Not always. But the bill does not go away on its own. You have to ask for relief.
It can feel unfair to get a bill for something you did not cause. Here is why it happens. When you sign a joint return, the law makes you both responsible for all of the tax. That is true even if your spouse earned all of the income. IRS: Innocent spouse relief. The law also gives you a way to ask out. It may cover all of the tax, part of it, or none. IRS Publication 971.
This page explains why the bill reached you, the three kinds of relief, what the IRS looks at, and the dates that matter.
If a bill has shown up and you are not sure why, book a free call. We read the IRS letters with you, one at a time. It does not commit you to anything.
What this page covers
This page is about federal income tax on a joint return. State tax bills have their own rules.
- If you want to see what the IRS has on file first, see How do I find out exactly what the IRS has on me?
- If the IRS has sent a final notice of intent to levy, see The IRS is about to levy or file a lien. Can I appeal?
- If the bill is unpaid payroll tax, see I owe payroll taxes for my business. Am I in trouble?
Why the bill can come to you
A joint return makes you both liable for the whole tax. This is called joint and several liability. It covers the tax shown on the return. It also covers tax the IRS adds later, even if that tax comes from your spouse’s income, deductions or credits. IRS Publication 971.
That stays true after a divorce. Your divorce decree may say your ex will pay. The IRS can still collect from you. IRS Publication 971.
For our clients, the first thing we do is pull the IRS transcripts for each joint year. Then we trace each amount back to the income or deduction it came from.
Three kinds of relief, one form
There are three kinds of relief for people who filed jointly. IRS Publication 971. You ask for all of them on one form, Form 8857. You do not have to pick one. The IRS looks at your information and applies the type, if any, that you are eligible for. IRS: Innocent spouse relief.
If you are not sure where you fit, book a free call. We read your letters against the three kinds with you, one tax year at a time.
When your spouse’s errors raised the tax
This one is called innocent spouse relief. It is for an understated tax. That means the IRS decided the total tax should be more than the return showed. IRS Publication 971.
You must meet all of these conditions. IRS Publication 971.
- You filed a joint return
- The understated tax is due to your spouse’s errors
- When you signed, you did not know and had no reason to know about it
- Looking at all the facts, it would be unfair to hold you liable
Errors can be unreported income, a wrong deduction or credit, or a wrong value for an asset. IRS: Innocent spouse relief.
If relief is granted, the tax, interest and penalties it covers can generally be collected only from your spouse. You stay liable for anything that does not qualify. IRS Publication 971.
You may get partial relief if you knew about only part of an error. The IRS gives this example. You knew your spouse left $5,000 of gambling winnings off the return. An audit found $25,000. If you meet the other conditions, the tax on the $20,000 you had no reason to know about can qualify. The tax on the $5,000 does not. IRS Publication 971.
When you are no longer together
This one is called separation of liability relief. It divides the understated tax between you and your spouse. You are generally responsible only for the part given to you. IRS Publication 971.
One of these must be true when you file the form. IRS Publication 971.
- You are divorced
- You are legally separated
- You are widowed
- You were not a member of the same household as your spouse at any time in the 12 months before you file
Living apart counts only if you are also estranged. A temporary absence, such as for work or military service, does not count. IRS Publication 971.
This relief does not cover tax on an item you actually knew about when you signed. The IRS has to prove you knew. IRS Publication 971. It also cannot refund tax you already paid. IRS: Separation of liability relief.
When the return was right but the tax was not paid
This one is called equitable relief. The IRS considers it only if the first two kinds do not apply to you. IRS Publication 971. It is also the only kind that covers an unpaid tax. Instructions for Form 8857.
An unpaid tax is tax shown correctly on the return but never paid. The IRS gives this example. A joint return showed $5,000 due. You gave your former spouse $2,500, and they promised to pay it all. Nothing was paid. You both still owe the $5,000. Instructions for Form 8857.
Equitable relief can also cover an understated tax. Either way, the question is whether it would be unfair to hold you liable. IRS: Equitable relief. The relief generally must relate to your spouse’s income or items, with some exceptions. It is closed if you knowingly took part in filing a fraudulent return, or if you and your spouse moved assets to each other as part of a fraud. IRS Publication 971.
The IRS weighs many facts. No one fact decides it. IRS Publication 971. They include these.
- Whether you are still married
- Whether paying would leave you unable to cover basic living costs
- Whether you knew or had reason to know about the item, or that the tax would not be paid
- Whether a divorce decree makes your ex solely responsible for the tax
- Whether you got a benefit beyond normal support
- Whether you have kept up with your own taxes since
- Whether you were in poor physical or mental health
A divorce decree can still matter here. If it makes your ex solely responsible, that counts in your favor. If you knew or had reason to know, when the decree was made, that your ex would not pay, it counts neither way. If it makes you solely responsible, it counts against you. IRS Publication 971.
