Injured Spouse Relief

Sad Couple Sitting On Couch After Having Quarrel

 

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.

_______________________________________________________________________

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

571 thoughts on “Injured Spouse Relief

  1. Hi Frank,
    You can still file injured spouse with no refundable tax credit. The two refundable credits that we normally think of are the EIC and the additional child tax credit–those are asked about in question 8. The other refundable tax credits are the American Opportunity Credit–for college tuition, and those other things–the fuel tax credit and the weird stuff on line 71 that you almost never see. (Or I almost never see anyway.)
    Those questions are more for the IRS to look at which spouse should get those refundable tax credits–not if the spouse should be able to claim the refund or not. Hope that helps.

  2. @ Amanda,
    Your husband filed injured spouse–that means that you are the one with the debt, right? So, if you were to file separately–who would have gotten the refund? If it would be you–then your husband filing injured spouse won’t help. Sorry.

  3. Hi…I have a question about Line 9. Why would you need a refundable credit in order to be considered an injured spouse. I have a situation where the husband has an old federal student loan. The wife has no ties to this debt and is not required to pay it back. By reading Line 9, I think it means if no refundable tax credit, then you are not an injured spouse…meaning the spouse’s portion of the refund will be used in the federal offset.

  4. my husband fild injared spouse and the irs took our refund what the whole perpuse of having that form. also we live in texas.

  5. Hey Nikki,
    I think I’m missing some information because something’s not making sense. What does your tax return look like if your husband files as married filing separately? If he gets anything that way, I’d try that–it’s better than nothing.

  6. Hey Rebecca,
    It’s never 100% positive–but generally, you can call the IRS to check for an offset before you actually file your tax return. I did that with a client last year–she was paying off her student loan and we were waiting for her to be taken out of collections before we filed her tax return. It all worked out okay. Good luck to you.

  7. I was wondering… If I were to do my 2012 taxes in 2013, and I have been repaying my student loan and it’s in good standing… do I call the FMS number before I file to find out if there will be an offset? Or is that information known after you file? According to ERS the guy that helped me do the repayment, he said after 9 months my student loan will come out of default and it won’t affect my taxes.

  8. Florida put a judgement against me illegally for support I do not actually owe. I My mother took over 200,000,00 but Florida did not want to hear it. I do not work do to illness but pay her every month. My husband is the only one that works . But when we went to E-File we were told we were unable to file injured spouse on his behalf. Something changed this year? Anything we can do. He should no have his refund taken. thank you

  9. Hi Beth,
    You don’t have to be paying on the loans for your husband to file the injured spouse form. Now–I do recommend that you try to set up a payment agreement and settle your outstanding loan balance. If you do, and you make your payments on time for long enough–you won’t be in collections and the IRS won’t take your refunds anymore.
    In the meantime–your husband should file for injured spouse.

  10. Hey Emily,
    It’s a little crazy but the IRS does have a formula for doing the Injured Spouse. (Sharing it with the rest of the world would be nice, but trust me, they do have some logic to this.)
    It’s not like your refund will be an automatic 50/50 split. They base the injured spouse allocation off of what your tax liability is versus your spouse’s. Basically, if you were to file Married Fililing Separate–they would allocate it like that. Special credits like EIC and the child tax credit are allocated based upon who claims the children.
    In a community property state–once the refund is allocated–they make the assumption that half of that belongs to your spouse–so community property state people get less money in an Injured Spouse claim than the same circumstances in a non-community property state.

  11. @Shaina,
    You won’t find any answers on Where’s My Refund. Forget about that site. You can try calling the IRS 1 800 829-1040 to follow up. You’ll be on hold a lot, and transferred a lot–but eventually, someone will be able to tell you if your Injured spouse form has been received.

  12. My husband and I filed jointly this year .. we just found out that the its is holding the refund due to student loans I acuired before we were married. He is the only income. Do I have to be paying on the loans for him to be able to claim injured spouse and receive some of the return ?

