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

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.

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Attorney answers 3


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.


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. Office number: (860) 255-7423 Website: Our reply to your question has not created an attorney-client relationship. It should not be considered legal advice. You should contact an Attorney who can give you legal advice after acquainting themselves with the specifics of your case.


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 714-708-2593 Mr. Lively is a Certified Tax Specialist by the State Bar of California Board of Legal Specialization. He can be reached at 714-708-2593 or individual seeking legal advice for their own situation should retain their own legal counsel as this response provides information that is general in nature and not specific to any person's unique situation. Circular 230 Disclaimer - Advice given in this response cannot be used to eliminate penalties with the IRS or any other governmental agency.

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