For a client who hires us, we prepare Form 8857 and file it. With their authorization, we deal with the IRS for them from there.
What “did not know” really means
For innocent spouse relief, you have to show you did not know. The IRS asks two questions. Did you actually know? Would a reasonable person in your place have known? IRS Publication 971.
Knowing about income can count even if you did not know it was taxable. Say you knew your spouse received dividends. Relief is not available for that income, even if you did not know it had to be reported as taxable. IRS Publication 971.
Knowing where money came from is a different matter. Knowing the source of an item is not enough, by itself, to show you knew about the item. IRS Publication 971.
To decide if you had reason to know, the IRS looks at facts like these. IRS Publication 971.
- What the item was, and how big it was next to everything else on the return
- Your and your spouse’s financial situation
- Your education and business experience
- How involved you were in the activity behind the item
- Whether you did not ask about something a reasonable person would question
- Whether the item broke from what earlier returns showed
If you are not sure how this applies to you, book a free call. We sort each item with you into what you saw and what you did not.
The benefit question
The IRS also asks if you got a significant benefit from the understated tax. That means a benefit beyond normal support. Normal support depends on your circumstances. A benefit can arrive years later. IRS Publication 971.
Our clients tell us what they saw and what they were told. We line that up against the returns and bank records, and we write the explanation.
If there was abuse or financial control
You may still get relief even if you knew about an error. You must have been a victim of spousal abuse or domestic violence before signing. And you must not have challenged the items on the return because of fear. IRS: Innocent spouse relief.
Under equitable relief, the IRS also looks at abuse and financial control. Financial control can include keeping you from seeing financial information. It can change how other facts are weighed. IRS Publication 971.
If this is part of your story, book a free call. We go through what the form asks and who will see it before anything is filed.
If you did not sign or agree
If you did not sign or agree to a joint return, your joint filing is not valid. That is separate from innocent spouse relief. Follow the instructions on your IRS notice and call the number on it. IRS: Tax relief for spouses.
A forged signature or signing under duress can also mean there is no valid joint return. If the IRS finds your signature was not valid, you are removed from the account. You can explain this on Form 8857. If a valid joint return is found after all, the IRS then considers relief. Instructions for Form 8857. If you signed under duress, you may still have to file a separate return for that year. IRS Publication 971.
What relief does not cover
Relief is not open for every bill. Innocent spouse relief cannot be claimed for tax on these. IRS: Innocent spouse relief.
- Your own income
- Household employment taxes
- Individual shared responsibility payments
- Business taxes
- Trust fund recovery penalties for employment taxes
That list does not rule out income tax on a joint return that comes from your spouse’s self-employment. The IRS says relief can cover tax due on your spouse’s income from employment or self-employment. IRS: Innocent spouse relief. Its examples include self-employment income left off a joint return. IRS Publication 971.
Equitable relief has a few exceptions for your own income. One is when your spouse’s fraud caused the tax. IRS: Equitable relief.
You are also not eligible for any year in which one of these happened. IRS: Innocent spouse relief.
- You signed an offer in compromise with the IRS
- You signed a closing agreement with the IRS covering the same taxes
- A court made a final decision denying you relief
- A court case on that tax year ended in a final decision, you took a real part in it, and you could have asked for relief but did not. IRS Publication 971.
Relief is also closed if you and your spouse moved assets to each other as part of a fraud. For the first two kinds of relief, the IRS has to prove this. IRS Publication 971.
Once the transcripts are in, the first thing we check for a client is these limits, year by year. If relief is not open for a year, we would rather tell you early.
Injured spouse is a different thing
Injured spouse relief sounds the same, but it is not. It is for when your share of a joint refund was used to pay your spouse’s debts. IRS: Injured spouse relief. You ask for it on Form 8379, not Form 8857. Some people need both forms. Instructions for Form 8857.
The dates that matter
The IRS says to ask as soon as you learn of the taxes due. IRS: Innocent spouse relief. You do not have to wait for collection to start. You can ask during an audit, for example. 26 CFR § 1.6015-5. Do not wait until you have every document. IRS Publication 971.
Innocent spouse and separation of liability
You generally must file no later than 2 years after the IRS first tried to collect from you. IRS Publication 971. The law words it as 2 years after the IRS began collection activities. 26 U.S. Code § 6015.
These are some of the events that can start that clock. IRS Publication 971.
- The IRS used your refund to pay a joint debt from another year, and told you about your right to file Form 8857
- The IRS sent a notice of intent to levy, with your right to a hearing
- The government sued you to collect the joint debt
- The IRS filed a claim in a court case involving you or your property, including a bankruptcy
Two IRS web pages word this differently. They say 2 years from a notice of an audit or taxes due. IRS: Innocent spouse relief. IRS: Separation of liability relief. If you can, file before that date too.
