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
So I have filed Form 8379 to try and get back a portion of our Tax return. I filed Married Joint and husband has defaulted loans. My question is do I have to file additional paperwork for State Refunds? We have a refund coming from two states. I lived in AZ and I’m expecting money back and my husband lived in CA and had a small refund.
My husband and I filed MFJ as we do every year. I did not work at all this year Im a stay at home mom 2. there was an offset for the entire return because of my student loans. So my husband sent in a injured spouse form separet (because he didnt know until the day our refund was do) . On part 3 #16 shouldnt the # of exemptions be 3 injured spouse (for my husband and 2kids) and 0 under other spouse.
We files thru terbo tax an it forced him to put 4 under exemtions insted of 3. does that sound right to you?
And on line 15 should the 11,900 be divided or should it all go under injured spouse since i didnt work at all
Hello my husband was owing before we get married and now we filed married jointly tax return with my own child not his biological all the money was taken for his offset ,i did not work all though the year am on zero income but my child tax i filed form 8379 ,i read through everyone comment on here and you said i have to include that the child is mine ..but in the form 8379 there is no places thats says such to write that the child is mind …i want to know if i can make another 8379 and send or i wait am confused ,i just posted it yesterday pls enlight me thanks
I have been reading your Q&A forum for hours trying to possibly find an answer to my question, but am not completely getting a complete answer. So, here goes. My husband and I live in a community property state. We just got married last year. I have past due student loan. We filed taxes on 1/31 this year. The website said we would get our return on 2/8. On that day I check our bank and nothing was there. I found a phone number for the Dept of Treasury FMS that you put in your social security number & they will tell you if you have any offsets to your taxes coming. Wish I had known that number a long time ago! I check it and there it says they offset our entire refund of over 6000$. *gasp* That is a terrible feeling expecting that much money & finding out you get none! So, I do some research and find the 8379 form. I filed it immediately! I know that you don’t know a formula for the community property states as I have been reading, but I am curious about what they will give back and what they can keep with regards to earned income credit and child tax credits. The reason I ask is because my husband is the only one who works. I did have $2600 of income on a 1099 of which I owed 248$ in taxes on. My husband has 3 children that are HIS not mine that he claims. Out of the entire refund the majority is the child tax credit (3000$), the EIC (2300) and then about 900$ in overpaid taxes. So, from what I am reading it can be 50/50 it can be other things. Knowing that the majority of his refund is the EIC and the CTC do they spare him of claiming that? I am trying to figure out if they did do a calculation of 50% if they would do 50% of the entire refund or just 50% of the amount he overpaid? Which would be about $450? And also, I had just got a letter from a collection agency last month for my student loans and called and made arrangements with them, so was absolutely shocked when I found out they offset the return! They also said if I made 6 payments with them my loans would be referred back to the DOE and I would be in good standing and could apply for more student loans and go back to school. I am assuming if that was the case they would not try to offset anything next year?
oh and we live in wv does this make a difference im lost on all of this and no one is helping me please someone help me cause i think its bs that they are gonna take all my husbands money for something that is in my name
im so confused on this me and my husband filed taxes on the 30 of jan and was supposed to get our money on the 7 of feb but it said they was taken cause of some dept that neither of us new about so they said for my husband to do the injured spouse form cause it was in my name from years ago and we just found out today will he get his money back or what i dont know nothing about this i have never had to do something like this is it better for us to do seperate or what should we do ty for ur information
Darlene,
Your share of the MFJ deduction is 5950. That’s what you put down.
Hi K in Texas,
If it makes more sense to file separately then do so.
Hi Tera,
Well it sounds like you will get at least some refund. You’ll have to read what it says to find out what the offset notice says.
