-part walk through Form 8857, Request for Innocent Spouse Relief: what each section asks, what to attach, where to send it, and costly mistakes.

When Innocent Spouse Relief Is Off the Table

An offer in compromise, a closing agreement or a prior court case can bar innocent spouse relief. Res judicata, meaningful participation and second claims.

Getting a Refund With Innocent Spouse Relief

Already paid your spouse's tax? Innocent spouse and equitable relief can produce refunds; separation of liability cannot. What qualifies and the limits.

The Two-Year Deadline for Innocent Spouse Relief

When does the two-year clock for innocent spouse and separation of liability start? What counts as IRS collection activity, what does not, and next steps.

Can the IRS Collect While Your Claim Is Pending?

Once you file for innocent spouse relief, IRC 6015(e)(1)(B) bars levies on the covered liability. What the IRS can still do, how long it lasts, and the cost.

Your Ex Filed for Innocent Spouse Relief. Now What?

The IRS sent a letter saying your ex filed for innocent spouse relief. Your rights as the nonrequesting spouse: responding, appealing, Tax Court intervention.

Innocent Spouse Relief in a CDP Hearing or Deficiency Case

You can raise innocent spouse relief in a collection due process hearing or a Tax Court deficiency case. How each route works and why raising it there matters.

Petitioning Tax Court After an Innocent Spouse Denial

The IRS denied your innocent spouse claim. How a Tax Court petition under IRC 6015(e) works: the 90-day deadline, the record, small cases and your ex.

What Happens After You File Form 8857

After you file Form 8857, the IRS contacts your spouse, issues a preliminary determination, allows appeals, then sends a final determination. Each stage.

Injured spouse and refund offsets

When your share of a joint refund is taken for your spouse's debt, and how Form 8379 gets it back.

Community Property States and Spousal Tax Relief

Separate returns don't always separate you from your spouse's income in community property states. How IRC 66, Form 8857 and Form 8379 work there.

Injured Spouse Relief and Form 8379

The IRS took your joint refund to pay your spouse's old debt. How injured spouse relief and Form 8379 work, who qualifies, deadlines and processing times.

Injured Spouse vs. Innocent Spouse: Which One Applies?

Injured spouse (Form 8379) and innocent spouse (Form 8857) solve different problems. How to tell which you need, when you need both, and what each can recover.

Divorce, separation and filing status

What a divorce decree can and cannot do against the IRS, and how to file once you have separated.

Why Your Divorce Decree Does Not Bind the IRS

Your decree says your ex pays the joint tax debt. The IRS can still collect from you. Why that is, and how the decree still helps in an innocent spouse claim.

Head of Household While Separated: "Considered Unmarried"

Still married but living apart with your kids? You may qualify as "considered unmarried" and file head of household under IRC 7703(b). The tests, step by step.

Forged Signature or Duress on a Joint Return

If your signature was forged or you signed under duress, there may be no valid joint return at all. How the duress rule works and how to raise it with the IRS.

Filing Jointly or Separately After You Separate

Separated but not divorced? You are still married for tax filing. The trade-offs between filing jointly and separately, and why liability matters more than tax.

Handling IRS Debt in a Divorce Settlement

What to put in a divorce settlement about joint IRS debt, future audits, refunds and filing status, so the agreement helps you if the IRS comes calling.

Switching From Separate to Joint Returns, and Back

You can change from separate returns to a joint return within limits under IRC 6013(b). You generally cannot go from joint to separate. The rules and the traps.

Who writes these guides

Darrin T. Mish has been licensed to practice law since 1993. He is a member of The Florida Bar and is also admitted in Colorado and Texas, before the United States Tax Court, and before the Supreme Court of the United States. Before tax law, he worked as a public defender. His firm, the Law Offices of Darrin T. Mish, P.A., is based in Tampa and represents taxpayers before the IRS nationwide.

More about Darrin

Other IRS problems

General guides on audits, collection and resolution options.