But do not assume you are out of time if that date has passed. Under the Treasury rules, a bill, a notice of deficiency or a filed lien notice does not start the clock by itself. 26 CFR § 1.6015-5. Equitable relief may also still be open. 26 U.S. Code § 6015.
Equitable relief
The time limit depends on what you are asking for. IRS Publication 971.
- For a balance you still owe: you generally have as long as the IRS has to collect. That is usually 10 years from when the tax was assessed, and that period can be paused.
- For a refund of what you paid: you generally have 3 years from when the original return was filed, or 2 years from when the tax was paid, whichever is later.
If you got a notice of deficiency
This notice has its own 90-day clock. You should also file a petition with the Tax Court before those days run out, and raise innocent spouse relief there. The clock does not stop while the IRS looks at your Form 8857. Instructions for Form 8857.
If a levy notice or a notice of deficiency has arrived, book a free call. We find the dates on it with you. If you hire us, we file the request from there.
What happens after you file
The IRS contacts your spouse or ex
By law, the IRS must do this. There are no exceptions, even for victims of abuse. It tells them you filed, lets them take part, and tells them its decisions. IRS Publication 971.
The IRS says it will not share your personal information, such as your current name, address, phone numbers, employer, income and assets. Other information you give it could be shared. If you are worried about privacy, black out personal details in what you send. If you go to Tax Court, your spouse or ex may see your personal information unless you ask the court to withhold it. IRS Publication 971.
The review takes time
The review may take 6 months or longer. Keep filing and paying your taxes as usual while you wait. IRS: Innocent spouse relief.
Collection pauses, but the debt still grows
While your request is pending, the IRS generally cannot collect from you for that year. IRS Publication 971. The law bars levies and court collection cases during that time, apart from narrow exceptions. 26 U.S. Code § 6015.
Interest and penalties keep adding up. If you still owe after the request ends, the IRS can start collecting. Its 10 years to collect also gets longer by the time your request was pending, plus 60 days. IRS Publication 971.
For our clients, we handle the IRS letters and calls from here, and we follow the request to decision.
If you disagree with the decision
The IRS sends a preliminary letter to both of you. Either of you can appeal within 30 days of the letter date. That means your ex can also appeal a decision in your favor. You appeal on Form 12509, sent to the address on your letter. Do not send it to the Independent Office of Appeals. IRS: Innocent spouse appeals.
After that comes a final letter. You can then ask the Tax Court to review it, within 90 days of the final letter. You can also go to the Tax Court if you have no final letter 6 months after you filed. IRS: Innocent spouse appeals.
The Tax Court may be limited to what was given to the IRS, plus newly found or previously unavailable information. So give the IRS everything you want considered. IRS Publication 971.
If a denial letter has arrived, book a free call. We go through the reasons with you, and the date your appeal is due.
When a client hires us for an appeal, we prepare the case and represent them before the Appeals Office.
Can I get back what I already paid?
Sometimes. Innocent spouse relief and equitable relief allow refunds, within limits. Separation of liability relief does not. IRS Publication 971.
- You must ask for it on Form 8857
- It must be a payment made with your own money, and you must be able to prove that
- Payments made with the joint return do not count, and neither do joint payments or your spouse’s payments. Withholding and estimated tax count as paid with the return
- Time limits cap how much can come back. Instructions for Form 8857.
A refund from your own return that the IRS used on a joint debt can count, and no proof is needed for that. Your share of a joint refund from another year may count too. IRS Publication 971.
If you have already paid on this bill, book a free call. We line up your payments with you and mark which ones could count. If you hire us, we make the refund request for you.
Who works your file
On our team, Abby Fernandez, JD, is an attorney admitted to the Ohio Bar and the U.S. Tax Court. Betsy Miller is an Enrolled Agent. The same small team stays on the case from the first call to the last.
What to gather
- Every IRS notice or letter, in date order
- Your joint returns for the years involved
- Your divorce decree or separation agreement, if you have one
- Bank statements or canceled checks for anything you paid
- Anything that shows who handled the household money
Our clients give us what they have. We track down whatever is missing.
Where this leaves you
A joint return makes you both liable, and a divorce decree does not change that for the IRS. Relief exists in three forms, and you ask for all of them on Form 8857. The IRS decides based on your facts, including what you knew and whether holding you liable would be unfair. For innocent spouse and separation of liability relief, the deadline is generally 2 years after the IRS first tried to collect from you. Requesting relief generally pauses collection, but interest and penalties keep adding up. The IRS must contact your spouse or ex.
If you want a second pair of eyes on your notices, IRS Help offers a free 30-minute consultation. There is no pressure, and we read your IRS records before anyone commits to anything. You can reach us through the contact page.
This article is general information about federal tax relief for spouses. It is not legal or tax advice about your situation. What applies to you depends on your notices, your tax years and your facts.
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