Like so many others who have posted questions here I am frustrated and confused. I live in Michigan and got married early in the 2012 year. I have 2 children who are biologically mine (so there is a decent EIC involved). My husband stays home and takes care of the house and the children. All information on our taxes was based on my income and withholding. If we would not have gotten married I would have filed as head of household and he would not have filed at all. Unbeknownced to either of us he had some kind of back debt….the entire refund was taken to offset this debt. (He has now spent literally HOURS on the phone trying to track this debt down. The only thing that he has learned that it has something to do with unemployment. He cannot get any info on what year(s) the debt is from OR how much the debt is…….very hard for him to fight it that way) Anyway, I have elected to file form 8379, and that is what my question is about. Question #15 appears that I MUST use $5950 as my standard deduction instead of $11,900 (standard deduction for married filing jointly). I know If I do this it will HUGELY impact what my refund should be. This is what I don’t understand. I AM married………….my husband IS my dependent……….and I AM NOT responsible for this past debt. Can I enter $11,900 (standard deduction for married) on line #15 of this form 8379? Thank you…….I’m pulling my hair out.
I found out today that our full refund was taken for my student loans. I am a SAHM and had no income. My husband can file injured spouse and possibly get a little back. Is amending our return to MFS an option? MFJ refund = 1900 (all taken) MFS refund = 1600. We would get much more filing separately than he would from injured spouse. Is it possible to amend it and have it approved under these circumstances? Thank you.
just found out today that since i efiled our return and then mailed in the IS form after the offset occured, that my refund was released to the department of education for my husbands debt. not just for me, but for everyone this is wrong any way you look at it!
Do you know the flow of the injured spouse form through the IRS. Do they verify that your return is correct and the refund amount is correct and then send it to the injured spouse department? If that is not the process then do you know what it is.
@Lissette,
Your refund will be released after the offset, but give it some time.
Hi Lissette,
I don’t have all the information so I can’t tell you what your amounts are. But, the important thing is that you need to file for injured spouse. You can claim you child as your dependent. You should bet most if not all of your refund. I doubt you will be denied.
Hi Alishia,
You will want to amend your tax return and change it to MFJ and include the injured spouse form. You can’t just file the 8379 because you filed separately, there’s no need for an 8379. You have to amend to filing jointly first.
If it says “Your refund will be deposited on Feb 8, and there is a tax thing about the offset at the bottom, does that mean that I will still get my refund?
https://www.facebook.com/groups/272344846175042/426327660776759/?ref=notif¬if_t=group_comment_reply
If any of you guys have Facebook, this is a group that have similar experiences dealing with Injured Spouse claims. Alot of helpful info there 🙂
forgot to say we live in arkansas
one more question. are our tax refunds immediately released after offset to the dept of education?
hello….im so glad i came up on this site. My husband and I filed a joint return.(our first together) *were suppose to get back a nice amount. He is 100 % disabled with no taxable income. we were expecting our refund to be deposited yesterday but on monday morning i went to the wheres my refund site and got the notice my refund has been offset. my husband called the FMS and it stated they have kept the entire amount for his debt to Dept of education from over 15 years ago , alot longer than weve even known each other. I sent form 8379 priority mail on monday to the IRS. its expected to be delivered today. I have a daughter who lives with me but is not his biological daughter. my questions are since he had no taxable income what would you estimate my return will be? will it still be only a partial amount? and is there a possibilty i could be denied for the injured spouse allocation? thanks for all you do.
Hello. My question is, I already filed my taxes as Married-But filing separate from my husband because, he is in default with his student loan and he owes back taxes, but h has an arrangement set up for that. Would i be able to go back and file a form 8379 before my taxes are refunded back to me? I have gotten confirmation that both my state and federal taxes have been received. I only worked for 4 months last year and I have a 3 year old son, but because i filed separate from my husband, I didnt get the full credit for my son. I am just wonderin woul this be the best way to get all of the credit for my son? Thanks!!
Hi Tina,
Have your husband claim all of the children. Allocate the deductions based upon where they need to go. Your state income tax to you, his to him. Split the house. Get it done as soon as possible. Good luck.
Hi Latesha,
I can’t tell you what you’ll get, but you should file injured spouse and you should get something. It will take about 12 weeks.
