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
I just spoke with the Child support office in Florida. The IRS is currently holding a payment from my ex for child support (it is held for 170 days to give the new spouse time to file the form 8379). They told me today that if all the money is released, because the new wife did not file form 8379, that she has five years to go back and file against this money. Do you know if this is the case? Being a single mom with a college kid, I am now wondering if I need to tuck this money away for five years just in case.
Hi Jared A.,
If you live in Hawaii, you would mail the form to
Department of the Treasury
Internal Revenue Service
Fresno, CA 93888-0002
Hi Catherine,
If you earned all the income, then most likely you’ll get your full refund. It’s hard to tell without looking at the return, but generally if you were to file as married filing separately would you get all the refund? I’m guessing yes. It’s not perfect, but it’s a pretty good guideline.
Hi Krystle,
Since you’ve already filed your tax return, you’ll have to mail your injured spouse relief request. Next year, you can efile it with your tax return. I’m so late in responding I’m guessing that you’ve already received your IRS notice that your refund was offset. And yes, I like to wait for the IRS notices before filing paperwork. If you file things before the IRS knows you’re supposed to file them, paperwork winds up in the trash and you wind up filing again.
I am from Hawaii, trying to send my 8379 form, the question is where do I send it? please help.. thank you…
Jared A
Hi jan,
I filed married filing jointly for me and my husband. I did not know that he has student loan in default, so IRS tookt all our tax refund. This year I am the only one working and we have a kid. I filed for injured spouse upon learning that they offset our refund. We don’t live on a community property state, does that mean i will get the money back or it will be lesser than its original amount? Any thoughts would be gladly appreciated. Thanks.
I’ve already filed my return, but haven’t recieved my refund yet and I just found out that there will be an offset because of my husband’s child support debt. I haven’t gotten notice from irs that they will offset my refund yet, but upon doing my own research…i know they will. Should i wait til I get official notice that there will be an offset first before filing the injured spouse form? And also, can I e-file this form by itself or do I have to print it out and mail it in? Thank you!
Hi JC,
you should file injured spouse. I can’t tell you what you’ll get, but it will definitely be worth your while.
Hi Veronica,
Because you live in a community property state your refund will be divided. If you file married filing separately, your refund will all go to you–but you will file under the community property state rules, and, you may lose some valuable deductions as well. So filing separately may not help you much.
Hi Jan,
So I filed my taxes and was expecting return of almost 7600.00. When I only got 245.00 of it, I immediately got to digging. So what happened is that my wife had some student loans that never got paid. She got these loans a couple of years before we got married. My wife is a stay at home mom and doesn’t earn income. Not gonna say she doesn’t work cause 4 kids is a handful. So I guess my question is, this form….it will get my refund money that was offset back. I have been the only one earning income for the past 3 years. Please help. Thanks.
One more question… If I file “married filing separately” is there still a chance that my money will be taken since his name & social would still be on my tax return?
I live in California and got married in March 2014. My husband has not worked in a few years and owes back child support. If I file injured spouse in the state of California, will I get my full federal refund or only half as we are a community property state?
Im sorry. The earned income credit is based upon earned income but when I do my return they take the AGI? When they split the EIC for injured spouse would they look at my self employment income or will they also include my unemployment?
Hi Kevin,
Sorry, but this is my job. I get paid to prepare returns. I can’t answer questions with the numbers. I’d go out of business.
Hi Katie,
I do not believe the IRS will take any of your spouse’s refund if he files separately.
Im sorry I forgot: I live in NJ: non-community state
Whats more important earned income to total adjusted income?
Does my self employment tax hurt my refund?
Injured Spouse: Self Employment Income $6,000 net and $8,850 unemployment.
Other Spouse $12,000 income (W-2), $0 Federal Withholding .
3 kids: EIC $5434, Child Tax Credit $1,000, American Opportunity Credit $1,000
Does Injured Spouse work here. I have to pay (injured spouse) self employment tax around $400.
Any idea allocations or refund? Joint return refund about $7,000
My husband and I have always filed MFJ, but this year is complicated. My husband is the only one working; I stay home and have no income. I am on the offset list due to my student loan in default (I’ll be removed in June). I’ve read about the injured spouse form if we file MFJ. If we file MFS, will the IRS still take a portion because we live in a community property state (Texas)?