  13. WE have been filing injured spouse since we got married. My husband has at times had back child support – whenever that is involved they have only taken half. He has a student loan in default but caught up on child support. We filed the injured spouse just in case, and they left us with less than 1/4 of the total refund. We live in Idaho which is a community property state. One year we got like 100 back on a couple thousand dollar return. I don’t get it. I can understand when we only get half but more than that seems excessive.

  14. Thanks for you help!

    One more question… I sent my form a few weeks ago and I just want to make sure they received it and what not. I don’t want to have to wait even longer because I didn’t know they didn’t get it or there was a problem that I won’t hear about for months when I can just follow up on it now. Where or who would I contact to check into it?
    If I can go to wheres my refund.. What do I put in as an amount since I don’t know what it will be?
    I did check there with my original amount and it doesn’t say anything about them receiving it yet or anything about processing so i’m stumped and stressed and just want to make sure its on the right track as we are desperate for the money.

    Thank you!

  15. My husband’s taxes were prepared incorrectly for 2009, and he was not made aware until he started receiving notices from the IRS saying he owed (when he went to file his 2010 taxes.) So the IRS kept his return from 2010, and now they took the rest of what he owed from our joint return for 2011. We just got married in Nov. 2011, IRS “where’s my refund” said we would be getting 1,xxx.00 amount, but we only received half due to he owed back child support (which we weren’t aware of). So now, if I file an injured spouse form, will they give me my share of what they took for his IRS debt/back child support and then send him a notice that he owes again?

  16. Hi Jenny,
    You can’t go by the Where’s My Refund site. (It’s had several problems reported this year.) I doubt the the $0 has anything to do with your 8379 form being accepted.
    The IRS says they need about 14 weeks to process the 8379 form–if you were getting $0 back, it wouldn’t be up on Where’s My Refund yet.

  17. Hey Amanda–
    You spoke to someone at the IRS and they told you you’d get your money in March. I’d trust that and not the “Where’s My Refund” website. There’ve been many problems reported with Where’s my Refund so go with what the real person told you.

  18. Hi Candace,
    I honestly don’t know. The IRS doesn’t give us their exact calculations. I would think that since all the income is yours, the children are yours, and the tax credits should be yours–that the refund should mostly be yours. But–I know better than to second guess the IRS.

  19. Hi Cathy,
    I always figure it’s better to file the injured spouse form even if you don’t think you’ll get anything–just in case. Gambling winnings won’t give you an earned income credit, and I don’t think you had enough to qualify for an additional child tax credit–but like I said–file anyway. Assume you won’t get anything and then be pleasantly surprised if you do.
    There used to be a phone number you could call before the fact to find out if there would be a federal offset–but the number I used to call at the IRS was discontinued. I would try the regular IRS–1 800 829-1040. They should be able to give you an answer. (Fair warning–you’ll be put on hold a lot and transferred a couple of times.)

  20. Hey Juanita,
    In your case, I would amend my return and claim head of household and let your husband file as married filing separately. He hasn’t lived with you during the last 6 months of the year so you may legally file using the head of household designation. I think that’s the best solution for you.

  21. Hey Ali–
    It doesn’t matter when your husband incurred the debt–now that you’re married the debt does to both of you. That’s why your joint tax refund gets nabbed for his college debt.
    Now–you might be able to get some of your refund back by filing the injured spouse form. Basically–if you were to file as married filing separately–would you get a refund? If the answer is yes, then I would definitely file for injured spouse to get whatever refund would be coming to you.

  22. @Rebecca–
    1. Yes it is the stress, and 2. It’s a really common mistake–that’s why I sort of made a guess and included the link about the addresses.
    You’re almost better off regular mail with the certified return receipt requested than the overnight. Sometimes I think they toss the overnights in a corner to open later.

  23. Hi Amy,
    I really can’t predict what the IRS will do. If the children are yours and all the income is yours–I’d would have thought that the whole refund would be yours as well.
    I do think the 6 week time line sounds reasonable though.

  24. Husband and I filed taxes on electronically on Jan 19th, and of course got notice of an offset instead of a refund. I then mailed a form 8379 on February 9th. Tonight on the ‘where’s my refund’ site it said adjusted amount $0 on the left side. Does this mean that the 8379 has been received and processed and we are getting nothing back?