Thank you so much for making this forum available and up to date.
I need to file form 8379 and the IRS has already approved my return. I know I am able to file this after the fact, but is there anything I can do before the offset occurs in two days when the refund is scheduled? If not, specifically on the form, I am having a hard time knowing which itemized deductions go with me (the non-injured spouse) or my spouse (the injured spouse). Is my spouse able to take the full itemized deduction we listed or do I need to allocate a portion to my spouse (e.g. income tax/real estate tax) and some to myself? Also, equally important, since my husband is the major financial contributor and I only worked a few months last year would he be able to claim all of our dependents (5 plus one for himself) and I just claim myself; or, do I have to claim at least one of our dependents? Any help would be greatly appreciated. We are in desperate need of at least my spouses portion to keep our mortgage lender from foreclosing on our home. Sidebar: I have entered payment arrangements with the collection agency handling my student loans, but not long enough to cancel the offset, which was misinformation from the agency. Unfortunately they advised me (verbally), that entering the arrangement would allow us to keep our refund.
Again, thank you for any assistance you may be able to provide.
Thanks Sherry,
Last year they got to be almost 12 weeks, but hopefully it will be better this year.
Hi Greg,
You definitely should file injured spouse. You’ll probably get everything.
Hello. Me and my husband filed taxes and they took all of it due to student loans my husband owes. Well im going to file injured spouse but i didnt work last year. We live in texas where i heard its okay if i didnt have any income to report. But excatly what percent would i get back since on the form you cant even add in the EIC? Also how long will it take to get a check back? Thank you in advance, La’Tesha
Thanks so much Jan 🙂 I have downloaded form 8379 and filled it out. Says it takes can take up to 8 weeks to be processed (since our return has already been processed), I am sending it to them first thing in the morning:) I am keeping my fingers crossed it will be faster since our return was filed, processed, and, sent all within less than a week but I won’t hold my breath!! LOL I am also taking care of the loan problem ASAP so I won’t ever have to deal with this again! Thanks for your help and I will post back here to give you an idea of a time frame the form actually takes 🙂
Me and my wife filed married joint and have one child my wife is a stay at home mother with no income.. We were supposed to get $5602 back and two days before it was deposited it said on IRS wheres my refund it was offset and only 1200 will be deposited. My wife has Students loan debt if I file the form 8379 will I be able to get the rest of the refund or am I out what I was originally supposed to get. the debt was made before we were married. We also live in ohio don’t know if that makes much difference any help would be awesome thanks.
Nikki,
file the insured spouse form when you file your tax return. The form number is 8379.
Hi Sherry,
You will need to file the injured spouse form. Your husband is the injured spouse and you will have him claim both of your children as his dependents on the allocation form.
You won’t be able to electronically file the injured spouse form now. Mail it in right away though.
Why did that loan show up after all these years? I don’t know. I’ve seen some crazy stuff. Contact the loan office and talk to them. You’ll want that sorted out so this doesn’t happen to you again in the future. Good luck.
my question is my husband owes back child support and student loans before we got married ,he didnt work all year only me can they still take my taxes and if so what can i do to stop them
Hi there!! First, I want to say how very happy I am to have found this site, it is full of helpful answers:)
I have a question about a pending tax refund…My husband and I have been married since 2001 and have filed a joint tax refund every year since although I do not have any income (besides SSI) and he is self-employed. We have 2 children together as well. I became totally and permanently disabled in 1999. In 1995, I went back to college briefly and took out a student loan. Needless to say, my health started becoming an issue in 1996 and I never finished. After I was diagnosed with a degenerative nerve disease, I contacted DOE and was advised to file for Forgiveness on the loan, which I did, and assuming it was taken care of, didn’t hear anything for years. Long story short, I checked our refund status on the IRS site and it says refund approved and deposit scheduled to be sent February 5, 2013. But underneath that there was a “Tax topic pertaining to your situation” link so I clicked on it and it gave me the publication regarding child support, other non- taxes owed information. I did some research and found a phone # to TOP and entered my Social Security # and it said I had an offset of $5,075.00, the amount of our refund!! I have received nothing at all prior to this so you can imagine my shock!!! My questions are these? Why, after all of these years, are they doing this? And what can I do? The entire refund is based solely on my husbands income as I had none!! Why is he responsible? I didn’t even know him at the time of the original student loan???? What should I do or what can we do? Can he file an Injured Spouse form? If so, can we file that electronically since we filed our return that way? BTW, we used the Taxslayer software. Thanks in advance for any help you could provide!!
