What’s the Difference between Injured Spouse and Innocent Spouse Relief?

A lot of people get tax benefits from getting married. Filing jointly could mean you’re in a lower tax bracket, you may be eligible for a retirement account when you weren’t previously, and you may be able to find other tax or financial benefits.

But what many people don’t understand is that joint filing—and even separate filing in some states—can mean you’re liable for the tax debt of your spouse. This is where innocent and injured spousal relief comes into play. 

What’s the difference between an injured spouse vs innocent spouse? These two terms are often used interchangeably but are very different. Innocent spouse relief is something you can apply for in certain scenarios, like if your spouse dies and leaves the country without paying their tax bill or they underreport their income and get penalized.

Injured spousal relief is a bit different. This is when your tax refund covers your spouse’s tax debt, and you want to reclaim that money.

The rules around these forms of tax relief, including whether or not it matters if you file jointly or separately, can get complicated fast. This guide breaks it down.

Who Is an Injured Spouse?

Let’s first talk about what an injured spouse is. Say you and your spouse file taxes jointly, and your spouse owes tax debt while you get a refund back. Part of your refund could be used to pay your spouse’s tax bill or other debts, including child support, federal debt, state income tax, or state unemployment debt.

If this is the case, you would be an injured spouse if you were not responsible for this debt that was paid with your tax refund. You have the right to reclaim it. The IRS will send you a notice that outlines your refund amount, how much was applied to the debt, and agency contact information. 

You’re eligible to apply for injured spouse relief if you:

• Filed jointly with your spouse
• Had part of your refund applied to your spouse’s debt
• Were not responsible for that debt

You have three years from the return filing date, or two years from when the tax was paid, whichever is later, to apply for injured spousal relief. You’ll use Form 8379, Injured Spouse Allocation, to make the request, and the IRS says processing can take up to eight weeks. 

If you don’t agree with the information provided on your IRS notice, follow the guidelines on the notice. Get in touch with a tax expert who can help you understand the notice.

Who Is an Innocent Spouse?

Now, on to innocent spousal relief. An innocent spouse is someone who applies for relief from being responsible for their spouse’s tax debts. This could apply if they weren’t aware their spouse underreported their income or made an error on their tax return, or their spouse left the country or died without paying off their tax debt. 

You can apply for innocent spousal relief if you filed a joint return (although the next section discusses the exceptions). Filing jointly means that both spouses are jointly and severally responsible for all taxes due under that return. If one spouse dies, leaves the country, or underreports income on their tax return, the other spouse is still responsible for the other spouse’s tax responsibility—that is, unless they get innocent spouse relief. 

This relief only applies to the other spouse’s income tax bill, so you can’t get this form of relief on your own income taxes. It also won’t apply to household employment taxes, individual shared responsibility payments, business taxes, or trust fund recovery penalties. 

You have two years from receiving the IRS notice of an audit or taxes due to request innocent spouse relief. Use Form 8857, Request for Innocent Spouse Relief, to apply. The IRS says reviewing your request could take up to six months.

Most of the time, this kind of relief can only be claimed if you file jointly. However, things become more complicated with community property states, which will be discussed next. 

Community Property States and Spousal Relief

If you file separately from your spouse, you are only responsible for their portion of the tax debt if you live in a community property state. Currently, there are nine community property states:

• Arizona
• California
• Idaho
• Louisiana
• Nevada
• New Mexico
• Texas
• Washington
• Wisconsin

These states have laws in place so that, even if you file separately with your spouse, you’re still responsible for the other person’s tax debts. Thus, you can apply for innocent spouse relief if you live in a community property state, whether you file jointly or separately.

In non-community property states, you can only apply for spouse relief if you file jointly. Why? In non-community property states, there’s no need to apply if you file taxes separately since you’re not held liable for your spouse’s debts if you file separately. 

So, if you file separate tax returns, figure out which kind of state you live in to determine whether or not you need to request relief.

When to Seek Professional Help with Spouse Relief

Getting spouse relief of any kind can be stressful. You need to carefully read through IRS requirements, and the agency’s language is often confusing and time-consuming. These matters can be serious, especially if you find out your spouse owes a lot of money or did something illicit on their tax return. 

Get in touch with a tax expert who can help. The team at W Tax Group will talk to you about your situation, gather all the facts, and guide you on the best way forward. We help with problems ranging from unpaid taxes to unfiled returns to federal tax liens to requesting spouse relief. Contact W Tax Group today to set up a consultation. 

FAQs about Injured vs Innocent Spouse Relief

What’s the difference between an injured and innocent spouse?

An injured spouse is someone who filed jointly with their spouse and used part of their tax refund to cover their spouse’s tax debts. As an injured spouse, you have the right to reclaim what was taken from your tax refund.

An innocent spouse is someone who filed jointly (or separately in a community property state) and wasn’t aware of an error or fraudulent statement made on their spouse’s tax return or their spouse died or left the country without paying their tax debt.

How do I know if I should file as an innocent spouse vs injured spouse?

First, determine what you are applying for relief from. If you used some of your own refund to cover your spouse’s debt, you are an injured spouse. If you’re responsible for your spouse’s tax obligations after they died, left, or understated their taxes on your joint return, you are an innocent spouse as long as you weren’t aware of the errors they made.

What forms are required to file for injured spouse relief?

You will use IRS Form 8379 to apply for injured spouse relief. Follow the instructions on the notice you received from the IRS about covering your spouse’s tax debt if you need to contact the agency, or talk to a tax expert. 

What forms are required to file for innocent spouse relief?

File IRS Form 8857 when you are requesting innocent spouse relief. This will be after receiving a notice from the IRS about an outstanding tax debt owed by your spouse that you’re responsible for.

What is a community property state?

Community property states treat your shared tax liability with your spouse the same whether you file jointly or separately. In these states, you will still be responsible for your spouse’s tax debt even if you file separately. This means you can apply for innocent spouse relief if you live in these states and also filed separately. 

What if I didn’t consent to filing jointly with my spouse?

If you’re married but you didn’t consent to filing a joint tax return with your spouse, you don’t need to request innocent spouse relief. The IRS states that this makes your election to file jointly invalid. Read all information closely on the notice the IRS sent you. Talk to a tax expert who can help you navigate this situation.

Lead Tax Attorney at The W Tax Group

Stephen A Weisberg