    If I made a mistake on the form is there a chance to fix it? (I am so confused)

    Thanks for all the answers you give,
    Jenny

  25. Hi Lisa,
    That’s a great question! No, you don’t have to wait for the money from his ex-wife. The IRS will refund the money to you. If people had to wait for something like that–no one would ever get their money.

  26. Hey Gina,
    The refund will be more like 1/2 of whatever you’d get. The formula for the community property states is kind of funky–it’s like they figure what you’d get and take 50% of that for the debt. (But it’s better than not filing injured spouse at all.)

  27. I filed injured spouce IRS told me they recieved it and that i should recieve my tax money before the end of march well I went on the website where is my refund and it says they took my taxes for my husbands back debt so i dont understand why or is that legal

  28. My husband and I filed our federal taxes and the injured spouse form electronically and it was accepted on Jan. 21st. My husband is a stay at home dad and I made all the income for 2011. Our return should be $7344 as a joint return. He owes back child support and we would have had our whole return offset without the injured spouse form. If I would have filed separately, I would have only got around $250 back. We do not live in a community property state. What should I expect back for a refund. I see some posts on other sites where people have gotten the whole refund if their spouse hasn’t worked, and others say differently.
    Thanks

  29. So happy I found this question and answer article about form 8379! I only wish I had found it sooner. Here is my ‘issue’: My husband owes back child support. His case was just re-opened in a new state in August. We decided to go ahead and fill out the injured spouse form just in case. I now think that was a mistake and we should have waited given the difference between 8 and 11 week processing times….maybe we would have gotten our return and not had to wait, but at least we would know.

    Regardless, we filed the form. We have one child together and I did not make any earnings from a w-2, however I did have about $3000 in prize winnings. Will the prize winnings help me to be able to garner more of the refund for my child? I know I tried to do a mock married filing separately and it said I didn’t get anything back. But then again, TurboTax doesn’t have an option for me to claim my son as mine. We do not live in a community property state.

    I still think there is a chance we will get our whole return back, but it’s being delayed by the filing of an unnecessary form. Did you know there is a number you can call to find out whether or not your federal return “may” be offset? 1-800-304-3107

  30. Here is my question and it may be a bit confusing. My husband and I have been seperated since May of 2011. He doesn’t have a permanent address and still uses mine. I file my own taxes and don’t really know the laws to well on filing. Long story short. I did married filing joint(because we are not legally divorced) instead of head of household. Now my entire refund was taken for his past due student loan. My question is should I do the 8379 form or should I do the amended form. Or should I do both. We have two dependents. I am so confused.

  31. I actually have a question… my husband had went to college while were still dating and he never even finished a semester. Our tax refund was taken entirely by the Department of Education for his lack of paying on those loans. Should I receive my share back? I made more money than him this past year? I did not know if the money would fall back on me because we were married a couple months after he quit college? Thank you!

  32. Ohhhhhhhhh ohhhhh! I guess I sent my form to the wrong address!!? I sent the form to my local IRS service center, instead of the address shown belonging to each state! I will send another one to the correct address overnight! Will this caus a problem? I wonder if my local center will forward it? and can I do it overnight to that address or is it another address for over night? I really need this to get there already, i Will also do a confirmation receipt! Thanks for the eye opening ! That had he confused! Its probably the stress!

  33. Hi I am trying to find out when I can expect my refund this year. I received an email on the 26th of January saying that my taxes had been excepted and were being processed. I did file an injured spouse form with my taxes because my husband owes some back child support that is about 5,000 after becoming unemployed. I have 3 children that are mine and not his and my income was the only income for the entire 2011 year…. I already received my state tax check that was offset.. It was supposed to be 120 and I received 64. So with that being said will I get to keep my entire federal refund and when will I get it. The refund site says six weeks from the date of filing if all is correct???? Any ideas about how it will go this year..
    Amy
    Illinois

  34. Hi Rebeca,
    The best way to send anything to the IRS is certified mail return receipt requested and make sure it goes to the right address and this link will guide you: http://www.irs.gov/file/content/0,,id=105690,00.html if you did send it to the right address give it at least two weeks before you call the IRS and check on the receipt. I know how hard it is when you’ve got young ones at home and money’s tight. Good luck hang in there. You’ll be okay, but it’s going to take some time. Eventually you’ll get this worked out. The thing about being married is that the government counts you as one unit so your debts are your husband’s debts and vice versa. Unfortunately you had to learn it the hard way.
    For what it’s worth I had another client who did the payment agreement with her student loans and after making enough timely payments they took her out of collections.