Again, thank you so much Jan, for all the time you spend helping guide people to the place that they need to be. So…happy I found this website!
Michelle
Thank you Jan!!!
Hi Michelle,
Sounds like you were more help to yourself! Good research. Sorry, I was answering your question like it was for “injured spouse”–that’s what I was expecting here so I didn’t read your question with “both eyes.”
Anyway, innocent spouse will stop the levy action–so go fax that form in right now!
Spoke with IRS today regarding Innocent Spouse, she confirmed (after looking it up) that once this form is filed, all collection activity has to stop AND they cannot hold any refund while a determination is being made, she sounded surprised, but it is stated in their own publication of questions and answers for Innocent Spouse. Also, they didn’t have my federal tax bill listed on the FMS TOP #, but after waiting to talk with them, yep, my return would have been taken for offset without being listed on the offset line.
Thanks again for all the time you take to help people!!
Michelle
A couple more things…the line you call to find out if there will be a tax offset…would the debt (4000) be listed on that line if they intended to levy refund? Because there is nothing for either of our SS #’s listed on that line you call. Also, like I said before, we basically recieved a “bill” saying what they figured we owe after the cancellation of debt was figured in. Don’t they automatically take your refund for any debt or do they have to notify you that they will levy your refund? We haven’t gotten any levy letters.
Thank you so much Jan. But it didn’t really asnwer my biggest question. First..a letter was sent to both of us saying we owed the debt, to his address (because that’s where we lived together), in June of 2012, didn’t say anything about a levy, but…the amount we owe is 4000, he could file first, but he won’t get more than 500 back, if any, because of early 401 withdrawl. I was only assuming they would take my return because they show “us” owing money. I was hoping to file the Innocent spouse, before I file my taxes, so that would stop any collection activity until a decision was made, then I could file my tax return and get my refund while the decision was pending. That was my major question, it actually states that on the IRS site, that when you file innocent spouse, it stops all collection activity, and they would not keep any refund you file during the process. Does that make any sense? Also, the site says that using that Innocent spouse form (which I have filled out and ready to fax) if you qualify for any of the other 3, one being insolvent, that they would automatically, using the info given on that form, choose which one is best for your situation. I read a lot, but I wanted someone to help me to make sure I was understanding it correctly. Yes, we were absolutely insolvent, no doubt about it. But I want to stop collection activity so I can file my taxes, then see what route to go. Thoughts?
Thanks again for taking your time to help!!
Michelle
Hi Jenny,
I’m so sorry about the death of your husband. Now since your husband died in February, even if you could claim injured spouse for him–it wouldn’t help you much because basically most of his refund is no longer relvant–it’s all on you now.
You will have your lien lifted in September. I recommend filing an extension and not actually filing your tax return until after the lien is lifted (but before October 15th). I’ve done that with other clients with student loan debt and it turned out just fine.
Hi Michelle,
A couple of things here:
First–you are no longer married so injured spouse is NOT what you want to do here.
Now the IRS is holding you accountable for the cancelled debt because that was back in 2010 when you were married. You say you know nothing of the cancelled debt–there’s a posisbility of you claiming “innocent spouse” but just as a heads up, it’s really difficult to win an innocent spouse case. You are divorced now, so that’s a plus for you. But usually you have to prove abuse — filing the petition is pretty emotionally draining.
