So you filed your tax return expecting a nice refund and then nothing comes back. You go to the IRS “Where’s my Refund?” website and find a note that says your refund was held because of a prior tax debt—but you don’t have one. Turns out your beloved spouse owed back taxes from before you were married. Is there anything you can do?
Yes, there is. You may be able to file for Injured Spouse Relief.
How do you know if you qualify as an injured spouse? First, you must have made and reported tax payments. That means you either had income tax withheld from wages or you made estimated tax payments, or you claimed a refundable tax credit like the Earned Income Tax credit. Second, you must not be legally obligated to pay the past-due amount. For example, you weren’t married to your spouse when he or she incurred the debt.
Are there any kinds of debt besides federal income tax that can cause my refund to be taken? Your refund can be taken for state income tax, child or spousal support, or federal student loans.
Note: if you live in a community property state, there are special rules. If you’re in one of those states, you’ll need to see IRS Pub 55.
If you filed a joint return and you are not responsible for your spouse’s debt, you may request your portion of the refund by filing the Injured Spouse Allocation form, Form 8379.
If you haven’t filed yet, you can submit form 8379 along with your tax return. If you’ve already filed and received a federal offset notification, you can submit a form 8379 by itself. You can e-file the 8379 when it’s submitted with a return. If you’re sending in a paper tax return (okay, you know you should be e-filing whenever possible) then you need to write “INJURED SPOUSE” at the top left corner of your 1040.
If you’re filing the 8379 by itself; make sure that you list both spouses’ social security numbers in the same order as they appeared on your income tax return. I know this sounds kind of silly but it’s really important to put the social security numbers in the right order. You might be thinking that the spouse that’s injured should have his/her name on the top, but put your names in the same order as on the tax return.
How Come the Injured Spouse Allocation Form doesn’t tell you how much you’ll get back? Good question, but it doesn’t. The IRS will determine how much of your refund you will receive. Part of the issue is that allocation for couples from the community property states will be different from couples who aren’t in community property states.
How long will it take me to get my refund after I file an injured spouse claim? It’s going to be slower than a regular refund. If you e-file a form 8379 along with your federal return, it will take about 11 weeks to process. If you mail your return in your refund will take around 14 weeks. If your tax return was already file and you’re sending in an Injured Spouse Allocation by itself, expect the IRS to take about 8 weeks to process it.
Am I better off just filing separately? Sometimes, yes. But if you qualify for any of the tax credits that aren’t allowed to couples who file separately then the Injured Spouse Allocation is your best choice despite the delay to your refund.
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Here are some links that might help:
EIC questions of any kind: http://www.irs.gov/Individuals/Earned-Income-Tax-Credit-(EITC)-%E2%80%93–Use-the-EITC-Assistant-to-Find-Out-if-You-Should-Claim-it.
How to find free tax preparers: http://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-Volunteers
How to find your local IRS office: http://www.irs.gov/uac/Contact-Your-Local-IRS-Office-1
Hi Amanda,
Often when paperwork gets mailed to the wrong office it does get forwarded. I would call the IRS and see if it’s been recorded as having been received. It’s probably not processed yet, but there should at least be a notification that it arrived. If they can’t find any such documentation, then I’d resend. But I wouldn’t resend without calling first.
Hi Video Portal,
You’re absolutely right. But if your refund gets withheld and you need to file the 8379 after the fact, that form must be mailed in. But the next year, you would file it with your return and you could e-file it.
Hi Jesse,
You should file injured spouse. You will claim the children as yours on the tax return. You are the step father, you are entitled to claim them. You need the child tax credit money to feed the kids living in your house, under your care. Make sure you put those kids as yours when you fill out the paperwork. That is a legitimate claim. (People often think they can’t claim their step kids, but they can.) Good luck.
Hi Lori,
I apologize for being so late on this response. I’m guessing that your issue has already been solved. What happened is that when you e-filed, that return got processed right away – and the IRS took the money. Since you mailed the injured spouse claim later, it takes awhile to process. If you don’t have your refund yet, it will come soon.
I filed an injuried spouse form after our taxes were done and found out there was an offset. It was a student loan from before we were married. However, we are thinking it was actually mailed to the wrong IRS office. So what should we do? Will it still be processed?
