Whether you are currently married, separated, or divorced, if the filing status you used was married filing joint, then both of you could be held liable for the tax debt.

In the case of a married-filing-joint tax return, both spouses are responsible for the tax debt (including penalties, interest, or additions to tax) arising, even if you later divorce. This holds true even if a divorce decree states that only one spouse will be responsible for any back taxes arising from previously filed returns.

Though this may seem harsh, there may be relief available. Under IRS Innocent Spouse Relief

You filed a joint return. Later the IRS examines the return and finds there was under-reported income due your spouse/ex. If you can prove you did not know or had a reason to know the under-reported income existed you may qualify for Innocent Spouse Relief.

In addition, if improper deductions, credits, or basis were reported on your married filing joint return that were claimed by your spouse/ex may qualify for Innocent Spouse Relief if you had no knowledge or reason to know.

The IRS also offers other similar relief plans such as Separation of Liability Relief.

If you filed a married filing joint return, the IRS would allocate the understated tax (plus penalties and interest) between you and your spouse/ex, and each person would be liable to pay the balance attributable to their income.

To meet the requirement for this relief you must meet the following requirements:

  • You are no longer married or legally separated
  • You were not a member of the same household for the 12-month period you before you file for relief
Even if you do not qualify for Innocent Spouse Relief or Separation of Liability Relief you may qualify for Equitable Relief.

You must be able to prove it would be unfair to hold you liable for the understated tax. The IRS will consider all factors on your claim for relief.

Example: One factor they may take into consideration is abuse and the exercise of financial control by your spouse/ex.

If your spouse owes back taxes from a tax return, they filed before you were married, then you would not be liable for the debt unless you reside in a community property state. In that case, you must follow the state laws where you reside.

Options when a spouse owes back taxes

This table gives you a quick reference of liability based on the status of your marriage. You can learn more about each situation below.

Marriage Status Tax Liability What You Should Do
Tax debt incurred BEFORE you were married None – your spouse is solely liable Apply for Injured Spouse status if you refund gets intercepted to pay the debt
Tax debt incurred DURING the marriage in a year where you filed jointly Potential liability – must prove you had no knowledge of debt and could not be reasonably expected to know, and that you received no benefit from the refund Apply for Innocent Spouse to get full tax debt forgiveness for any back taxes incurred
Tax debt incurred AFTER your separation If you filed jointly, you may be held liable Apply for Separation of Liability relief to assume partial liability

Do you or your spouse owe a lot to the IRS and fear you won’t get caught up? Take a look at our solutions.

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If your spouse incurred tax debt before you married…

On the hook for your spouse's tax debt

You have no liability for tax debt incurred before you entered the picture officially. So, if your spouse owes back taxes from before you got married, then those debts are solely theirs to repay.

As a result, you may qualify for “Injured Spouse Allocation” status if the IRS intercepts your refund to cover back taxes for your spouse. If you file jointly and don’t get a refund because the funds went to pay their debt, you can get your part of the refund back.

File Form 8379 for Injured Spouse Allocation

If you filed jointly the year your spouse incurred the back taxes …

In this case, your liability depends on a few things:

  1. Did you know about the filing issues that led to the back taxes?
  2. Are you still together?
  3. Have you benefited at all from the fraudulent IRS tax return?

If you can prove that you didn’t know your spouse filed incorrectly, you may qualify for “Innocent Spouse Relief”. However, you must be able to show that you had no knowledge of the understated taxes, and could not have reasonably known.

In addition, you can’t benefit from any refund received for the year your spouse the understated taxes.

However, if you can prove you did not know about the false filing and didn’t benefit from it, then Innocent Spouse may apply. If you qualify, you would enjoy full tax debt forgiveness on any back taxes owed.

If you weren’t together when the filing occurred…

In some cases, joint filings can occur even if you aren’t really together. Maybe you’re still married, but you live apart and are heading for divorce. Your spouse may file jointly because that’s what you’ve always done.

In this case, you can qualify for “Separation of Liability Relief,” which means that you are no longer married and wish to assume partial liability. If you can show you are divorced, legally separated or have not lived together for at least 12 months prior to your claim, then you may qualify.

Failing relationships make for messy tax situations

If you want to qualify for any of the statuses listed above, be ready for the IRS to get into your business. The IRS will evaluate if you received any significant benefit from filing by your spouse or ex. “Significant benefit” means the IRS will look at your life to see if you got a gift or something else of value. If you want separation of liability, then you’ll need to show you’re really separated.

In addition, when you file for Innocent Spouse, they will contact said spouse to get any “relevant information.” In other words, your former estranged spouse may try to use the opportunity to make sure you’re on the hook, too. If they can show that you knew, then the best you can hope for is a separation of liability.

Q:Am I responsible for my spouse’s tax debt before we were married?

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A: No. If your spouse incurred tax debt from a previous income tax filing before you were married, you are not liable. However, if you file jointly then any tax refund that you receive may be intercepted to pay off part of the debt. Your spouse cannot receive money back from the IRS until they pay the agency what they owe.

If your spouse owes back taxes when you tie the knot, file separately until they repay the debt. Otherwise you won’t get your refund. If you file separately and the IRS intercepts your refund, then you can apply for injured spouse status. This will ensure you get the money you’re due from your tax returns.

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Q:If my husband owes back taxes can they take my refund?

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A: If you were married when your spouse incurred the back taxes, then yes. When you file jointly, then you assume “joint and several” liability. That means you’re on the hook for any taxes your husband owes. If you file separately (individually), then you would not be liable because you both assume individual liability.

However, just because you are not liable, it doesn’t mean your tax refund won’t be intercepted. Even if you weren’t married when your spouse in incurred the debt, the IRS may intercept your refund now. In this case, you simply apply for injured Spouse status to get the money you’re owed.

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If you’re facing problems with the IRS through no fault of your own, connect with a certified tax professional to talk about your options.

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Article last modified on October 3, 2022. Published by Debt.com, LLC

contributor

Joe Valinho

Justice Tax, LLC President & Tax Resolution Expert