Hi Heather,
You didn’t strike me as the fraud type. So you will file as married filing jointly. And he will ask for INJURED SPOUSE relief.
It’s so confusing. He is “injured”, because he loses his share of the refund if they levy it for your student loan.
Innocent spouse relief is usually used in spousal abuse cases. I’m pretty sure (although I’ve never met you) that you’re not abusing him. Just a guess, but I’m thinking you’re probably a pretty nice person.
Oh no I would never file unmarried. I meant married but filing separately. Not looking to commit a crime just looking to get a refund lol! And so he should file innocent spouse relief not injured spouse? Thanks again for your help. I really appreciate it!
Hi Heather,
First, if you are married and living with your spouse and then file as “unmarried”, that’s considered to be tax fraud so you don’t want to do that.
You want to file as married filing jointly and your husband will claim innocent spouse relief.
Now, if you’ve made a payment arrangement for your student loan, then you shouldn’t have any problem with your taxes being garnished. But if you’ve never made good with them, you’re probably still on their hit list. It’s probably worth a phone call to your student loan agency.
Wow so glad I found this website. It’s been extremely helpful and so I was hoping you could help me out as well. Since having twins in 2012 I have been a stay at home mom and thus not earning income and thus my fiancee would just file the taxes and claim us as dependents. The last time I filed separately was in 2011 and my taxes were withheld due to a student loan debt. We just got married in 2014 and now I’m concerned if we file jointly the refund will be withheld again. Should we just file separately so not to worry or is much more beneficial to file jointly with an injured spouse form? And if we do file jointly should I just file the injured spouse form with the return in anticipation of a withhold or just wait to see what happens before I file? Thanks in advance for all your help!
Hi Chelsi,
I honestly don’t know. It does take a long time and from what I’ve heard, the different states have different rules about that too. If anybody out there has some personal knowledge on this issue, please make a post, okay? Thanks.
Sorry, Chelsi.
HI i live in Idaho. My ex husband owes back child support..somewhere around 12,000. they took his and his new wires taxes and told her if she wanted to get her refund she was entitled to she would have to fill out an injured spouse form. she never did..its now been six months. should i expect to get those taxes or not? and if so how long does it take?
Thanks
Hi Ashley Maree,
When you see something on the transcript like that with the 0.00 it just means that they are showing that an injured spouse claim was made, but there was no dollar transaction to it. I see that all the time on transcripts when I file for Power of Attorney, you’ll see the date I filed and a 0.00 charge next to it. I think it’s because it’s in an accounting program so every transaction needs a dollar amount and since there was no dollar amount that goes with submitting the paperwork they have to stick a zero in there.
Don’t be surprised that you haven’t heard anything yet. And yes, getting through on the phone is a major hassle. But I’ll save you some time, if you called today and managed to get through they’d say, “No we haven’t processed it yet, give us another 4 weeks. Don’t call back until October 28th.”
Now, if you don’t hear anything by late October then definitely do call. (I suggest a speaker phone and a bag of M&Ms, you will be on hold forever.) Make sure you ask for the “injured Spouse division” because there really is an injured spouse division. They should give you a clue as to when they should be done.
Now, I have called them and had them be really slow and I contacted the Taxpayer Advocate–who is the office you call when the IRS isn’t working the way it should. When I tried the Taxpayer Advocate’s office she told me–the Injured Spouse claims are that far behind, we can’t help you. So I’ll save you a step there, they’re just that slow.
But, on the plus side, you have proof that they have received your claim and they are processing it. So that’s good. But they are slow. Good luck.
Hey there! I’ve been reading over these Q & As for the past hour now. Thank you so much for all the informative answers! I’m sure you’ve probably already answered the questions I have but I’ve bee just skipping thought the posts and reading them at random so I may have missed them. Anyway, my husband and I married at the end of 2012. We filed for 2012 and got the refund, no problems. We filed in February for 2013 and then found out in May that I owed taxes from year 2010 so they took all but $18 of our $6330 tax refund. :/ We were devastated as finances have been a major issue for us the past couple of years. So we learned of the injured spouse claim and sent it in at the beginning of July. Being that it’s now the end of September I went back online and looked at our account transcript. At the bottom it says 971 Injured Spouse Claim Received $0.00. Does this mean they’ve received AND processed it? If so does the $0 mean we were not approved for it? Or is it still just processing and we just have to keep waiting? I’ve tried contacting the IRS to speak to a person about this but it’s like an act of Congress to find the right number & get someone on the phone. 🙁
Any insight would be VERY appreciated!