So–what’s left? Are you on speaking terms with the spouse? You two could negotiate. Now, forgive me for being nasty, but if the debt is really his, this is what I’d do. Don’t file yet. Let him file first and let the IRS take his refund. They don’t care who pays the debt so long as they get their money.
Next, were you and your husband insolvent at the time? Can you prove it? There’s a form–982 where you can reduce (and sometimes even eliminate) paying tax on your cancellation of debt if you can prove insolvency–that means that you owe more money than you have assets. If you were in bankruptcy–that would also work.
File the 982 form after he pays his portion of the debt. That way, the tax is already paid before you go to file your return. Then, after that’s processed, you file your tax return free and clear.
One more thing–I’m guessing that the IRS will take your refund if you file, but you might want to call them and double check that. If you just got an “oopsies” letter, they won’t levy your refund. If you’ve got the levy your refund letter–then you know for sure they will.
Tracey J–
STOP! It’s against the law for you to file as Head of Household. You cannot claim your husband as a dependent. NO! Don’t do it.
File as Married Filing Jointly and claim injured spouse. Anything about claing a spouse as a dependent is on tax returns for foreigners. Are you an American? Is your husband? If you’re answering yes–don’t do HofH–it would be fraud.
Hi Chelsea,
Since all of the refund belongs to your husband, he should file injured spouse. Send the form in with your 1040.
On the other hand, if your refund is large enough–it might be a good way to just knock out that debt so it’s not hanging over your head any more. But if you’re really strapped for cash–file the injured spouse. Pay that debt when you get on your feet. Good luck.
I have student loan liens on my tax refunds from before I was married. Every year my husband has filed Injured Spouse and they keep like $400 towards the debt and refund the rest. My husband passed away in February 2012, I have since got on a repayment plan and the lien will not be lifted til September 2013. In the meantime can I file married joint and Injured spouse on my husband even though he is deceased? I read here that the IRS considers you married for the whole year when your Spouse dies. This is why I thought I might be able to still file him as an Injured Spouse and get the refund back minus the usual $400.
Thank You,
Jennifer
Question…Cancellation of debt..Capitol One, not even sure where or why that happend, never got 1099c, 2 years later, after divorced, irs shows cancellation of debt from 2010 to my ex husbands ss #, in 2010 it was joint return. So, I am ready to file my taxes, I have a healthy return coming, but…I don’t want to pay for ALL of that (of which I have no idea what it is), it raised our tax by 4000. So, if I file innocent spouse, from what the IRS website says, while it is being decided I can go ahead and file my return and they will NOT hold any refund I have due…is this just a farce to take my money refund? I don’t want to have to fight to get my refund, I would rather have to pay my portion back to the irs, he wouldn’t get enough of a refund to cover this anyways. Help!!
My husband has been out of work for the last 2 years, he was cut off of his workers comp and now owes back child support. When I file taxes this year im seeing on the irs website that I can claim him as a dependent but will child support take what little refund we will have or should i file the form 8379. I plan on filing HOH he has no income for the entire 2012 calendar year. any suggestions?
We filed injured spouse last year along with Injured Spouse Allocation form. This is my debt, not my husbands. So I am expecting to get that letter after we file our taxes, even though they never notified us before. I joined the military and got out and 6 months later was told I needed to pay back 1800 due to a bonus I got. We are military and my husband was deployed 7 months last year. I’ve been looking for work and can’t find anything. I know 1800 is not much to pay if payments are paid, but we feel like we only have 2 pennies to rub together by the end of the month. Can we file for injured spouse again this year due to financial hardship? I’m trying to finish my degree but with all the moving around we do its hard to finish with colleges picking and choosing what credits they want to take. It’s all my husbands money so I’m not sure what to expect. What’s the best thing to say to ensure we will see a refund? Oh big question, can I file both forms with my 1040 or do I have to wait?
Tammy,
When you file joint, you are joint and severally liable. If you have any doubts, it could not hurt you to do the injured spouse form.