If IRS takes our joint refund check for my husbands back child support, can I still get 1/2 of the refund in Nevada?

Asked over 1 year ago - Boulder City, NV

I live in Nevada, a community property state. My husband owes arrears and the IRS will be taking our entire refund again this year. Am I not entitled to 1/2 of the refund? How do I get it? We filed joint and have two children of our own. I was a homemaker last year and did not earn money outside the home, but it is my understanding that half of what my husband earned is mine, so wouldn't 1/2 the refund belong to me? Our refund was almost 7,000. We pay to the arrears every paycheck also.

Attorney answers (3)

  1. Richard Edmund Hawkins

    Pro

    Contributor Level 16

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    Lawyers agree

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    Answered . It's not that half of what he makes is yours; it's that you each have have a claim to the entire earnings.

    Also, although I will defer to the tax folks, a person generally needs income to rely upon the "innocent spouse" rules.

  2. Linda Simmons Campbell

    Pro

    Contributor Level 14

    2

    Lawyers agree

    Answered . In noncommunity property states you can file an injured spouse claim and receive the share of the refund that you were entitled to receive. Unless you have credits that were specifically yours, it is unlikely that you would receive a portion of the refund since you did not work. In community property states the IRS can take all or a portion of your share. Some items are considered separate property even in community property states but from the information you have given it does not appear that you had income/capital gains/distributions from separate property.

    info@cttaxhelp.com Office number: (860) 255-7423 Website: www.cttaxhelp.com. Our reply to your question has not... more
  3. Henry Daniel Lively

    Contributor Level 20

    Answered . Normally in a circumstance such as yours, you would file an injured spouse claim to separate your portion of the refund. However, it does not appear that you would be successful with an injured spouse claim with the facts presented due to you having no income. Therefore, your best bet is to pursue this in the family law court. The court could made an order dividing the refund.

    H. Daniel Lively, Esq., LL.M., CPA Certified Tax Specialist, CA Board of Legal Specialization dlively@... more

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