  35. My husband and I live in Tennessee. We efiled on Feb 3rd and were expecting over 10k on our return. My husband has back child support but he only paid in $147 in
    taxes in 2011. 99% of the return is from my income. We were told by our tax person and our attorney that that could only take the $147 so I didn’t file injured spouse with my return. Today they only deposited $1,079.. they took almost all of it. I will file injured spouse. My question is this.. I know I am entitled to get my money back but where is my money setting in the mean time? Do I have to actually get it back from his ex wife or is it held for a time period?
    Thank you in advance for your answer!

  36. Hi Juju,
    I’m thinking that you should gather your paperwork together and mail it in! The only possible outcome is to help you, and it can’t hurt you. You just might come out ahead. Go for it. (And yes, that does make sense.)

  37. Not sure if my first question went through, due to wrong email:

    Thank you so much for answering our questions!

    We live in a community property state. We have to do an injured spouse form. Will the refund be split 50/50 (half to injured spouse and half to loan) because of where we live?

    Thank you

  38. Thank you so much for answering our questions!

    We live in a community property state. We have to do an injured spouse form. Will the refund be split 50/50 (half to injured spouse and half to loan) because of where we live?

    Thank you

  39. We filed our taxes Feb 1 and accepted same day! I went on to check the status of our refund and found out Feb. 8 that it was suppose to be deposited on Feb. 15, and saw note 203, called FMS since i knew i had student loans in default, but didn’t expect them to offset the refund since i don’t work. It turns out they did an offset on my husbands refund because we filed married jointly, its crap that they can do that! but it is what it is. So on Feb. 15 since i did not see the refund in our account, i was certain they had taken it anyways, so my husband filed out form 8379 and mailed it to our nearest IRS office, which is maybe 49 minutes away. I just want to know how long do i wait to check if the form was received? do i call my IRS office, or do i call IRS to find out if the form was received? i know i have to wait 8 weeks (April 16) but i want to know when they received it, so i can start counting for my 8 weeks from date of receipt. I read a lot and i know after 8 weeks or 30 days if i don’t hear anything from the IRS, our next step would be a tax advocate. I would really like to know if there’s a number i can call 5-7 days from the day we mailed out the form to get a confirmation the form was received??????
    *and what really worries me is that if we’ll get any of it back*?????? I already entered a 9 month repayment plan,and my student loan should get out of default after those 9 months and 15-45 days to complete, so pretty much 10mth+. The guy from ERS (debt collectors) said that after completing the program my taxes should not be affected. i don’t know if that is 100% accurate or should i get that in writing??? My husband is the only one that works, and this refund was suppose to get us out of a lot of debt, and unfortunately we are now facing more hardship than ever, we only have $32 dollars to survive on until my husband gets paid 9 days away, we running out of food =( . We don’t get much left after our bills are taken out, and we have 2 kids and one in the way. please help!!!!!!!!! really want to get some answers!! thanks a bunch!! appreciate any input!

  40. Hi Angie T–
    It’s quite possible that you still have money coming. Is the outstanding debt less than your total refund? Then you’d get a check. If the debt is more than your refund, expect nothing.

    One thing for certain though–the IRS won’t do the injured spouse allocation for you. If you need to file that form, you have to do it yourself.

  41. Hi Steph,
    That notice is pretty much for people who owe money. It sounds like your student loans have caught up with you. What you’re going to need to do is file the injured spouse form–it’s a pretty safe bet that your husband is the injured spouse, but make sure first–just in case he’s got some past debt you don’t know about either. You can mail the 8379 form in separately. Good luck.

