When you file a joint tax return, both you and your spouse are usually responsible for the entire tax bill, including any extra tax, penalties, and interest charged by the IRS. This is called joint and several liability. This responsibility stays with you even if you later get divorced or if a divorce decree says your former spouse is responsible for the tax debt.
If you think your spouse or ex-spouse should be the only one responsible for all or part of an IRS tax debt, you can ask for relief by filing Form 8857, Request for Innocent Spouse Relief. The IRS will look at your situation and decide if you qualify for relief.
Who Should File Form 8857?
You might want to request Innocent Spouse Relief if:
- You filed a joint tax return with your spouse.
- The tax was understated because of your spouse's or former spouse's:
- Unreported income
- Incorrect deductions or credits
- Incorrect asset valuations or other reporting errors.
- You didn’t know, and had no reason to know, about the errors when the return was filed.
- You feel it would be unfair to hold you responsible for the tax liability.
If you’re married but didn’t file jointly and lived in a community property state, you might also qualify for relief from tax related to community income. These states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Situations the IRS Might Consider
When looking at a request, the IRS might take into account things like:
- Whether you got a significant direct or indirect benefit from the understatement.
- Whether your spouse or ex-spouse left you.
- Whether you’re divorced or legally separated.
- Whether it would be unfair to hold you responsible for the tax.
Domestic Abuse Exception
Even if you knew about the mistakes, you might still qualify if you were a victim of domestic abuse or violence and signed the return because you felt scared, pressured, or threatened by your spouse.
When You Might Not Qualify
You usually can't get Innocent Spouse Relief if:
- You actually knew about the errors on the return.
- A reasonable person in your situation would have known about the errors.
- You signed an Offer in Compromise for the same tax debt.
- You signed a closing agreement with the IRS about the same taxes.
- A court has already made a final decision denying relief for the same issue.
Other Relief Considered Automatically
When you file Form 8857, the IRS will automatically check if you qualify for:
Separation of Liability Relief
This applies in certain situations when you're divorced, separated, or no longer living with your spouse, and it lets the understated tax be divided between you and your spouse.
Equitable Relief
This might be available if you don’t qualify for Innocent Spouse Relief or Separation of Liability Relief, but it would still be unfair to hold you responsible for the tax debt.
You don’t need to send in separate requests for these relief options.
Important Deadlines
Request Innocent Spouse Relief within two years of receiving an IRS notice about an audit or tax error on a joint return.
If you get an IRS notice about taxes owed on a joint return, review it and request relief promptly if you qualify.
How to Request Relief
Submit Form 8857, Request for Innocent Spouse Relief to the IRS. They may ask for more documents if needed.
Navigation
To find Form 8857:
- Go to Federal Section
- Select Miscellaneous Forms
- Choose Request for Innocent Spouse Relief (Form 8857)
Note: Filing Form 8857 may delay processing due to IRS manual review.
What Happens After Filing?
After you submit your request:
- The IRS reviews your application.
- They usually contact your spouse or ex-spouse to involve them.
- The IRS assesses all related facts.
- A determination letter with their decision is sent to you.
IRS Response Time
The IRS may take up to six months or more to process an Innocent Spouse Relief request. Meanwhile, continue filing and paying your current taxes as usual.
Additional Resources
- IRS Form 8857 – Request for Innocent Spouse Relief
- IRS Publication 971 – Innocent Spouse Relief
- IRS Separation of Liability Relief
- IRS Equitable Relief
Disclaimer: This article is intended for general informational purposes only and should not be considered tax, legal, or financial advice. Individual circumstances may vary.