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Hi Cindy,
My opinion is that as long as the state of Maryland believes that it has a debt owed to it, it is legally enforceable. I would go ahead and file for injured spouse and proceed with fighting the Maryland tax issue. Until the issue is settled, Maryland has the legal right to pursue the funds. (That’s my tax opinion, not a legal opinion. I’m not an attorney and cannot provide legal advice. Gotta get that disclaimer in there.)
Hello,
This site and your answers are very helpful! Thank you for sharing your knowledge so generously.
Does filing an injured spouse form acknowledge the validity of other spouse’s debt? An offset against my husband from his 2007 Maryland state taxes appeared in 2014, causing the seizure of our 2013 federal and state refunds. We believe that this is the result of an error by the state. We are now in the process of scheduling a hearing and deciding whether we can afford to hire a tax attorney over $5500. (My husband did not work, and I only made $28K last year, so you can imagine the devastating impact this had on our family of four!)
Meanwhile, I am reading the instructions for the 8379, which refers to “your spouse’s legally enforceable past-due obligations.” I want to make sure that filing this form doesn’t mean that we won’t be able to continue to challenge the state of Maryland on this.
I called the IRS, and the person I spoke with seemed confused by the question, but he finally said he “wouldn’t think” filing the 8379 with the IRS would affect whatever challenge we have going on with our state taxes. But he didn’t sound confident about it…should I go ahead and file the injured spouse form so we can get at least some of this money back for the time being?
Any advice is much appreciated – I’m afraid to file it, and afraid not to!
Hi Randa,
I am so sorry for your situation. You need far more help than my little tax answers. I wish I could do more.
But here’s my tax answer anyway.
One–Florida is not a community property state. Just sayin’. There are only nine community property states, they are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. No Florida on that list.
Two–your problem is not “injured spouse”, your issue is “innocent spouse”. Here’s a link with information about that: http://robergtaxsolutions.com/2013/06/innocent-spouse-relief/
Here’s the thing–your safety and well being are the most important issue. You do what you need to do to stay safe. Make your move when it’s safe to do so, but whatever you do–keep yourself safe.
Now, once you get away, then you can apply for innocent spouse status. That’s where the IRS holds you harmless for all the taxes that your husband owes. You’re the perfect example of a person who should get innocent spouse relief.
So you do what you need to do to get to a better place. Once you’re safe, you can deal with the IRS–but I feel confident that you would qualify for innocent spouse relief and not be responsible for your husband’s debt.
In the meantime I will keep you in my prayers. Good luck.
Sorry to bother you again, I found the “INNOCENT SPOUSE” form # 8857…BUT, it says if I tell them how my husband has been treating me for 4 years, & how he says I OWE it to him to sign the taxes so he can get the married tax credits for having to support my sorry ***, the IRS will read the info to him!! This is why I can’t call the police on my husband, if I tell anyone he will stop feeding me and buying my medications and he said he doesn’t like being at home anyway so he can also shut off the electricity!! He says that he isn’t abusive because hitting me with “other things”(not his hands) and threats to harm me or deny me basic needs IS NOT ABUSE according to him!! He will not allow me basic needs if the IRS tells him I told them how he treats me!! HOW can the IRS expect a woman to tell on her husband if the IRS is just going to turn around and tell the angry husband??? I guess I have no other choice than to just be homeless in a ditch!! Thanks a lot GREEDY government!!
