Injured Spouse

An injured spouse should not be confused with an innocent spouse. A taxpayer who has filed a joint return with her spouse and all or part of her share of an overpayment was applied against her spouse’s past federal tax liability, child or spousal support, federal non-tax debt, or state income tax may file a claim as an injured spouse to request a refund of the amount of offset. For example, if a spouse is in arrears on his child support, it is possible that any refund generated by the filing of a joint tax return, may be withheld by the IRS and applied toward the arrearage, even if the refund is entirely attributable to the spouse’s over-withholding.

A spouse who has income and withholdings or estimated tax payments and who files a joint return with an individual who owes past-due child support  requests a refund of his or her allocation of the joint return refund on Form 8379, Injured Spouse Claim and Allocation).

Requirements

  1. The taxpayer seeking relief is not required to pay the past due amounts;  rather, the spouse in default is responsible for the debt
  2. The taxpayer reported income such as wages, taxable interest, etc. on the joint return
  3. The taxpayer made and reported payments such as Federal income tax withheld from taxpayer’s wages or estimated tax payments or the taxpayer claimed the Earned Income Tax Credit or other refundable credit
  4. Form 8379

Resources

Documents on IRS.gov
IRS Form 8379: Injured Spouse Claim and Allocation