  42. Hey Carl,
    For what it’s worth, a whole bunch of the January filed returns have had problems getting the refunds out. There’ve been all sorts of notices from the IRS about things being late. I’d give it another two weeks. Keep checking the site, but it’s not you–I’m pretty sure it’s the system.

  43. Hey Veronica,
    I know the answer to this one–http://www.irs.gov/file/content/0,,id=105690,00.html

    I thought I posted it earlier but it wasn’t there. Your return goes to
    Department of the Treasury
    Internal Revenue Service
    Fresno, CA 93888-0002

  44. Hey Billy in Kentucky–
    I don’t think you did anything wrong by sending in the 1099 form. And yes, you’re right, they don’t give you much information with the injured spouse form either. I sometimes think the IRS does that on purpose–but I’m kind of cynical.

    I can’t guarantee that it helps, but when I’m filling out the paperwork and e-filing I always say that the children belong to the injured spouse–not the one that owes money. (Unless the child truly isn’t yours–like in a blended family, but if you’re both the parents of one child, say the child belongs to the injured spouse.) Do that so the child tax credit and other child related credits and deductions go on your side.

    That’s my big advice. I know it’s not much, but it’s the best I’ve got. Hope that helps.

  45. Hi Admin Roberg,
    Thank you very much for your replies to my questions…you have been extremely helpful!

    Another question has come up:

    My husband when to court today and his Ex Wife finally dismissed the child support arrears he owed! He no longer owes the $5,000.00.

    The only debt he now owes is around $5,000 back taxes due to the Federal Govt and this was owed previous to our marriage.

    We do live in California, a Community Property State. Because his past debt is Federal, and not owed to California, would they still take into account the 50% Community Property aspect of this?

    Again, I am the only one on our tax return that has earned any income. He is disabled and not getting any benefits and has zero earnings for 2011.

    If I file the Insured Spouse document, along with our Married filing Jointly Return, and am expecting $4,000.00 back, would they still take into account that we’re in California and still garnish half, or would that not matter since it’s $5,000 in Federal back taxes that he owes, and it has nothing to do with California taxes?

    Thank you,

    Mindy

  46. Okay, my husband and I have been married since October 29, 2009. The first time we filed our taxes together was in 2010 for the 2009 tax season. We filed married filing a joint return. My husband owes back child support for his 5 year old daughter who lives in Tennessee. (regardless of the fact that he pays 700 a month in Child Support, and we travel 6 hours one way every other weekend to visit her) Nevertheless, I DID NOT file an 8379 Injured Spouse form that year because I was not aware of it. I have 3 children, that do not belong to my husband, and the portion of my return that I was entitled to, was used for his tax offset and what I DID receive was not the full amount that I should have. With that being said, last year I was informed about the Injured Spouse form and when all was said and done, I was able to receive what I was entitled to, 3 1/2 months after filing. My husband and I were filing our taxes last night, and our tax preparer asked me if I had ever filed a 8379 for the year that we first filed together. Informing her that I did NOT, she suggested I contact the IRS. I called them this morning and after being connected to the correct individual who worked in Tax Law, I explained my situation. She instructed me to fill out an 8379 Injured Spouse form along with all copies of W-2’s and 1099’s for the year of 2009, and mail them directly to the Department of Treasury for the state I reside in. She also informed me to allow 8 weeks for processing. Any thoughts or comments on this???

  47. my spouse and i filed jointly i just found out their is an offset from military debt. if the irs is giving me a estimated check date does that mean i will be getting an refund? i worked all year not him. as well as for an injured spouse form does that have to be sent in to get some of the refund back or in some cases the irs take it upon their self? if your refund is offset does that mean garnished completely or the irs is just going to take some?

  48. I went to check where our refund was and it had a note on the bottom saying that our refund maybe less due to an offset. Is this a normal statement or does this only go on those who owe money? I do owe students loans but it was before my husband and I got married, I have not worked in 3 years so is it possible that they took our tax money? we did file jointly, is it to late to file injured spouse?

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