Written by attorney Henry Daniel Lively

Injured Spouse Rule (Not Innocent Spouse Rule)

Many taxpayers are unaware that there is an injured spouse rule. Yes, I said "injured spouse rule." Most taxpayers have heard of the innocent spouse rule. It is not the same thing. With the innocent spouse rule a taxpayer is claiming that they are not responsible for the tax liability of their spouse that they filed a joint income tax return with. That is not the subject of this legal guide. Here, we are going to discuss the "injured spouse rule."

With the injured spouse rule, if your spouse has unpaid tax liability from prior years or owes unpaid child support, spousal support, and/or student loans, and you file a joint return with him or her, the IRS can seize the refund from the joint return to satisfy these debts. However, if only one spouse owes the liability shouldn't they only take that spouses portion of the refund? This is where the injured spouse rule comes in.

If this situation happens to you, then you are an injured spouse and must file an application with the IRS. The application tells the IRS that you are an injured spouse and that they should only take a portion of the refund to satisfy the debt. This application can be made before or after they take the money from your refund.

An Injured Spouse claim is made on Form 8379, Injured Spouse Claim and Allocation. You can find this form at along with the instructions. The form asks you to allocate the refund that is attributable to each spouse. Then the IRS will make the actual calculation and divide the refund between you and your spouse.

If the IRS has already taken your refund you will file the form at the same IRS Service Center where you filed the original income tax return. If you are claiming relief before the IRS has seized the refund, attach Form 8379 to your income tax return when you are filing it.

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