If an agency notifies either you or your spouse that your tax refund will be withheld to pay your spouse’s debt, you may file the injured spouse claim with your joint tax return. Complete Form 8379 and attach it to your next tax return. The inclusion of Form 8379 on a tax return will not prevent electronic filing of that return.
I’m not Sure if you can answer this but my wife tried to work one day in 2016/made 63 dollars and paid no taxes that day. She was in a car wreck and I’m the only one who has worked because of her back surgery. No help from the dad of our 2 children. All our money was taken due to her student loan from 2010. We were married 2016.I am not responsible. Theres no way I can get child tax credit with what I paid In maybe a chance?
We filed February first of this year I claimed injured spouse as my husband owes back child support on Feb 27 it had sent to my bank however all of the refund his and mine were posted to his debt!! I filed electronically put mailed the injured spouse claim two days later but it says it all went to his back debt state and federal help?
Hi Bill,
That’s pretty much the case. Now if you’re in a community property state, it’s figured differently, but for most states I’d expect you to get it all back.
So if my return was taken in it’s entirety for my wife’s owed student loan debt but she had no income or worked for that year then shouldn’t i receive the original refund amount after sending in the injured spouse form ?
Hi Melody,
If you efiled the return, you don’t need to mail in your w2s. If you mailed your return, you should mail the w2s with it, although the IRS probably has that information already as your employer sends them in. If the IRS needs your W2, they’ll send you a letter asking for it.
Last year I filed injured spouse. I did not send our W2s with it. I received my check.
This year I also filed injured spouse and did not send our W2s with it. Is that going to be an issue? I’ve seen a few things saying I should’ve sent the W2s also??! I’m so confused.
Hi Amanda,
You should file the 8379 form as soon as possible. Make sure you attach the W2s that would go with your tax return to the 8379 when you file it. Here’s a link to the IRS instructions for the return. https://www.irs.gov/pub/irs-pdf/i8379.pdf
Is there a deadline for sending in a injured spouse form? We filed jointly and they took the refund I owe a student loan, my husband don’t and we just found out about the injured spouse
Hi Dana,
Innocent spouse and injured spouse are different things. Here is information about innocent spouse relief if that’s what you’re really looking for: http://robergtaxsolutions.com/2013/06/innocent-spouse-relief/
With injured spouse-that’s where the IRS takes your refund because your spouse has an old debt like child support or a student loan, you file that as soon as you learn there is a problem. Usually within the same year, but you can file as long as the tax period remains open (three years.)
With innocent spouse – that’s usually a situation where you had no knowledge of what you spouse had done with the taxes, although the filing period is usually two years, there are exceptions and you can go back much further depending upon the situation.
Hi, how many years back can u file innocent spouse release? Is it only for previous year ? Thanks Dana
Hi Paula,
I’m so behind on answering this question, I’m assuming that you’ve got your money already. If not, I’d say it’s time to call the IRS to follow up.
My husband and I filed injured spouse this year and we received our letter, this past Friday, stating how much we would be receiving back. How long does it usually take to get the refund check after receiving your letter in the mail?
Hi Dawn,
I have no experience with the IRS going back 5 years and taking your money back from you.
READERS? Anybody out there have some experience with this? Please make a post. Thanks.
Personally, I’d spend the money on my kid. That’s what it’s for. I mean, what’s the point of them releasing your child support if they’re going to take it away 5 years later? But that’s my opinion, I’m not coming at this from experience on this one.
Hi Le Chau,
First, did you file the injured spouse form with your tax return or after? Because if you filed the injured spouse after you’ll have to wait for them to sort through whether you get that money back or not.
But if they took your refund and sent it to a collection agency despite having filed the injured spouse form–then you’ll want to check–why? Is there an outstanding debt for you as well?
If not, are you sure all of the refund belongs to you? If the money should all be yours, then perhaps you just need to give the IRS a little more time to process it all. Injured spouse claims are taking up to 16 weeks these days.
If it’s been over 16 weeks and you’re positive there is no debt for you and the refund is totally yours, then you’ll need to contact the IRS and talk with them. Maybe they can explain why the money went to a collection agency. And if they don’t have a good reason, then maybe you’ll need to contact the Taxpayer Advocate to get involved.
Hi Jan,
I filed the Injured Spouse, but the refund was forwarded to a collecting agency anyway. My husband does not work, so the money they took was all mine. What can I do?