HI, I am terrified and I can’t find answers?? I signed for the mail about 2 months ago, I noticed the top letter was from the IRS, but I haven’t worked in years (chronic illness), so I just laid the pile of mail on the table and when my husband got home he opened it. Now, 2 weeks ago I overheard him on the phone giving my name and SSN to someone, then he set up a payment schedule. When he hung up the phone I asked him why he was giving someone my SSN, he said it’s for the IRS payments. I had NO idea what he was talking about so he showed me the letter I had signed for weeks earlier. I still seen ONLY his name so I asked him WHY do they need my info since I only file so my husband can claim me as a married/dependent since I can’t work and my health issues can sometimes be costly to him. Husband said there was another letter from the IRS in that pile of mail and it had my name on it. So I opened the letter and sure enough they are holding me accountable for my husbands greed!! He filed for his 3 kids tax credits in 2011 because the guy at the IRS said he passed the “tie breaker test”?? I have no kids, I didn’t know there is some kind of tax form for the ex spouse for child tax credits. I found the injured spouse form but my husband(is NOT a nice man), said if I send it in he will be BLAMED automatically and forced to pay for all of the returns he claimed on the kids!! He said its to late to send it now anyway because the first letter from the IRS actually came last summer (he then gave me an unopened IRS letter in my name from early 2014) and said as far as the IRS is concerned, they have notified ME many times!!! I said I would try to send it anyway since I will never be able to pay it back and he said if I do that he will be held liable for it and he will stop taking care of me all together, no food, no medications, no doctors, no more surgeries……I am so afraid, I wanted to divorce him last year but as soon as the attorneys heard me say I have no money and can’t borrow it they just ignored me. I married my husband in June 2011, he filed the taxes in 2012 but told me he was the TIE BREAKER and was therefore entitled to file since his ex would NEVER sign a release for child tax credits or sharing the CTC…..I am lost, I don’t know what to do, I called the tax counsel and the VERY nice lady told me there really isn’t anything I can do now? She said I should start checking the mail myself to avoid further issues but our mail box is 200 or 300 yards away, I can’t possible walk that far in my condition?? My husband said if I call the IRS behind his back then they will note it on his account and he will now what I did. I need help, my only hope was to find a way to get a divorce and the community property laws of Florida would make a division settlement of around $10K, IF HE PAID IT at all, then I could pay my lawyer and move back to my home state of MO. BUT, I have a paid off truck valued at around $4K, my husband has NO possessions that are no currently financed….that means the IRS will take MY truck for my sorry husbands dirty deeds. As if this man hasn’t done enough to me already, now the IRS is making it impossible for me to ever get away from him and still be able to afford a cheap roof over my head. I know he has filed each year on the kids and until this year he always got the returns (not that I ever profited from it), so I am sure if he wasn’t really entitled like he said he was, then they will be coming after us for the 2012, 2013, 2014(2014 was taken by the IRS as payment towards 2011)…I have always been told that if your married you have to file jointly OR separate. Since I haven’t been healthy enough to work in years I had no income to file on so I signed with my husband (he told me I had to) the H&R Block lady didn’t argue with him when he said I had to sign too because we’re married???? What is the truth? Is there anyway to save myself? My disease gives me plenty to worry about and deal with, I really didn’t have time on my hands to research current tax laws in Florida? Since finding the IRS letters I have been spending my time looking for answers but I found nothing regarding MY kind or injured spouse problem. IF, it’s not too late, I will send in the injured spouse form against my husbands wishes, this is something I simply cannot fix with a divorce and I DID NOT take the money, I don’t even have access to my husbands money or bank accounts/statements. He does what he wants when he wants and says I should feel indebted to him for buying me food and medicine for the past 4 years!! Is it really too late since apparently my husband has known about this for a year? I’ve heard ignorance is not a defense, but, I don’t have kids, and I had never lived in FL before Nov 2010…I can’t possible pay this debt, will I never be able to divorce my husband now?
Jan,
Thank you so very much. This helps me immensely.
-Dawn
Hi Dawn,
The documentation is here:
http://www.irs.gov/pub/irs-pdf/i8379.pdf
Look at page 2 in the upper left hand corner. The the bottom of the paragraph it says the the earned income credit is allocated to each spouse based upon each spouse’s earned income.
That’s your proof right there.
I filed an injured spouse allocation form for 2010, 2011, & 2012. I received my refund checks all in my name. Please note that my entire refund for all three yrs was made up entirely of the Earned Income Credit. Also, I was the only one who earned any income for those three yrs. Because of those two facts, several IRS agents have told me that although I live in California, a community property state, that Earned Income Credit is the only thing that is not considered community property. That you actually have to work to get the credit. When I asked the IRS for that in writing they told me to visit their website and I could locate it myself. Well, that’s not so easy to do. Its like reading a foreign language. Could you be of any assistance. Its imperative that I get documentation to support what the IRS told me. Thank You!
Okay, okay, sorry but my office is really small and we’ve been busy. The IRS changed some rules and the phone’s been ringing off the hook since June. (Nothing to do with injured spouse though.)
@Nicole,
I don’t delete the questions, I’m just way behind on answering. They don’t get posted until I manually approve them, otherwise you get all sorts of junk about buying love potions from some witch doctor and fake Prada shoes.
Hi Nicole,
You are marrying debt and a man who has not paid his child support. Take a good look at that. Maybe he’s past all that, maybe he’s a really good man and there’s a reasonable explanation as to why he doesn’t provide for his children.
That said, you can expect to have the IRS take your tax refund money every year for the rest of your life until this is settled.
If you marry him, I recommend filing separately until the debt issues are taken care of.
Hi Kim,
my best guess is that any refund that would have been coming to you is yours and not your husband’s because of his self employment. Without seeing the return, I can’t honestly say. But, I don’t think you’re wasting your time filing for injured spouse.
Just a Follow up
Follow up
Good Morning Jan .Just inquiring to see if there was a response to my question. It seems the only way I can check my question or response is if I put a new comment. I’m not sure if it is an error on my end.
I posted a question yesterday, checked today for a response and noticed it was deleted. Is there a reason why?
I need advice. I am looking forward to being married the end of this year. My fiancé has outstanding medical bills and child support arrears. How will this affect my tax return and can my paychecks be garnished do to this? This are all issues that he had prior to us being together 5 years ago. I am just worried the funds that I have and may gain will be at risk. I already have people telling me that the government will take my funds if they are unable to retrieve anything from him. Is this true? Please help. I don’t want my marriage to have this kind of stress.
Im curious on a few things. I filed an injured spouse form back in march. I did not make any money only my husband did. The offset was due to his student loan. We have 3 children and live in texas. And he is considered self employed. With all the info i have given you am i looking at getting the full refund, partial, or none at all. Ive called the irs several times and they said they are still working on my case and other times they say no one has even started my injured spouse… Am i waiting on nothing??
Hi Randy,
since all of the income is yours, it’s highly unlikely that your wife would get any refund back at all since she didn’t earn any of the income and didn’t pay any of the tax. The only exception is if you are in a community property state where half the your income is hers also. The community property states are:
Arizona
California
Idaho
Louisiana
Nevada
New Mexico
Texas
Washington
Wisconsin
Hi Allison,
You filed your return, the IRS took your money. Then you file for injured spouse and the IRS is still keeping your money. How can that happen?
Basically–it means the IRS thinks you owe them money. One way or another. Here are some possibilities:
1. You have some type of outstanding debt also like a student loan.
2. The refund that should have been with the tax return would have been attributed to your husband and not to you therefore, the IRS keeps it.
3. You may have filled out the paperwork incorrectly.
I’m guessing you did the paperwork right, and it’s more likely number 1 or 2. But every so often I find that someone did do the paperwork wrong and they need to resubmit it. Make sure you double check.
Hi Billie,
I hear you loud and clear. Once the state or the feds grab your money from a lien, getting it back is almost a lost cause.
Now since you do have an injured spouse claim, there’s a possibility that you might get your money, but I wouldn’t hold my breath.
At any rate, it’s going to take weeks–several weeks.
H&R Block did amend your return, that’s what they should do. If you are notified that indeed you will never see your money from the state, then you may have some recourse with block. They won’t pay you your refund, but you might get a refund on what you paid them for the tax prep. But that’s about as good as you’ll get there.
On the plus side, you’ve at least paid down the debt a little. I know, it doesn’t help much, but that’s about as good as it’s going to get. Sorry.
H &R Block filed my husband and I taxes and they filed the injured spouse form for the federal and was suppose to fille the form for the state. However I got a letter from the state they keep the refund for a federal tax lein of mine. Now the tax lein is for a debt prior to our marriage. And H & R Block admitted they did not file the injured spouse form however amended the tax return, However the state of missouri said they already sent the taxes to the federal and there is nothing they can do. The federal said the state has to take care of it. What do I do? Im getting the run around from the state, federal, and H&R Block.
Hi I filed an injured spouse return after mine was taken to cover new husbands debt. Found out today through IRS my injured spouse refund was take too. How can this happen